STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRENDA SHERIDAN, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7791GM
) LEE COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers and, by unanimous agreement, Tallahassee, Florida, on May 4-7 and June 2, 1992, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Respondent Department of Community Affairs:
Michael P. Donaldson Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100 For Petitioner Brenda Sheridan:
Attorney Thomas W. Reese
123 Eighth Street North
St. Petersburg, Florida 33701 For Respondent Lee County:
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507
Tallahassee, Florida 32314-6507 STATEMENT OF THE ISSUE
The issue in the case is whether certain Lee County plan amendments are not in compliance for the reasons set forth in the petition of Brenda Sheridan.
PRELIMINARY STATEMENT
By Petition for Hearing dated November 16, 1990, Brenda Sheridan requested a hearing on whether the plan amendments that Lee County adopted in September, 1990, are in compliance.
As set forth in the Prehearing Stipulation filed April 30, 1992, and as further amended at the final hearing, the issues are:
1/ Whether the amended plan is consistent with the criterion of an inventory and analysis of private potable water suppliers, as required by Rule 9J-5.011(1).
2/ Whether the amended plan is consistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment on unique wildlife habitat, as required by Rule 9J-5.012(2)(a) and (b).
3/ Whether, in terms of future land use designations, soils, topography, floodplains, and natural resources, the amended future land use map and plan are consistent with the criterion of supporting land use suitability analysis, as required by Section 163.3177(6)(a) and (8) and Rule 9J-5.006.
4/ Whether, in terms of densities and intensities, the amended future land use map is consistent with the criterion of supporting data and analysis, as required by Rule 9J-5.005(2).
5/ Whether the amended future land use map is consistent with the criterion of the identification of potable water wellfields permitted to pump less than one million gallons per day and their cones of influence, as required by Rule 9J-5.006(4)(a).
6/ Whether the amended plan is consistent with the criterion of a policy identifying regulatory or management techniques for limiting specific and cumulative impacts of development or redevelopment upon wildlife habitat, as required by Rule 9J-5.012(3)(c)1.
7/ Whether the amended future land use map and plan are consistent with the criterion of an objective directing population concentrations away from known or predicted coastal high hazard areas, as required by Section 163.3178 and Rule 9J-5.012(3)(b)6.
8/ Whether, in terms of the Traffic District Program, the amended plan is consistent with the criteria of provisions establishing adequate level of service standards for roads, ensuring that the required transportation public facilities will be available concurrent with the impacts of development, and correcting infrastructure deficiencies, as required by Section 163.3177(3)(a)1 and 3 and (10)(h).
9/ Whether the plan amendments concerning transportation are consistent with the criterion of financial feasibility, as required by Section 163.3177(2).
10/ Whether the amended plan is consistent with the criterion of a policy demonstrating how the local government will coordinate with the Charlotte Harbor Management Plan, as required by Rule 9J-5.012(3)(c)14.
11/ Whether the amended plan is consistent with the criterion of two planning timeframes, as required by Rule 9J-5.005(4).
12/ Whether the following provisions of the amended plan are consistent with the criteria of material appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development and describe sufficiently the implementation of the plan, as required by Section 163.3177(1) and Rule 9J-5.005(6); for objectives, are specific, measurable, intermediate ends that are achievable and mark progress toward a goal, as required by Rule 9J-5.003(61); and, for policies, are ways in which programs and activities are conducted to achieve identified goals, as required by Rule 9J- 5.003(68): the 2010 overlay map; Objective 39.3 and related policies; Objective 41.1 and related policies; Objective 75.1; Objective 77.9; Objective 84.3; and Objective 104.1; Policy 2.2.2; Policy 2.3.2; Policy 15.2.2; 13/ Policy 27.2.1; Policy 27.2.2; Policy 27.2.4; Policy 37.1.3; Policy 37.1.5; Policy 38.1.6; 14/ Policy 38.4.1; Policy 38.4.3; Policy 77.2.2; Policy 77.2.3; Policy 77.3.1; 15/ Policy 77.3.2; Policy 77.4.2; Policy 77.4.4; Policy 77.7.5; Policy 83.1.4; and Policy 88.1.1.
16/ Whether the amended plan is consistent with the criterion of internal consistency, as required by Rule 9J-5.005(5), in the following respects: the Traffic Circulation Element and the five year transportation capital improvement element; Policy 1.7.6, which applies the 2010 overlay map only to "final development orders or building permits," on the one hand, and Objectives 2.1 and 2.2, Goal 12, and Section XIII(a) of the amended plan, on the other hand; Goal 2, which requires financial feasibility, on the one hand, and the Traffic Circulation Element and financially feasible road map, on the other hand; Policy 2.2.2 and Section XIII(a) of the amended plan; 17/ and the amended future land use map, on the one hand, and Goals 71, 75, 77, and 79, Objectives 74.1, 75.1, 77.3, 77.4, 79.1, and 87.1, and Policies 77.2.2, 77.4.4, 77.11.5, and 83.1.4, on the other hand. 18/
19/ Whether the amended future land use map and plan are consistent with the Charlotte Harbor Management Plan, as required by Section 163.3178(2), in terms of:
Protection of all floodplain functions (Objective 4);
Requirement that all postdevelopment runoff approximate natural surface water flow in terms of rate, quality, hydroperiod, and basin (implementation action under Objective 5);
20/ Discouragement of dredging new channels and adding more passes to existing pass maintenance programs (implementation action under Objective 8);
Requirement that highway corridor planning in undeveloped areas consider suitability of adjacent land for urbanization (implementation action under Objective 10); and
21/ Requirement that site development plans provide for maintenance of habitats of listed wildlife species (implementation action under Objective 11).
22/ Whether, in terms of reducing the platted vacant lots, the amended plan is consistent with the Regional Plan.
23/ Whether, in terms of discouraging urban sprawl, the amended plan is consistent with the following provisions of the state plan: Section 187.201(5), (8)-(10), (13), (16)-(18), and (20)-(22).
The witnesses called and exhibits admitted are identified in the transcript. Rulings on the proposed findings in the proposed recommended orders are set forth in the appendix.
The above-styled case was consolidated for hearing with Department of Community Affairs v. Lee County, DOAH Case No. 89-1843GM, and Responsible Growth Management Coalition, Inc., and Committee of the Island v. Lee County and Department of Community Affairs, DOAH Case No. 90-7792GM. Pursuant to Section 163.3184(10), Florida Statutes, the recommended order in these cases was submitted to the Administration Commission on January 7, 1993. The exhibits and transcripts 24/ for DOAH Case Nos. 89-1843GM, 90-7791GM, and 90-7792GM shall be transmitted with this recommended order to the Department of Community Affairs.
FINDINGS OF FACT
Background
Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan). The Plan is compiled in the first volume of a three- volume set. The remaining volumes contain data and analysis (Original Data and Analysis).
The Department of Community Affairs (DCA) determined that the Plan was not in compliance with the Act. DCA filed a petition challenging the Plan under Section 163.3184(10), which commenced DOAH Case No. 89-1843GM.
Pursuant to a settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan amendments and revised the Original Data and Analysis. These amendments to the Plan shall be referred to as the Plan Amendments.
The Plan Amendments are contained in a three-volume set. The first volume contains Plan Amendments and data and analysis concerning traffic. The second volume contains Plan Amendments and data and analysis concerning the future land use map series, which includes two maps forming the 2010 overlay. The third volume contains Plan Amendments and data and analysis involving general matters.
The Plan, as amended by the Plan Amendments, shall be referred to as the Amended Plan. The additional data and analysis submitted by Lee County in September, 1990, shall be referred to as the Revised Data and Analysis. The Original Data and Analysis and Revised Data and Analysis shall collectively be referred to as the Data and Analysis.
On or about October 29, 1990, DCA published a notice of intent to find the Plan Amendments in compliance. Petitioner Brenda Sheridan, who is a resident of Lee County, had previously submitted oral or written objections during the review and adoption proceedings concerning the Plan Amendments. On or about November 17, 1990, Petitioner commenced the above-styled case by filing
with DCA a petition alleging that the Plan Amendments and Revised Data and Analysis are not in compliance with the Act and Chapter 9J-5, Florida Administrative Code (collectively referred to as the growth management law).
Wildlife Habitats and Vegetative Communities (Issues 2 and 6)
As to Issue 2, the Revised Data and Analysis contain limited data or analysis pertaining to wildlife habitat and vegetative communities. Much of the data and analysis concerning wildlife habitats and vegetative communities are in the Original Data and Analysis and were unchanged by the Revised Data and Analysis.
The Revised Data and Analysis inventory only certain habitats or vegetative communities and analyze the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon only certain unique wildlife habitats. The habitats or communities so considered are only those used by wood storks, Florida panthers, and black bears.
The Revised Data and Analysis state:
The only documented wood stork rookery in Lee County is on Telegraph Creek. In the past 3 years, no nesting has occurred there. It is possible that they exist in the Flint Pen Strand, adjacent to the Corkscrew Swamp Sanctuary. Corkscrew includes a well-known wood stork rookery. Wood stork productivity is highly variable as a result of annual rainfall amounts which accumulate in South Florida. Flight paths . . . associated with that rookery cross into feeding locations within Lee County. These movements are primarily dependent on food availability.
Tall structures placed in this flight path could affect the wood storks. The first monitoring report concerning the impact of WEVU's new broadcast tower on wood storks has been submitted. Every day during breeding season a biological intern has inspected the 60-acre tower site for injured wood storks.
No injuries or fatalities were found.
Feeding areas of the Corkscrew Swamp colony have been documented in Lee, Collier, and Hendry Counties. Southeastern Lee County provides important forage areas for this colony; occasionally saltwater habitats are also used. These food sources are essential to the success of wood stork reproduction within the colony. Figure IX.C-1 indicates the foraging sites used by wood storks from the Corkscrew Swamp Colony.
Lee County wetlands provide significant feeding areas for wood storks. As water levels drop in the winter, fish are trapped
in depressions associated with the wetland. These fish become an easy meal for the wood storks. The storks rely on this feeding source for successful breeding and survival. Strict enforcement of strong wetland regulations is the first step to protect this important feeding source.
The Lee County Protected Species Ordinance provides the next step in protecting wood stork forage areas. It requires surveys and management plans for the wood storks.
Nesting, roosting, and rooking areas are identified in the survey. Preservation of those areas can be accomplished through conservation easements granted to the county. All management plans must follow the Habitat Management Guidelines for the Wood Stork in the Southeast Region, a 1990 publication of the U.S. Fish and Wildlife Service. Of the
20 surveys submitted to date, only one indicated the presence of wood stork areas. Two wood storks were identified off of the property. The management plan associated with this property includes preservation of the wetlands associated with this documented forage site.
Joint Exhibit 10.c, page IX-3.
Figure IX.C-1 indicates the foraging sites used by wood storks of the Corkscrew Swamp colony from 1985 to 1988. The 30 indicated sites are (with one exception) concentrated in extreme southeast Lee County. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones.
Addressing Florida panthers, the Revised Data and Analysis report:
The greatest problems facing panthers are directly related to human intrusion. Habitat loss due to increased development erodes the range necessary for each cat's survival.
Florida panthers require extensive and biologically diverse landscapes. Male panthers utilize up to 400 square miles of territory. Biotic systems utilized by the Florida panther include "mixed swamp forests, cypress swamps, sawgrass marshes, mesic hammocks, pine flatwoods, and palmetto prairies." (Maehr, David S., "The Florida Panther and Private Lands.") Uplands are especially critical habitats for Florida panther. The tall palmetto systems which are particularly beneficial to the panther are also particularly prized for agriculture and development.
Because of the vast range necessary for the survival of the panther, protection of their habitat cannot be fully accomplished through site design regulations for private development. Large areas need to be
acquired, preserved, and managed for the long- term survival of this species. Suitable corridors must also be maintained, either through acquisition or regulations. . . .
In recent years, two cats have been documented in Lee County. One travels from Collier County, through the Flint Pen Strand, and north past the Southwest Florida Regional Airport to the Caloosahatchee River. This is a young panther. This movement is reflected in Figure IX.C-2 showing public lands within panther range. The second panther has been documented in Northern Lee County. Its range probably includes portions of Charlotte County.
Figure IX.C-3 showing Florida panther range is currently out of date given the known travels of the first panther. The enlargement of this map in Figure IX.C-4 illustrates the importance of the Flint Pen Strand acquisition in the preservation of well-documented panther habitat.
Joint Exhibit 10.c, pages IX-5 to IX-6.
Figures IX.C-3 and -4 disclose that about 50 square miles of south Lee County serves as known panther habitat, although actual habitat is even greater. The 50-square mile area contains much of the land in Lee County east of I-75 and the headwaters of the Estero River. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones except for all or parts of six one- mile sections, which are designated Suburban and General (Interchange Area).
The Revised Data and Analysis discuss the habitat of black bear:
Black bear range requirements are strikingly similar to that of the Florida panther. Like the Florida panther, the adult male will occupy home ranges that are greater than the female; in the case of the black bear, 3 to
8 times greater. The range of the black bear forage area extends anywhere from 40 to 312 square miles.
In Lee County, bears are known to exist in the northern and southeastern areas of the county. Bear dens are common in the eastern extent of the Flint Pen Strand acquisition.
Black bear are generally more common in the southeastern area of the county (see Figure IX.C-7).
Black bears have a diverse diet including acorns, various berries, and insects. Under some circumstances, they may also consume feral hogs and cattle. Consistent with their famous desire for honey, bears are notorious for invading apiaries. This activity causes an obvious conflict between bee-keepers and the bears, as many orange groves currently exist in the northern and eastern areas of the county. More groves are permitted in the area as well.
Bears studied in the Ocala National Forest predominantly utilized pine flatwoods for bedding and forage. "Pine flatwoods provide good cover for winter bedding as well as a nearly year-round source of food and water. This habitat type supports a variety of food- producing plans including gallberry, blueberry, and saw palmetto." (Wooding, John
B. and Hardisky, Thomas S., Final Performance Report: Black Bear Study, page 18.) Bears studied in [the] Osceola National Forest utilized cypress/bay swamps greatest in the fall and winter. The dense cover and fall food supply are explanations for this use. Black bears are prone to utilize areas which include oak in the autumn to take advantage of acorn production. Oak hammocks provide black bears with dense cover and food during these periods.
It appears that black bear hibernate to some degree in south Florida. This period of hibernation is of a shorter duration (2 to 3 months) and the bears are more alert during hibernation than they are in more northern areas. However, building energy stores for the hibernation is still important to the black bear in south Florida.
Florida black bear dens are simply beds made of vegetation such as palmetto fronds. They are known to den in a variety of habitats.
However, pine flatwoods and cypress swamps would appear to be the most utilized for this area. "It is speculated that Florida black bears have adequate food supplies to reproduce by the age of 3-4 years." (Wooding and Hardisky, page 23.)
Black bear road kills have been reported along I-75. These bears were crossing in the vicinity of San Carlos Park. Bears have been sighted in that community and occasionally elsewhere west of I-75. However, I-75 is
more typically a barrier to black bear migration to the western half of the county.
Preservation of large tracts of unfragmented forests is necessary for the continued survival of black bear in Lee County. Public acquisition of connected forested tracts is an effective way of ensuring habitat preservation for black bear. The Flint Pen Strand acquisition includes the area of most extensive bear denning and bedding in Lee County. Since this area is connected by the Bird Rookery Swamp acquisition to the Corkscrew Swamp Sanctuary, connectivity of preserved land is accomplished. The largest area of land currently under public control in southeastern Lee County is owned by the city of Fort Myers. Their southeast wellfield site encompasses 6 sections and is compatible with the management of black bear. This area is just 2 miles from the Flint Pen Strand acquisition. A link between the two would provide the needed connectivity and should become a priority.
Enhancement of large preserved tracts may yield a higher density of bears. This enhancement includes the planting of forage plants and the maintenance of dense vegetation. A burning program that favors the production of soft mast-forming species should be evaluated with consideration of promoting Melaleuca [sic].
Joint Exhibit 10.c, pages IX-6 and -13.
Figure IX.C-7 shows that most of the bear use areas correspond to the depicted location of the Florida panther habitat.
As to Issue 2, to the extent that the Revised Data and Analysis address vegetative communities and wildlife habitats, Petitioner has failed to prove to the exclusion of fair debate that the Revised Data and Analysis are inconsistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon unique wildlife habitat.
As to Issue 6, the Plan Amendments address to a limited extent regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat. The Plan Amendments address the wood stork and its habitat as follows:
Objective 77.10: WOOD STORK. By July, 1991, regulatory measures to protect the wood stork's feeding and roosting areas and habitat shall be adopted and enforced by Lee County.
Policy 77.10.1: By December 31, 1990, the Protected Species Ordinance (#89-34) and its administrative code (AC-13-10) shall include wood storks as a Lee County Listed Species, requiring surveys for and protection of wood stork habitat. The county shall maintain an inventory of documented feeding, roosting, and rooking areas for the wood stork to ensure that surveys submitted through the Protected Species Ordinance include such areas.
Policy 77.10.2: By December 31, 1990, the county shall require management plans for existing wood stork feeding, roosting, and rooking areas to utilize "Habitat Management Guidelines for the Wood Stork in the Southeast Region" (U.S. Fish and Wildlife Service, 1990).
Policy 77.10.3: By July 1991, the county shall provide incentives for the creation of wood stork feeding areas in mandatory littoral shelf design, construction, and planting. These incentives shall include relief from 50% of the shrub requirements in exchange for fish entrapment areas.
Policy 77.10.4: By July 1991, the county shall identify wood stork flight patterns from roosting and rooking areas to feeding areas within the county. Regulations protecting significant flight areas shall be adopted by July 1992, restricting the construction of tall structures such as broadcast towers (see Policy 2.1.5).
Policy 2.1.5 provides: 25/
* [[After the completion and acceptance of a special study]] <<By July 1991, the county shall complete a special study on locational
criteria for tall structures such as broadcast towers. These criteria shall include wood stork flight corridors from roosting and rooking areas to feeding areas as well as airport hazard areas. By July 1992, new>> tall structures such as broadcast
towers shall be [[encouraged or]] required to be located in areas identified as appropriate
<<after examining the findings of the study (see Policy 77.10.4).>>
* Note: In the above quotation, language added to the policy
is within the <<>>; deleted language is within the [[]].
Policy 77.10.1 requires Lee County to keep an inventory of wood stork feeding, roosting, and rooking areas to ensure that developer-provided surveys include such areas. The Revised Data and Analysis indicate that the County is already aware of certain of such areas.
Policy 77.10.2 requires, by December 31, 1990, Lee County to demand that management plans for existing wood stork feeding, roosting, and rooking areas use regionally applicable U.S. Fish and Wildlife Service guidelines for habitat management. The requirement of management plans arises from the inclusion of wood storks among Lee County Listed Species, as provided in Policy
77.10.1. Policies 77.10.3 and 77.10.4 provide additional protection for wood storks found in Lee County.
The Plan Amendments address the Florida panther, black bear, and their habitat as follows:
Objective 77.11: FLORIDA PANTHER AND BLACK
BEAR. By June 30, 1991, county staff shall develop measures to protect the Florida panther and black bear through greenbelt and acquisition strategies.
Policy 77.11.1: County staff, working with the Florida Game and Fresh Water Fish Commission, shall identify known black bear and Florida panther corridors in Lee County.
Policy 77.11.2: Criteria developed for ranking land acquisition priorities shall include known panther and black bear corridors.
Policy 77.11.3: Lee County shall inform Collier and Charlotte counties as to Lee County corridor acquisition projects to encourage a regional approach to corridor acquisition.
Policy 77.11.4: Lee County shall support the acquisition of the Flint Pen Strand through a millage increase of .2 mills over a three-year period. Acquisition of this documented Florida panther and black bear corridor shall be coordinated with the South Florida Water Management District's "Save Our Rivers" program and the state's "Conservation and Recreational Lands" program.
Policy 77.11.5: Important black bear and Florida panther use areas shall be identified. Corridors for regulatory and public acquisition purposes shall be designated within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks).
Policy 77.11.6: Florida panther and black bear corridors shall be included in the Protected Species Ordinance (#89-34) management section. Where corridors are purchased (or designated for purchase) adjacent to the development site, then a buffer to the corridor of no greater than 500 feet shall be required.
Policy 77.11.7: In any vegetative restoration projects conducted by Lee County for land acquired due to its environmental sensitivity (such as the Six Mile Cypress Strand and the Flint Pen Strand), plant lists shall include species that provide forage for the prey of the Florida panther and forage for the black bear.
The Plan Amendments also modified another policy contained in the Plan:
Policy 77.4.1: Identify, inventory, and protect flora and fauna indicated as endangered, threatened, or species of special concern in the "Official Lists of Endangered and Potentially Endangered Fauna and Flora of Florida," Florida Game and Fresh Water Fish Commission, as periodically updated. <<Lee County's Protected Species Ordinance (#89-
34) shall be enforced to protect habitat of those listed species found in Lee County that are vulnerable to development. There shall be a funding commitment of one full-time environmental planner to enforce this ordinance through the zoning and development review process.>>
Although not further described in the Amended Plan, the Protected Species Ordinance, which is not part of the Amended Plan, is addressed in the Revised Data and Analysis:
The Protected Species ordinance (#89-34) was adopted by the Lee County Board of County Commissioners on August 31, 1989, and became effective on September 1, 1989.
The ordinance was the first in the nation to require a survey for listed species habitat and a management plan for proposed development sites. The survey method is delineated to ensure a proper survey is performed. This survey is only required for those vegetative communities known to harbor listed species from the "Official Lists of Endangered and Potentially Endangered Flora and Fauna of Florida" of the Florida Game and Fresh Water Fish Commission.
Once the listed species are identified, a number of regulatory tools are used to preserve the nesting, feeding, and "other use" areas. These tools include the transfer of density on-site, use of open space requirements, and credits toward regional park impact fees.
* * *
The ordinance is being administered to allow maximum development flexibility while preserving listed species habitat.
Joint Exhibit 10.c, page IX-1.
Added by the Plan Amendments, Objective 17.4 states: NATURAL RESOURCES. County regulations,
policies, and discretionary actions shall
permit no further degradation of estuarine and wetland resources and no unnecessary loss of native upland vegetation and wildlife habitat.
Although unaffected by the Plan Amendments, other provisions of the Amended Plan address wildlife habitat and identifies techniques for limiting the impacts of development and redevelopment upon important vegetative communities. These provisions state:
Goal 77: RESOURCE PROTECTION. To manage the county's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal species diversity, water quality, and natural surface water characteristics.
Objective 77.l: RESOURCE MANAGEMENT PLAN.
By 1991 the county shall adopt a resource management plan that will ensure the long- term protection and enhancement of the natural upland and wetland habitats through the retention of interconnected, functioning, and maintainable hydroecological systems where the remaining wetlands and uplands function as a productive unit resembling the original landscape.
Policy 77.l.l: The county shall designate a natural resource management agency with responsibilities including:
Identifying upland and wetland habitats/systems most suitable for protection, enhancement, reclamation, and conservation.
Recommending standards to the Board of County Commissioners for Board approval for development and conservation that will protect and integrate wetlands (Resource Protection Areas and Transition Zones), and significant areas of Rare and Unique upland habitats (RU) as indicated in the Lee County Coastal Study, including but not limited to: sand scrub (320); coastal scrub (322); those pine flatwoods (411) which can be categorized as "mature" due to the absence of severe impacts caused by logging, drainage, and exotic infestation; slash pine/midstory oak (412); tropical hardwood (426); live oak hammock (427);
and cabbage palm hammock (428). The numbered references are to the Florida Land Use Cover and Forms Classification System (FLUCFCS) Level III (FDOT, 1985).
Preparing standards for wetland and rare and unique upland mitigation.
Preparing a prioritized listing of wetlands, rare and unique uplands, and critical endangered and threatened species habitat properties for possible acquisition.
Recommending a plan for eradicating and controlling problematic exotics Melaleuca, Schinus, and Casuarina with the highest priority placed on preventing new or accelerated infestations in wetlands and rare and unique upland habitats.
Maintaining a central clearinghouse for all environmental studies and recommendations by both public and private organizations.
Completing the mapping of the hydrological boundaries and habitats of each coastal watershed that extend landward of the coastal area study boundary.
Preparing recommendations for maintaining or restoring the desired seasonal base flows and water quality into the coastal zone after reviewing monitoring data.
Coordinating the preparation of plans with the municipalities, South Florida Water Management District, and Southwest Florida Water Management District to better
control flows of freshwater and reduce pollutant discharges into the Lee County coastal waters.
Regularly updating the Level III maps and database of the Coastal Study to reflect the existing conditions following each aerial photography overflight of the county.
Providing an annual report to the county commission on the status of wetlands, native uplands, and rare and unique habitats. The report should focus on the adequacy of the land use regulations and management plan to protect and enhance these natural systems. Adjustments should be made in the regulatory process to address whatever deficiencies are noted.
Objective 77.2: PLANT COMMUNITIES. By
1991, Lee County will have completed an inventory of natural plant communities and will adopt a program to protect at various suitable locations remnant tracts of all important and representative natural plant communities occurring within Lee County.
Policy 77.2.1: Establish a coordinated natural resources information exchange program with state and regional agencies.
Policy 77.2.2: Prevent incompatible development in and around areas that have been identified as unique or important natural plant communities.
Policy 77.2.3: Prevent water management and development projects from altering or disrupting the natural function of significant natural systems.
Policy 77.2.4: Encourage the protection of viable tracts of sensitive or high-quality natural plant communities within developments.
Policy 77.2.5: Prepare and adopt regulations to control the clearing of natural vegetation except where and when needed for permitted development.
Policy 77.2.6: Avoid needless destruction of upland vegetation communities including coastal and interior hammocks through consideration during the site plan review process of alternative layouts of permitted uses.
Policy 77.2.7: Specify in the development regulations where inventories and assessments of the impacts of development in environmentally sensitive lands and Rare and Unique upland habitats shall be required.
Policy 77.2.8: Promote the long-term maintenance of natural systems through such instruments as deed restrictions, covenants, easements, transfer of development rights, restrictive zoning, and public acquisition.
Policy 77.2.9: Identify possible programs which would help to eradicate noxious plant species and/or non-native plant species from environmentally critical areas and Rare and Unique upland habitats, and implement pilot programs. Incentives such as density bonuses may be considered.
Policy 77.2.10: Development adjacent to aquatic and other nature preserves, wildlife refuges, and recreation areas shall protect the natural character and public benefit of these areas including, but not limited to, scenic values for the benefit of future generations.
Policy 77.2.11: The planting of Brazilian Pepper, Melaleuca, and Australian Pine is prohibited in order to prevent the spread of these noxious species.
Policy 77.2.12: Lee County shall protect its natural resources by encouraging and cooperating with the local Mosquito Control District to employ the maximum feasible use of natural biological agents to control injurious insects.
Objective 77.3: WILDLIFE. Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system to which man is inexorably linked.
Policy 77.3.1: Encourage upland preservation in and around preserved wetlands to provide habitat diversity, enhance edge effect, and promote wildlife conservation.
Policy 77.3.2: Develop a plan to establish wildlife corridors in order to help to maintain regional species viability and diversity.
Policy 77.3.3: Adequate safe passage for wildlife under or across new and reconstructed roads shall be provided where appropriate.
Objective 77.4: ENDANGERED AND THREATENED
SPECIES IN GENERAL. Lee County will continue to protect habitats of endangered and threatened species and species of special concern in order to maintain or enhance existing population numbers and distributions of listed species.
* * * Policy 77.4.2: Conserve critical
habitat of rare and endangered plant and animal species through development review, regulation, incentives, and acquisition.
Policy 77.4.3: Require detailed inventories and assessments of the impacts of development where it threatens habitat of endangered and threatened species and species of special concern.
Policy 77.4.4: Restrict the use of critical habitats to that which is compatible with the requirements of endangered and threatened species and species of special concern. New developments shall protect remnants of viable habitats when listed vegetative and wildlife species inhabit a tract slated for development, except where equivalent mitigation is provided.
Objective 77.5: LOGGERHEAD SEA TURTLES. By
the beginning of the 1989 nesting season (May 1), establish a program to minimize the disorientation of hatchling sea turtles along the Gulf beaches.
Policy 77.5.1: The sea turtle protection program shall include at least the following activities:
Prepare a guide for homeowners and builders which explains the detrimental effects of night-time beachfront lighting on hatchling sea turtles.
Examine public light sources (streetlights, security lights, beach access lights, etc.) and prepare a plan to minimize the amount of harmful light from such sources onto the beach during the nesting season.
Conduct an educational program to persuade residents to reduce lighting levels on the beach and to publicize other hazards to turtles from activities of people, pets, and vehicles.
Encourage electrical suppliers and lighting dealers to stock special fixtures which reduce the negative effects of beachfront lighting.
Develop an ordinance which controls the installation of new light fixtures which could shine on the beach, and which encourages or requires that existing lights be shielded or turned off during the nesting season. Determine whether certain areas of the beachfront are not used by sea turtles for nesting and should therefore not be subject to the same restrictions.
Objective 77.6: SOUTHERN BALD EAGLES.
During 1989, amend the county's ordinance protecting southern bald eagle habitat to provide an optimum mix of incentives and regulations for protecting buffer areas around nests.
Policy 77.6.l: Maintain a policy of negotiations with owners of land surrounding eagle nests to provide an optimal management plan for land subject to imminent development.
Policy 77.6.2: The county Eagle Technical Advisory Committee shall complete by the end of 1989 an assessment of all eagle nests in Lee County, and shall prepare proposed guidelines for each nest.
Policy 77.6.3: The Committee shall also prepare management guidelines to inform land owners and the general public of proper practices to minimize disturbances to eagle nests.
Objective 77.7: WEST INDIAN MANATEES.
Minimize injuries and mortality of manatees to maintain the existing population by encouraging the adoption by the state of Florida and local governments of regulations to protect the West Indian Manatee in the Caloosahatchee and elsewhere in Lee County. During 1990, manatee management plans will be prepared for other waters of Lee County also frequented by manatees.
Policy 77.7.1: Characterize and map important manatee habitats; identify and evaluate potential threats to important habitats; and consider management agreements to protect such habitats.
Policy 77.7.2: Identify areas of greatest actual or potential boat/barge mortality and/or injury by December 31, 1990, and establish slow or idle speed zones.
Policy 77.7.3: Inform and educate the public through sign posting, lectures, and regulations about manatee protection.
Policy 77.7.4: Educational materials regarding manatees should be disseminated to boaters and warning signs placed in areas where both manatees and humans congregate.
Policy 77.7.5: Construction and expansion of multi-slip docking facilities and boat ramps shall be encouraged in locations where there is quick access to deep, open waters where the associated increase in boat traffic will be outside areas of high manatee concentration.
Policy 77.7.6: Rezoning and DRI applications for marinas and boat ramps shall be evaluated in the context of cumulative impacts on manatees and marine resources.
Policy 77.7.7: State, local, and private interests shall work in cooperation to develop and implement area-specific manatee protection plans.
Policy 77.7.8: By October 1, 1991, the county shall provide a permanent funding source to assist the Florida Department of Natural Resources in enforcement of such manatee protection plans as may be adopted.
Objective 77.8: GOPHER TORTOISES. During 1989, determine the suitability of publicly owned property for the relocation of gopher tortoises.
Policy 77.8.1: The county's policy is to protect gopher tortoise burrows wherever they are found. However, recognizing that there occasionally are unavoidable conflicts which require the relocation of gopher tortoises, the suitability of alternate sites should be evaluated as to
--physical suitability of the site for the gopher tortoises;
--long-term protection of the land;
--conflicts with other management objectives for the land; and
--costs that would be incurred by the relocation.
Objective 77.9: RED-COCKADED WOODPECKER.
By 1990, county staff will prepare a list of best management practices for the red- cockaded woodpecker's habitat.
Policy 77.9.1: County staff will note and document other possible red-cockaded woodpecker sites during routine site inspections.
As to Issue 6, to the extent that the Plan Amendments address the identification of regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the criterion of a policy identifying such regulatory or management techniques.
Future Land Use Map Series (Issues 3, 4, 5, 7, and 11)
Issues 5, 7, and 11
As to Issue 11, the future land use map series, which includes the 2010 overlay, reflects a planning timeframe of 20 years. The schedule of capital improvements covers a five-year timeframe. Petitioner argues in her proposed recommended order that the Amended Plan uses inconsistent timeframes, such as those mentioned above, as well as timeframes of five years for potable water and sewer, less than 10 years of need for potable water wellfield protection, and one year for mass transit. Different timeframes may be appropriate for different projected items because of the varying amounts of available data and analysis for different items, varying planning requirements in the growth management law concerning different items, and varying degrees of predictability for different items. As to Issue 11, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the criterion of two planning timeframes.
As to Issue 5, nothing in the Plan Amendments or Revised Data and Analysis identifies potable water wellfields or their cones of influence. Map 8 of the Amended Plan identifies the cones of influence surrounding depicted wellfields and indicates that it was "as adopted [on] January 31, 1989." Map 8 obviously was part of the Plan and was unchanged by the Plan Amendments.
The extensive amendments and revisions concerning the new 2010 overlay, the Density Reduction/Groundwater Resource designation, related Plan Amendments, and the data and analysis underlying these operative provisions do not provide a basis for Petitioner's assertion that the future land use map series fails to identify potable water wellfields permitted to pump less than one million gallons per day and their cones of influence. Issue 5 is directed toward the Plan, not the Plan Amendments.
As to Issue 7, nothing in the Plan Amendments or Revised Data and Analysis involves densities in the coastal high hazard area, except to the extent that the 2010 overlay may reduce such densities by limiting residential uses when compared to the original 70-year future land use map. 26/ Issue 7 is directed toward the Plan, not the Plan Amendments.
Issues 3 and 4
Overview
As to Issues 3 and 4, the Plan Amendments substantially changed the future land use map series by the addition of the 2010 overlay and related text. However, except for the introduction of the new Density Reduction/Groundwater Resource designation, the Plan Amendments, including the 2010 overlay, did not substantially alter the types of land uses permitted by the future land use map series in the Plan. The 2010 overlay and related text address the timing of land uses by limiting the amount of land that may, prior to 2010, be devoted to the uses designated by the future land use map in the Plan.
Issues 3 and 4 generally raise the issue whether the Plan Amendments, including the amended future land use map series, are supported by data and analysis.
Because the Plan Amendments and the amended future land use map series do not generally change the uses that are ultimately to be allowed in an area, the Plan Amendments and amended future land use map series are not implicated by allegations that the amended future land use maps are not consistent with soils, topography, and floodplains. For the same reason, the Plan Amendments and amended future land use map series do not play a significant role in determining whether land use designations for specific areas, such as North Bonita Springs, are supported by data and analysis.
However, as explained below, the Plan Amendments, including the amended future land use map series, directly affect the amount of land that will be available for designated uses by 2010. Based on the findings contained in the following sections, the designations contained in the amended future land use map series--even as limited by the 2010 overlay--lack support from data and analysis in two crucial respects.
The first deficiency is that the density allocations are not supported by data and analysis. The second deficiency involves all designations, not just residential designations expressed in terms of densities. The second deficiency contains two parts. First, the existing land use baseline data are omitted from the Amended Plan and Data and Analysis. Second, the County has yet to design a reliable process for updating the available baseline existing land use data.
The determination whether the density allocations in the amended future land use map series are supported by data and analysis begins with consideration of the ratio of the maximum population accommodated by the Amended Plan for the planning timeframe divided by the projected population at the end of the planning timeframe. The resulting ratio is not itself determinative of the issue whether data and analysis support the density designations in a comprehensive plan. A wide range of density allocation ratios may be calculated for the same plan. There are a variety of reasonable assumptions and adjustments, especially for reducing the maximum population accommodated by the plan. Also there are a range of reasonable density allocation ratios.
A density allocation ratio represents a rough calculation of the relationship between the amount of land needed for residential uses during the planning timeframe compared to the amount of land so designated during the planning timeframe. If the ratio is relatively high, there is a greater chance
that the plan may not facilitate the efficient use of land or the efficient provision of public facilities, especially if the spatial distribution of densities and textual plan provisions do not tend to achieve these objectives.
In any event, a density allocation ratio is an important factor in determining whether data and analysis support the density designations contained in a comprehensive plan. As explained below, the Data and Analysis contain a critical adjustment by which the maximum densities permitted in the Amended Plan are reduced to reflect historic densities--by an unstated amount and according to an incompletely described methodology.
The second deficiency concerning supporting data and analysis undermines residential, commercial, industrial, and other designations. The baseline existing land use data are omitted from the Amended Plan and Data and Analysis, and the process by which existing land uses will be updated is uncertain and unreliable. The 2010 overlay is meaningless without these data.
As described below, the 2010 overlay divides the County into numerous subdistricts. The 2010 overlay limits development in each subdistrict to a maximum acreage for each land use category. The acreage limitations represent total acreage, which consists of the acreage of existing land uses that preexisted the implementation of the 2010 overlay and the acreage of land use authorized pursuant to, and following, the implementation of the 2010 overlay.
The baseline data missing from the Amended Plan and Data and Analysis are the acres of each existing land use for each subdistrict. The absence of such data from a readily available source such as the Amended Plan or Data and Analysis undermines effective implementation of each of the designations contained in the 2010 overlay. Although the evidence indicates that the County has adequate baseline existing land use data, such data, for the reasons set forth in the Conclusions of Law, must be included in the Amended Plan or the Data and Analysis because of its indispensable role in the implementation of the 2010 overlay.
Neither the Amended Plan nor the Data and Analysis identify the process by which Lee County will update the baseline existing land use data. Evidence at the final hearing revealed serious deficiencies in the updating process, which requires the County to extrapolate from traffic data and analysis the ongoing incremental acreage increases of land use, rather than track the increases as they are authorized in a more straightforward fashion.
Thus, concerning the second deficiency, the designations contained in the 2010 overlay are supported by data and analysis only to the extent of: 1) a clearly ascertained baseline, in terms of acres of existing land uses by category for each planning subdistrict, set forth in the Amended Plan or the Data and Analysis and 2) the identification of a reliable means of determining the incremental acreage increases authorized by the County for each land use category for each planning district following the implementation of the 2010 overlay.
2. How the Amended Future Land Use Map Series Works
The primary component of the future land use map series Map 1, which is a future land use map containing 18 future land use designations. Map 1 projects land uses through buildout of the entire County, or about 70 years. Map 1 was contained in the Plan and was not changed by the Plan Amendments, except for the addition of the 2010 overlay and the Density Reduction/Groundwater Resource designation.
The Plan Amendments added Maps 16 and 17 to the future land use map series. Maps 16 and 17 constitute the 2010 overlay. Map 16 divides the entire County, including the three municipalities, into 115 planning subdistricts. Map
17 is not a map, but is a series of bar graphs depicting acreages for seven land use categories: residential, commercial, industrial, parks and public, active agriculture, conservation, and vacant and passive agriculture.
The regulatory concept of the 2010 overlay is to prohibit, prior to 2010, the issuance of "final development orders or building permits" for any future land use designation once the subdistrict has attained the acreage specified for that type of land use by Map 17. Joint Exhibit 10.b, page 3. This concept is implemented by Policy 1.1.1, which provides:
The Future Land Use Map contained in this element is hereby adopted as the pattern for future development and substantial redevelopment within the unincorporated
portion of Lee County. <<Maps 16 and 17 are an integral part of the Future Land Use Map
series (see Policies 1.7.6 and 2.2.2). They depict the extent of development through the year 2010. No final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on these maps to be exceeded.>> The cities of Fort Myers, Cape
Coral, and Sanibel are depicted on [[this]] <<these>> maps only to indicate the approximate
intensities of development permitted under the comprehensive plans of those cities.
Residential densities are described in the following policies and summarized in Table l.
The Revised Data and Analysis explain that the purpose of the 2010 overlay is to make the 70-year future land use map in the Plan "even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon." Joint Exhibit 10.b, page 1. The Revised Data and Analysis elaborate:
The addition of a 20-year horizon (i.e., to the year 2010) to the map series is an effort to project and monitor land development quantitatively on a small area basis and over a relatively shorter period of time, thus improving the county's ability to coordinate zoning, impact fees, and other development regulations with the planning and programming of public facilities and services.
Joint Exhibit 10.b, page 2.
Assumptions, Data, and Methodologies Applicable to 2010 Overlay
Density Allocations: Assumptions and Data
Map 1 and the 2010 overlay are based on the 1987 University of Florida high-range population projections for 2010. Joint Exhibit 10.b, page 4. Residential projections are based on peak or seasonal populations, which are permanent populations plus 18%. Joint Exhibit 10.b, page 4, and County Exhibit 1.B, page V-7. Populations are converted to dwelling units by assuming that
2.01 persons occupy each dwelling unit. Id. The population figures typically include Ft. Myers, Cape Coral, and Sanibel, not merely unincorporated Lee County. 27/
Other important assumptions identified in the Revised Data and Analysis are that there will be no net loss of wetlands, the density allocations will reflect the new Groundwater Resource/Density Reduction designation with a density of one dwelling unit per 10 acres (1:10), the Mid-Point Bridge will be built by 2000, all but one of the transportation projects shown on the Interim Traffic Circulation Plan Map will be finished by 2010, and the "state road network" will be enhanced by the Traffic District Program and Interim/Operational Improvement Program for backlogged roads and Operational Improvement Program for constrained roads. 28/ Joint Exhibit 10.b, pages 4-5.
Another key assumption involves adjustments to the designated densities authorized in the comprehensive plans of Ft. Myers, Cape Coral, and Sanibel. Acknowledging that Lee County lacks planning jurisdiction over these municipalities, the Revised Data and Analysis nonetheless reveal that Lee County made "some adjustments" to their growth trends. In other words, in determining the densities to use for the 2010 population that could be accommodated by the cities' plans, Lee County chose not to rely on the maximum densities indicated by the future land use designations given vacant residential acreage on each city's future land use map. Instead, as it did for the unincorporated County, Lee County reduced the maximum densities in the cities' plans to account for historic buildout densities. Joint Exhibit 10.b, page 3.
Density Allocations: Methodology
Noting that the 2010 overlay is not a "textbook planning concept," the Revised Data and Analysis acknowledge that the 2010 overlay required an "innovative methodology," which, due to time constraints, could not be fully documented in the Revised Data and Analysis. Joint Exhibit 10.b, page 3. Instead, the Revised Data and Analysis provide only a "brief explanation" of the methodology. Id.
Section III of the Revised Data and Analysis for the Future Land Use Element 29/ describes the methodology underlying the County's estimate of the builtout capacity of the land. In this analysis, the County reduces maximum densities permitted under the Amended Plan to reflect anticipated actual densities. This adjustment is intended to reflect the historic buildout factor in Lee County, which generally resulted in involved lower densities in urban areas and higher densities in rural areas than are designated in the Amended Plan.
The Revised Data and Analysis explain that the Original Data and Analysis used 1981 data and analysis of then-existing vacant land, including platted but vacant lots. The vacant acreage was then tabulated by land uses identified within the Plan. The Revised Data and Analysis add:
By adding the 1981 dwelling unit count to a reasonable projection of future housing densities on the "vacant" acreage, an estimate was made of the build-out capacity of the unincorporated area as shown in the Lee Plan's land use map.
The process by which vacant acreage was converted to dwelling units is partly described, at least to the extent of several assumptions. The following percentages were deducted from the vacant acreage for the following uses: commercial--8%; major collector and arterial roads--5%; educational facilities-
-2%; and community and regional parks--1%. Another 10,000 acres were deducted from the vacant acreage for industrial uses. The percentage reductions for commercial and industrial future land uses were based on studies by the independent planning consultant who was involved in the preparation of Map 1 and the 2010 overlay. Joint Exhibit 10.b, page 6. The deductions for commercial and industrial acreage allotments, as described in this paragraph, are reasonable and supported by data and analysis. 30/
The Revised Data and Analysis, as well as the Original Data and Analysis, mention adjustments that Lee County made to its analysis of the capacity of residential development authorized by the Amended Plan. By these adjustments, the County attempted to show where commercial and industrial uses would preempt residential uses. Although the methodology of the adjustments is not disclosed, they appear to represent a reasonable attempt to avoid the unrealistic land use planning assumption that commercial and industrial uses would be scattered equally throughout the parts of the County where they are authorized under the Amended Plan.
The Revised Data and Analysis next break down the acreage of each future land use designation into 15 planning districts and 115 planning subdistricts. Table 1 (III C) beginning on page 8 of Joint Exhibit 10.b provides acreages for each of the 15 planning districts on three tables: one for Lee County in its entirety, one for unincorporated Lee County, and one for the three municipalities. Table 2 (III C) breaks down the acreages by planning subdistrict.
The acreages in Tables 1 (III C) and 2 (III C) do not correspond to the acreages shown in Map 17 and Table 3 (V G). 31/ The differences are not indicative of deficient data and analysis. Tables 1 (III C) and 2 (III C) represent interim stages of the process by which Lee County developed the 2010 overlay and, as such, do not provide acreages on which density allocations may be calculated. However, Tables 1 (III C) and 2 (III C) do not suggest that the final acreage figures in Map 17 and Table 3 (V G) represent the maximum densities or population allowed in the Amended Plan without reduction for historic densities.
To the contrary, the Revised Data and Analysis indicate that the preparation of Table 2 (III C) allowed "the input of expected densities." Joint Exhibit 10.b, page 7. Unlike Table 3 (V G) or Table 1 (III C), Table 2 (III C) contains a column entitled, "Buildout Assumptions." One part of the Buildout Assumptions column is "percent residential." The adjustment for percent
residential appears to be based on the above-described deductions for commercial and industrial allotments. In any event, the adjustment represents a reasonable projection as to what portions of land designated residential will necessarily be devoted to other uses, such as commercial and industrial.
The other part of the Buildout Assumptions column in Table 2 (III C) is "dwelling units per acre," which appears to represent adjusted projections based on historic buildouts. The maximum densities for each category allowed by the Amended Plan are invariably equal to or (more often) higher than the dwelling units per acre contained in the Buildout Assumptions. 32/
The Revised Data and Analysis revise Section V(G) of the Original Data and Analysis. This section is entitled "Future Land Use Needs for the Year 2010." The new section addresses exclusively residential development. Table 2 (V G) in the new section lists by planning subdistricts the number of dwelling units in 1987, the number of dwelling units projected for 2010, and the number of dwelling units projected at buildout.
In introducing Table 3 (V G), the Revised Data and Analysis note that the projected number of dwelling units for 2010 (presumably from Table 2 (V G)) was translated to acreage by "taking the number of acres in each land use category in each district and allocating the residential units projected for 2010 at the density factor (number of units per acre) allowed in the land use category." Joint Exhibit 10.b, page 37. However, the acreage allotments in Table 3 (V G), which are the same as those in Map 17, reflect historic density adjustments, rather than unadjusted applications of the maximum densities authorized in the Amended Plan.
For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for failing to disclose information necessary to calculate the maximum population that can be accommodated by the Amended Plan. 33/ For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for reducing the maximum population that can be accommodated by the Amended Plan by an undisclosed amount to reflect historic buildout densities.
The purpose of Map 1 was to depict the land uses in Lee County at buildout, which was estimated to be about 70 years. This 70-year future land use map was to facilitate end-state public facility planning by assisting the County and private utility companies in determining where to locate and how to size public facilities so as to accommodate the builtout population of Lee County. Projecting actual buildouts for end-state public facility planning requires an adjustment based on historic densities.
But the present determination is whether the densities authorized by the Amended Plan are supported by data and analysis. This determination requires consideration of the effectiveness of the future land use map series as a regulatory device to assist the Amended Plan in achieving consistency with applicable criteria of the growth management law.
To a large extent, any regulatory purpose for Map 1 was frustrated by the fact that, in 1989, it made available for immediate development (subject to concurrency) all of the land that would be needed for various uses by 2060. The 70-year planning timeframe meant that Map 1 designated amounts of land for various uses that were grossly in excess of that which was needed in 1989 or even 2010. To this extent, the 70-year future land use map did not facilitate effective land use planning.
The sole purpose of the 2010 overlay is to shorten the planning timeframe of Map 1 from 70 year to 20 years. The shorter planning timeframe is more meaningful for land use planning, as well as facility planning in the interim. Although the 2010 overlay clearly strengthens the future land use map series as a regulatory device, the question still remains whether even the reduced densities designated by the map series are supported by data and analysis.
The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities somewhere between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures.
Although there is some flexibility in calculating and interpreting density allocation ratios, the reduction of maximum densities allowed in the Amended Plan by an undisclosed amount and by an incompletely explained methodology frustrates the purpose of comprehensive land use planning. The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population and consider the extent of the overallocation in light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis.
By failing to disclose either the maximum population that can be accommodated by the Amended Plan or even the bases upon which such maximum densities could be derived, Lee County has implicitly and--at times--explicitly demanded undue deference to its above-described density analyses. Nothing in the record warrants such deference.
Although Lee County has made considerable progress in regulating land uses since first adopting zoning in 1962, sprawling, low-density residential monoliths already occupy much of the landscape in Lee County. Two such areas are Lehigh Acres and Cape Coral, the latter of which has now been incorporated. These inefficient land use patterns, which are a large part of Lee County's historic densities, generally exceed rural densities but do not attain urban densities.
Lee County confronts a serious challenge from the massive tracts of prematurely (and in some cases unsuitably) platted lots, as well as the ongoing pressure to continue such inefficient and costly land use practices. The Original Data and Analysis note that "vacant zoning together with platted lands could accommodate over 218,700 units or 518,000 people in the unincorporated area alone" and that the "pace of rezoning, often with speculative intent, has not lessened appreciably since that time." County Exhibit 1.B, Future Land Use Element Data and Analysis, page V-1.
The Original Data and Analysis observe that Lee County in its entirety contains 480,458 platted lots covering over 153 square miles. Although it is not entirely clear that all of these lots are vacant or preplatted, a considerable number of them are. Most of the lots are in Lehigh Acres (132,512 lots) and Cape Coral (287,869, but deed restrictions require two lots for one homesite.) Only 3768 lots are considered nondevelopable. County Exhibit 1.B, Future Land Use Element Data and Analysis, page I-1.
The Revised Data and Analysis argue that Lee County should be accorded greater planning flexibility than should other local governments in Florida due in part to its "large concentrations of pre-platted lands." The other reasons cited to justify special treatment are the presence of three independent municipalities, a multiplicity of private sewer and water systems lacking centralized control, a complicated land and water configuration, a strong wetlands protection program, a large regional airport, existing and future DRI's, and an "historical pattern of decision-making that has created land use expectations which, in the aggregate, are difficult to reverse and require care and sensitivity in so doing." Joint Exhibit 10.b, page 2.
With the exception of the strong wetlands protection program, if one were to exist, the cited factors at best cut both ways in terms of whether, under the growth management law, a local government facing such challenges requires greater planning flexibility. The pre-platted lands factor militates against greater planning flexibility, as these vacant lots represent a potential liability that threaten the viability of a local government's comprehensive plan.
Following the discussion of Tables 1 (III C) and 2 (III C), the Revised Data and Analysis admit:
The above analysis helps to explain the inability of Lee County and private sector utility companies to provide infrastructure to all of the future urban areas shown on the future land use map. Those services that involve major expenditures for site-specific capital improvements (such as sewer lines, water lines, and major roadways) are the major components of local governments' expenses in providing for new growth; yet they are the very services which are difficult to provide economically when a
large supply of land is provided for development.
Joint Exhibit 10.b, page 7.
The Revised Data and Analysis identify several factors that militate in favor of abandoning the stricter regulatory land-use controls introduced by the 1984 comprehensive plan. 34/ These factors are the presence of numerous private utility suppliers over which Lee County has no regulatory control; the "existing pattern of development within unincorporated Lee County [involving] numerous physically scattered communities of widely varying character," which renders attempts to apply a "single concept" of urban services across a wide spectrum of communities "inappropriate" and "financially infeasible" both as to existing and future development; the unsuccessful implementation of flexible planning strategies in the 1984 plan, such as planned unit developments in which developers and landowners provide a full range of urban infrastructure without expense to Lee County; and, "[p]erhaps the most difficult issue. . . in implementing the 1984 Lee Plan," the "lack of total commitment to the policy of allowing urban-scale development [over 1:1] only where a commitment was actually being made to provide an urban level of infrastructure." Elaborating on the last factor, the Revised Data and Analysis add: "The future land use map has often been seen as just another obstacle rather than as a vehicle towards the creation of desirable development patterns." Joint Exhibit 10.b, pages 30-31. Again, the cited factors do not militate in favor of more relaxed regulatory land-use practices to achieve consistency with the criteria of the growth management law.
Addressing the 2010 overlay and the projected population that it is intended to accommodate, the Revised Data and Analysis contend:
[DCA] has tried to rigorously defend the concept of enforcing a future land use map having an approximate capacity equal to the projected growth of the county over a given (typically, 20-year) period. This is not possible in Lee County where existing platted and sold lots greatly exceed the 20-year period. In addition, it is also important to know where and how growth will occur well beyond the conventional timeframe of a comprehensive plan.
Joint Exhibit 10.b, page 31.
However, the Revised Data and Analysis acknowledge the drawbacks of reliance upon a future land use map with a 70-year planning timeframe. The cited disadvantages include the increased likelihood of changes in designations over the intervening 70 years (as compared to shorter periods like 20 years); the premature conversion of agricultural and vacant land to residential uses due to designations that, in 1990, presently permit land uses that will accommodate all projected urbanization through the year 2060; and the possibility that actual population growth will not attain projected population growth, which would result in an even more scattered development pattern that would further increase the cost of servicing the scattered population with required public facilities and services.
The Revised Data and Analysis frankly concede that "there is no easy way to exit from the present dilemma." Joint Exhibit 10.b, page 32. A "wholesale rollback" of existing future urban areas, though simple, "would inevitably diminish development rights previously granted by Lee County." The
prime examples of previously granted development rights are the "hundreds of thousands of [already-sold] platted lots" and "numerous large-scale developments which have recently been approved based on the existing Lee Plan . . .." Id.
Acknowledging the obvious, the Revised Data and Analysis admit that the preceding analysis "indicates clearly that the development potential shown on the Future Land Use Map is greater than the projected population for the year 2010." Id.
The Revised Data and Analysis list five steps that Lee County has taken to "bridge the gap between the adopted [70- year] future land use map and the desirability of a 20-year map." Joint Exhibit 10.b, page 32. These steps are reserving about one-third of the Future Urban Areas for privately funded infrastructure; substantially reducing the total acreage of land, including coastal ares designated urban in the 1984 plan; adopting impact fees for fire protection and emergency medical services; adopting the 2010 overlay; and adopting the new Density Reduction/Groundwater Resource designation to reduce densities in sensitive areas to 1:10.
As noted above, the encouragement of privately funded infrastructure has not enjoyed much success in Lee County. As noted below, the adoption of the Density Reduction/Groundwater Resource designation with a low density of 1:10 over thousands of acres of the County allows a real separation of urban and rural uses. But, as noted in this section of the recommended order, data and analysis do not support the density designations in the 2010 overlay and thus the question remains open whether even the reduced densities authorized by the 2010 overlay are supported by data and analysis.
Baseline and Updated Existing Land Use Data: Data, Assumptions, and Methodology
Lee County possesses the baseline data for existing land uses by each land use category for each subdistrict. Lee County's Growth Management Director William Spikowski testified that the County possessed sufficient, baseline existing land use data, broken down by land use category and subdistrict, as of 1987. Tr., page 122. There is no basis in the record for discrediting the 1987 baseline data, 35/ but, for the reasons discussed in the Conclusions of Law, the criterion of supporting data and analysis requires in this instance that such crucial baseline data be included in the Data and Analysis (or the Amended Plan, if the County prefers).
For the faster-growing subdistricts, these baseline data were updated to 1990, which is when the 2010 overlay was adopted. Id. The record does not support the finding that, to the exclusion of fair debate, any problems exist with respect to the one-time 1990 update of the baseline data, which may have been produced by the independent consultant who prepared the commercial and industrial studies and initiated Map 1 and the 2010 overlay.
The point at which the 2010 overlay finds no support from the data and analysis is in the updating of the existing land use data from the 1987 (or 1990, where applicable) baseline data.
The 115 planning subdistricts in Map 16 are formed out of over 800 traffic analysis zones. Part of the reason for using the traffic analysis zones was the detailed data available for small areas of the County.
When confronted with the necessity of calculating exactly how much land remains in a specific subdistrict for a specific use, the County has a very poorly defined process whose results are unreliable. The updating process does not involve tracking actual land areas authorized for development in a specific land use under the 2010 overlay. Instead, the County reverts to traffic data, employs undisclosed conversion factors, and reaches a result that may or may not measure the extent of the development that it has authorized in the subdistrict under the 2010 overlay. The conversion process is unreliable and, even if it were reliable, may be measuring merely actual uses, but not already-authorized uses not yet in existence.
The unreliability of the updating process by which authorized development under the 2010 overlay is measured was disclosed in the testimony of Mr. Spikowski. The relevant portion of the transcript reads:
Q: Okay. Where would I find the--just the vacant acreage that you're proposing to allow to be developed?
A: The exact inventory is what I discussed as what we want to have--be able to take off the property appraiser's records for each parcel so that we can have a constantly updated figure.
We don't have that available. . . .
Tr., page 1294.
After discussing a recent rezoning request that evidently involved commercial uses, possibly as part of a mixed- use project, Mr. Spikowski explained that the County elected to do a manual count of existing land uses rather than rely on the traffic data and use a conversion factor. Mr. Spikowski testified in relevant part:
A: . . . instead of using the information we used, which is the 1987 inventory done for the traffic model where we had to use conversion factors to take employees back to acres, the right thing to do in that case
was to do a manual count, to do what we want to do on the computer.
And maybe week after next we're going to have the capability to do that. It had to be done manually.
Because we had base projections in here based on the inventory for the '87 traffic model, but it was calculated for commercial based on number of employees, because that's what the traffic model wanted.
For us to use it in the overlay we had to convert that back to acres using standard conversion factors, which introduces an element of error.
So before you would use this overlay as a regulation of telling somebody they cannot use their land, you really would need to manually check it.
Whether that goes to the property appraiser records for those sections or estimate of aerial photography with the Plan amendment, or either way would work. We tried both methods.
Q: I really can't do--take the documents that are in evidence and do this calculation because I can't tell what is existing?
A: You would have to--If you take the documents in evidence, I believe you'd have to assume that the conversion factors that are county-wide averages are correct for that subdistrict.
And again, for general planning purposes we were comfortable doing that, also knowing that we were getting this new system to do it automatically.
This is one of the regulatory flaws of the 2010 overlay and that's why it's become so hated in the development community.
They say, if you can't give us the exact amount, how can you expect us to live with it?
Tr, pages 1294-97.
The record is otherwise devoid of evidence describing the methodology by which the acreage allotments by subdistrict will be updated. The role of Map 17, as described by Policy 1.1.1, is to ensure that the County will not authorize development that would exceed relevant acreage totals. There are absolutely no data or analysis supporting the crucial updating process. Nothing in the Amended Plan or the Data and Analysis prevents the County from, if it so chooses, using traffic data (which may possibly ignore authorized uses that have not yet placed vehicles on the road), converting employees to acres by some undisclosed formula (or perhaps residents to acres through the undisclosed historic density adjustment), and determining that the development would not exceed the acreage allotment.
It is to the County's credit that, in the rezoning application described by Mr. Spikowski, it manually determined existing land uses in the affected subdistrict to determine if additional acreage were available. This is the "right thing to do" for using the 2010 overlay "as a regulation." But the 2010 overlay is unsupported by data and analysis unless the County restricts itself to a reliable updating process. The alternative updating process, which is based on converted traffic data, cannot be found, on basis of this record, to be any more reliable than reading owls' entrails.
The Amended Plan or Data and Analysis must assure that the County will adhere to more reliable means of measuring interim increases in land uses authorized under the 2010 overlay. Even if the County implements a computer- assisted reading of updated property appraiser records, questions remain concerning, for instance, the accuracy of such records as measurements of the extent of development authorized by the County pursuant to the 2010 overlay and the frequency with which these measurements must be updated in order to ensure
that acreage allotments are not exceeded. These matters must be described either in the Amended Plan or the Data and Analysis for the designations contained in the 2010 overlay to find support in the data and analysis.
As to Issues 3 and 4, for the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the Maps 1, 16 and 17 of the amended future land use map series are not supported by data and analysis.
Transportation (Issues 8 and 9)
With five exceptions not material to this case, Policy 21.1.1 adopts the Metropolitan Planning Organization's (MPO) 2010 Financially Feasible Map as the Interim Traffic Circulation Plan Map. This color map is Map 3 in the Amended Plan. Policy 21.1.5 explains that the future traffic circulation map series consists of Map 3, the MPO 2010 Needs Plan (Map 4), and a map of ports, airlines, and rail lines (Map 13).
The Plan Amendments completely revised Policies 21.1.1 and 70.1.3.6, which adopt minimum peak hour/peak season level of service standards 36/ for roads in Lee County. The adopted level of service standard is D for freeways, such as I-75, and principal arterials under state jurisdiction other than US 41. The Amended Plan assigns a level of service E to all other roads, which are County arterials and collectors, and state minor arterials and others, as well as US 41.
Concerning constrained roads, Policy 22.1.3 provides:
<<Due to scenic, historic, environmental, aesthetic, and right-of-way characteristics and considerations, Lee County has determined that certain roadway segments will not be widened. Therefore, reduced peak hour levels of service will be accepted on those constrained roads as a trade-off for the preservation of the scenic, historic, environmental, and aesthetic character of the community. These constrained roads are defined in Table 2(b). Growth on those constrained roads will be permitted only within the volume-to-capacity (v/c) ratios established in this plan and only if consistent with the Operational Improvement Program for those constrained roads.>>
Table 2(b) identifies nine state and County road segments that are constrained. Policy 22.1.9 sets a maximum volume-to-capacity ratio of 1.85:1 and prohibits the issuance of additional permits for development affecting the constrained segment once that ratio has been reached. Policy 22.1.10 establishes an Operational Improvement Program for each constrained segment.
There is no evidence that Lee County has identified as constrained road segments roadways for which capacity-enhancing projects are not appropriately limited by scenic, historic, environmental, aesthetic, or right- of-way factors. Petitioner has failed to prove to the exclusion of fair debate that the treatment of constrained roads in the Amended Plan is inconsistent with any of the criteria of the growth management law.
Table 2(a) identifies 26 state and County road segments that are backlogged. The treatment of backlogged roads in the Amended Plan is much more elaborate. Even though these road segments do not, by definition, meet the minimum level of service standards otherwise adopted in the Amended Plan for roads of their functional classifications, the Amended Plan requires neither the addition of greater transportation capacity in the affected area nor the cessation of development impacting the affected area.
Instead, the Amended Plan offers a two-part alternative. Under the Traffic District Program, a backlogged road segment may be viewed in the context of a much larger area. Pursuant to the Interim/Operational Improvement Program, interim operational improvements may be undertaken, but are not required to restore the subject road segment to its otherwise applicable level of service standard. As to Issue 8, the Traffic District Program in particular has a clear impact on the consistency of the Amended Plan and Plan Amendments with the criteria of setting level of service standards for roads, ensuring concurrency for roads, and correcting infrastructure deficiencies regarding roads.
Policy 22.1.2 states:
<<The minimum acceptable levels of service specified in Policy 22.1.1 shall not apply on an interim basis to the backlogged roads identified in Table 2(a). It is the County's intent that those segments will be improved to the identified standard in the shortest period possible, but no later than December 31, 1999. During that interim period, however, growth on those backlogged roads may be permitted if it is consistent with the Traffic District Program (Policy 22.1.5) and Interim/Operational Improvements Program (Policy 22.1.6).>>
Policy 22.1.5 provides:
<<A Traffic District Program is hereby established for purposes of determining allowable development affecting backlogged roads. On at least an annual basis, Lee County shall estimate the service volumes for all City, County and State collectors, arterials and freeways within each traffic district, and shall determine the district- wide service volume surplus or deficiency.
Development permits that affect a backlogged road may still be approved provided that the surplus service volume resulting from the existing surplus service volume, any service volume increases due to committed roadway improvements, and any service volume increases due to interim improvements (reported as a percent of existing service volume on a district basis) is equal to or exceeds the annual percent increase in traffic on a traffic district
basis. However, such permits will be issued only if mitigation is provided in accordance with Policy 22.1.13.
In the event that the percent service volume growth identified above on a traffic district basis is less than the percent traffic growth in that district, no permits will be issued by Lee County for development that affects the backlogged segment. Such development will be permitted only if capacity enhancement and/or operational improvements are programmed for implementation within the specific District so that the total service volume growth for the District will again be equal to or greater than the District traffic growth. Growth on non-backlogged roads will not be affected. Development that does not affect the backlogged segment will still be allowed.
For purposes of calculating service volumes for the Traffic District Program, the following rules apply:
Constrained roads (see Table 2(b)) will not be included in the determination of traffic growth and percent service volumes.
Percent traffic growth will be based on the last full year of traffic count information.
Committed roadway improvements for purposes of this calculation are those improvements under a current construction contract.>>
Policy 22.1.6 states:
<<For the identified backlogged roads (see Table 2(a)), and as any additional backlogged roads may emerge over time, an Interim/ Operational Improvement Program will be established. The Interim/Operational Improvement Program will include the following types of improvements:
Phased improvements, representing a staged implementation of the eventual improvement that is needed to return the backlogged road to the minimum acceptable level of service.
Operational improvements, representing short-term measures to improve traffic operations and expand capacity prior to the eventual roadway improvement.>>
<<The initial Interim/Operational Improvement Program for backlogged roads is identified in Table 2(c).>>
<<On an annual basis, a minimum of five backlogged roads will be studied in detail by Lee County with specific interim/operational improvements identified. Specific interim/ operational improvements shall be incorporated into the County's Capital Improvements Program. Initially, six backlogged roads have been studied in detail including portions of US 41 South, US 41 North, McGregor Boulevard, Gladiolus Drive, San Carlos Boulevard, and Metro Parkway. The selection of specific interim/operational improvements to be constructed in any given year may be adjusted as deemed necessary by Lee County to reflect developer funding opportunities, adjustments to construction schedules, other agency improvement projects and schedules, and alternative improvements of a comparable nature. Specific interim/ operational improvements shall be included in all following updates of the County's Capital Improvements Program to ensure the expeditious construction of those improvements.>>
Policy 22.1.8 assures that, "[a]fter December 31, 1999, Lee County shall measure concurrency on all roads on a roadway segment-by-segment basis rather than using the Traffic District Program contained in this plan."
Policy 22.1.13 provides:
<<All proposed development activity, as part of the concurrency management process, will be reviewed against the Traffic District
Program, the Interim/Operational Improvement Program for backlogged roads and the Operational Improvement Program for constrained roads. Development activity affecting backlogged and constrained roads will be required to mitigate its traffic impacts:
For that development activity determined not to affect a backlogged and/or constrained road segment, traffic mitigation will consist of payment of Roads Impact Fees and needed intersection improvements at the site entrance(s).
For development activity determined to affect a backlogged and/or constrained road segment, traffic mitigation may include, but not necessarily be limited to, the following:
Advanced, lump sum payment of Roads Impact Fees to Lee County;
Developer construction or financing, with Lee County approval, of one or more of the interim or operational improvements identified in the Interim/Operational
Improvement Program for backlogged roads or the Operational Improvement Program for constrained roads;
Developer prepares, with Lee County approval, a detailed Interim/Operational Improvement Program for the affected road(s) and funds one or more of the needed interim or operational improvements; and
Developer funding of needed road improvements.>>
<<Lee County's Concurrency Management Ordinance shall be amended prior to the end of 1990 to specify the impact mitigation procedure and threshold measurements for mitigation purposes.>>
The establishment of the Traffic Districts for backlogged roads is left to the Revised Data and Analysis. At page VI-7 of Joint Exhibit 10.a is a map dividing Lee County into nine traffic districts. Six districts cover the entire mainland. The districts approximate the preexisting districts created by Lee County in the implementation of its traffic impact fee program.
The service/traffic formula does not operate in isolation. As noted above, the Interim/Operational Improvement Program also requires developer- provided mitigation. However, the required mitigation does not require the developer to restore the road segment to its otherwise applicable adopted level of service standard and may not even affect the road segment impacted by the proposed development. More importantly, the service/traffic formula requires little of the County in addressing the problem of backlogged roads before 2000.
A graph on p. VI-10 of Joint Exhibit 10.a provides the necessary data to calculate the service/traffic formula to determine if, under this formula, Lee County would likely be precluded from issuing final development orders due to the presence of backlogged roads. A sample calculation on p. VI-6 of Joint Exhibit 10.a illustrates the calculation. As noted on the graph, the service/traffic formula is inapplicable to two of the island traffic districts, which contain only constrained roads.
The service/traffic formula, as a practical matter, eliminates the possibility of concurrency-imposed limitations on development due to the enforcement of level of service standards on nonconstrained roads in any of the six mainland districts. The reason is the vast difference--in each district-- between existing service volume and traffic volume. But this difference bears no relationship to the fact that many road segments are already operating below their otherwise applicable level of service standards and that, under the Traffic District Program, many more road segments, not presently backlogged, will also operate below their otherwise applicable level of service standard prior to 2000.
Assuming the same annual increase in traffic volume as presently exists for each mainland district, the service/traffic formula would not require Lee County to build or commit to build any road improvements for over 10 years in Districts 1, 2, 5, and 8, six years in District 4, and seven years in District 3. In other words, the service/traffic formula allows Lee County to continue to issue final development orders impacting backlogged road segments
and causing more road segments to become backlogged for at least six years anywhere on the mainland and over 10 years for most of the mainland--even in the absence of any capacity- enhancing transportation improvements.
The combination of the service/traffic formula and the vast areas covered by the mainland districts allow the perpetuation of congested conditions on nonconstrained roads in Lee County. The Traffic District Program, including the service/traffic formula, renders completely meaningless the adopted level of service standards for nonconstrained roads and concurrency as it applies to nonconstrained roads. The formula and program also relieve Lee County of any obligation to correct transportation infrastructure deficiencies, or even address such deficiencies.
The above-stated findings apply even if Table 2(a) and other provisions of the Amended Plan effectively limited the number and length of backlogged road segments to those listed on Table 2(a). Even worse, however, the Amended Plan does not so limit backlogged roads, and Table 2(a) is merely descriptive of road segments that were backlogged when the Plan Amendments were adopted. As contemplated by the first clause of Policy 22.1.6, "additional backlogged roads may emerge over time." This possibility is repeated in the Revised Data and Analysis, which concede that "backlogged and constrained roads may be added to the list over time." Joint Exhibit 10.a, page VIII-5.
By effectively ignoring existing backlogged roads and allowing more roads to become backlogged, Lee County has deferred the adoption of level of service standards and postponed concurrency until the year 2000 when the Traffic District Program ends. When a road segment falls below its otherwise applicable standard, the effect of the Traffic District Program and Interim/Operational Improvement Program is to override concurrency by allowing development impacting the affected road segment to proceed without regard to the availability of capacity-enhancing transportation improvements sufficient to restore the affected roads to their otherwise applicable level of service standards.
The short-term prospects for roads in Lee County are discussed in the Revised Data and Analysis. In its discussion of existing roads, the Revised Data and Analysis note:
The rapid growth in Lee County's population during the past several years has been accompanied by even more rapid growth in traffic volumes on Lee County roads.
According to the [FDOT] . . ., traffic volumes (daily vehicle miles traveled) in Lee County increased by 126 percent from 1979 to 1987, the second highest rate of growth in the State of Florida. This rapid growth in traffic is expected to continue.
. . . Generally, historic road construction has not kept pace with traffic growth.
However, Lee County has recently embarked on an ambitious roadway improvement program and the pace of construction has accelerated in recent years.
Joint Exhibit 10.a, page IV-1.
The discussion of the existing road network adds that the existing plus committed roadway network includes major roadway improvements programmed by State and local governments for construction through 1994.
Addressing backlogged roads, the Revised Data and Analysis state:
Despite the accelerated roadway construction activity in Lee County, many road segments are becoming increasingly congested. Several already meet or exceed the level of service standards established in the Lee Plan. . . .
Joint Exhibit 10.a, page V-1.
The Revised Data and Analysis describe two exhibits displaying information about traffic volumes. Exhibit V-1 analyzes 1989 traffic volumes with the existing road network. Exhibit V-3 analyzes 1994 traffic volumes with the existing plus committed road network, which reveals that several backlogged segments from Exhibit V-1 have been eliminated and several new backlogged segments have been added. The Revised Data and Analysis explain that Exhibit V- 7, which lists all of the backlogged roads on Table 2(a), shows which backlogged roads will be "relieved to some extent by committed improvements." Joint Exhibit 10.a, page V-3. The Revised Data and Analysis acknowledge that "there are no major improvements programmed for several backlogged roads in Lee County." Id.
Exhibit V-1 shows that, for 1989, there were 26 backlogged road segments for a total of 27.3 miles. 37/ Of these, 18 segments for 18.2 miles were under state jurisdiction, rather than County jurisdiction. Exhibit V-3 shows that, for 1994, based on the existing plus committed road network, there will be 28 backlogged road segments for a total of 34.2 miles. The total for state backlogged roads is projected to rise even more rapidly: 22 road segments for a total of 29.4 miles.
As indicated by the text, Exhibit V-7 shows that several backlogged roads listed in Table 2(a) are not scheduled to receive committed improvements (presumably through 1994). Recommended improvements to eliminate backlogged conditions (Joint Exhibit 10.a, page VII-4) are shown on Exhibit VII-7. However, nothing in the Amended Plan commits the County to undertaking these projects. The purpose of Exhibit VII-7 is to show the work needed over a ten-year period to restore backlogged roads to their otherwise applicable level of service standards. Some of the projects would be outside of the five-year period covered by the schedule of capital improvements on page VII-21 of the Amended Plan.
But, in addition to the fact that Lee County does not commit itself in the Amended Plan to undertaking this work, nothing in Exhibit VII-7 addresses those road segments that become backlogged at a later date.
As to Issue 8, Petitioner has proved to the exclusion of fair debate that, as to all nonconstrained roads not under the jurisdiction of any municipality, the Amended Plan is inconsistent with the criteria of setting level of service standards, ensuring concurrency, and correcting existing infrastructure deficiencies.
As to Issue 9, Petitioner argues that the Plan Amendments regarding transportation are not financially feasible because the capital improvement schedule does not identify a current source of funding for all of the road improvements described in the Plan Amendments as "necessary or desirable."
It is not entirely clear what Petitioner means by road improvements that are described as "necessary or desirable." These words correspond to the MPO Needs Plan and MPO Financially Feasible Plan. Of course, these plans, which are adopted in the Amended Plan as Maps 4 and 3 respectively, pertain to the year 2010, and the five-year capital improvements schedule properly pertains only to 1995.
Petitioner may mean by "necessary and desirable" that the road projects do not adequately address backlogged roads, so as to allow the Traffic District Program to attain consistency. This issue has been addressed in connection with Issue 8. Except to the extent that the financial feasibility of transportation improvements has been addressed in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate that the transportation capital projects are inconsistent with the criterion of financial feasibility.
Miscellaneous Minimum Criteria (Issues 1, 10, and 12)
As to Issue 1, nothing in the Plan Amendments or Revised Data and Analysis addresses directly the issue of private potable water suppliers. The Plan Amendments create a new future land use category, Density Reduction/Groundwater Resource. The Revised Data and Analysis discuss four studies or reports focusing on the aquifers in Lee County and aquifer recharge areas. But the focus of these material is general and on hydrogeologic supplies, rather than on the specific entities presently involved in producing potable water.
As to Issue 10, nothing in the Plan Amendments or Revised Data and Analysis addresses coordination between Lee County and its Amended Plan and the Charlotte Harbor Management Plan. However, the separate issue whether the Plan Amendments are consistent with the provisions of the Charlotte Harbor Management Plan is addressed below.
As to Issue 12, the only provisions amended by the Plan Amendments are Policies 2.2.2 (primarily third factor and flush language), 15.2.2, 38.1.6, 38.4.1, and 38.4.3, as well as the 2010 overlay. The remaining objectives and policies were unchanged by the Plan Amendments.
Policy 2.2.2 states:
Map 1 of Tthe Future Land Use Map <<series>> indicates the uses and density ranges that will ultimately be permitted on a given parcel. However, it is not a guarantee that such densities or uses are immediately appropriate, as the map provides for the county's growth over the coming 70 years.
During the rezoning process the Board of County Commissioners will balance the overall
standards and policies of this plan with [[two]]
<<three>> additional factors:
--whether a given proposal would further burden already overwhelmed existing and committed public facilities such that the approval should be delayed until the facilities can be constructed; <<or>>
<<--whether a given proposal is for land so far beyond existing development or adequate
public facilities that approval should be delayed in an effort to encourage compact and efficient growth patterns.; or>>
<<--whether a given proposal would result in unreasonable development expectations which may not be achievable because of acreage limitations on the "Year 2010 Overlay" (see Policy 1.7.6 and Maps 16 and 17).>>
<<In all cases where rezoning is approved, such approval does not constitute a determination that the minimum acceptable levels of service (see Policy 70.1.3) will be available concurrent with the impacts of the proposed development. Such a determination must be
made prior to the issuance of additional development permits, based on conditions which exist at that time, as required by Lee County's concurrency management system.>>
The 2010 overlay designates the proposed location of various future land uses in Lee County. Map 1 shows where certain land uses may generally be located for the next 70 years. Maps 16 and 17 limit these land uses for the next
20 years and, to some extent, show where these land uses may be permitted during that timeframe. Although the specific locations of land uses prior to 2010 are not disclosed by Maps 16 and 17, the generalized locations are.
There is nothing vague or ambiguous in Policy 2.2.2. Misciting Policy
2.1.2 as Policy 2.2.2, Petitioner argues in her proposed recommended order that certain language is vague, but she did not plead Policy 2.1.2, which, in any event, was unchanged by the Plan Amendments.
Objective 15.2 provides:
COMMUNITY FACILITIES. Within funding constraints, the county shall attempt, during 1989, 1990, and 1991, to incorporate the following recommendations of the ad-hoc Bonita Study Group into the planning process for public facilities.
Policy 15.2.2 states:
<<IRRIGATION WELLS. Bonita Springs (as defined in this plan) is hereby declared a critical area for future potable water supply, based
on evidence that withdrawals from the main potable aquifer, the lower Tamiami aquifer,
are approaching or exceeding the maximum safe yield. In response to this designation, the county shall amend current regulations to provide that new irrigation well permits in Bonita Springs may not utilize the main potable water source. (Also see Policy 32.1.9 for new permit requirements for wells in Lehigh Acres, and Policy 2.4.3 for special requirements for amendments to the Future Land Use Map.)>>
Policy 15.2.2 is not vague, nor does Petitioner argue grounds for vagueness as to Policy 15.2.2 in her proposed recommended order.
Policy 38.1.6 provides:
<<Within one year after the adoption of this policy, Lee County shall amend its land development regulations to require that proper stormwater management systems be installed when land is being redeveloped.
Appropriate exemptions shall be provided to this requirement for individual residential structures and for historic districts. The regulations may also provide modified stormwater management standards for publicly sponsored projects within community redevelopment areas (as defined by Chapter 163, Part III, Florida Statutes). However, this policy shall not be interpreted so as to waive any concurrency level-of-service standards.>>
Petitioner argues in her proposed recommended order that the words "proper," "appropriate," and "modified" lack sufficient definition so as to render Policy 38.1.6 vague and ineffective. The terms are sufficiently definite to provide enforceable guidance to the County in the adoption of implementing land development regulations. The word "proper" incorporates the stormwater level of service standards stated at Policy 38.3.1. The word "appropriate" applies to reasonable exceptions to the stormwater level of service standards for individual residences and historic districts.
The word "modified" creates a reasonable exception to the stormwater level of service standards for publicly sponsored community redevelopment areas. There are communities in Lee County, such as Harlem Heights, where the housing is seriously substandard and the community is eligible for publicly sponsored redevelopment, as well as interim assistance through such projects as Habitat for Humanity. Evidently due to relatively low elevations, at least when the housing is compared to adjacent roadways, the Harlem Heights community also suffers from a seriously inadequate (and possibly nonexistent) stormwater management system.
Ideally, all areas within Lee County should be subject to, and receive the benefits of, effective stormwater management. However, communities desperately in need of publicly funded redevelopment, such as Harlem Heights, present a special challenge. As a practical matter, the treatment of publicly
sponsored projects within community redevelopment areas by Policy 38.1.6 represents a fair accommodation of competing policy demands in providing stormwater management and decent, affordable housing.
Objective 38.4 states:
<<CRITICAL AREAS. The Six Mile Cypress Basin (as defined in Ordinance #83-5 as amended) and the Density Reduction/Groundwater Resource land use category are both identified as "critical areas for surface water management." By December 31, 1990, the county shall adopt additional regulations to protect the unique environmental and water resource values of these areas.>>
The policy cluster under Objective 38.4 provide:
<<Policy 38.4.1: The county shall amend the Six Mile Cypress Ordinance to reduce or eliminate the exemptions allowable in the ordinance.>>
<<Policy 38.4.2: The county shall conduct public hearings to consider amending the boundaries of the Six Mile Cypress Ordinance to include all land within the Density Reduction/Groundwater Resource land use category.>>
<<Policy 38.4.3: The county shall amend the Wetlands Protection Ordinance (#86-31), the Tree Protection Ordinance (#86-34), and the Development Standards Ordinance (#82-42 as amended) to reduce or eliminate the exemptions for agricultural uses and small subdivisions within the "critical areas for surface water management" and shall subject
these uses to an appropriate review process.>>
The Revised Data and Analysis explain that Lee County has adopted over the years various environmental ordinances, including the Six Mile Cypress Ordinance, Wetlands Protection Ordinance, Tree Protection Ordinance, and Development Standards Ordinance. The Revised Data and Analysis note that exemptions have been adopted that can reduce the effectiveness of these ordinances in "'critical areas for surface water management.'" Joint Exhibit 10.c, page VI-2.
Reviewing the exemptions to the Six Mile Cypress Ordinance, the Revised Data and Analysis observe that the exemptions should be revised so that, under the ordinance, the County must "consider all impacts to surface water flow." Joint Exhibit 10.c, page VI-3. As for the Wetlands Protection Ordinance, the Revised Data and Analysis conclude that its expansion "is probably necessary to limit the impact of clearing of wetlands for agricultural purposes." Id. The Revised Data and Analysis observe that amending the Tree Protection Ordinance would reduce incentives to remove trees and understory vegetation, which assist in water quality and quantity considerations in
stormwater management. The Revised Data and Analysis note that the Development Standards Ordinance exempts small subdivisions, whose impervious surfaces alter surface water flow.
Petitioner correctly argues in her proposed recommended order that the reduction or elimination of exemptions by an unstated amount or without regard to a stated objective is vague and ineffective. However, the assurances involve only land development regulations that, in the context of a limited plan- amendment challenge, do not play a significant role in the outcome of the case. The vagueness is thus harmless.
Contrary to Petitioner's assertions, the 2010 overlay is not confusing, nor does it fail to depict the general distribution, extent, and location of the required land use categories. Although more conventional future land use maps are more precise in rendering the location of future land uses, the imprecision of the 2010 overlay is not inconsistent with the criteria of the growth management law. As noted above, the shortcomings of the 2010 overlay result from the lack of crucial supporting data and analysis.
Internal Consistency (Issue 13)
Issue 13 alleges that the Amended Plan is internally inconsistent.
Petitioner argues that the Traffic Circulation Element and transportation improvements contained in the five-year schedule of capital improvements are inconsistent. She also argues that Goal 2, which requires financial feasibility, and the Traffic Circulation Element, including the financially feasible transportation map, are inconsistent. She asserts the same grounds as she does in connection with Issue 9, which has been discussed above. Based on the findings set forth in connection with Issue 9, and subject to the findings set forth in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate any inconsistency between the Traffic Circulation Element and Goal 2 or the transportation improvements contained in the five-year schedule of capital improvements.
As noted above, Policy 1.7.6 requires that final development orders and building permits be consistent with the 2010 overlay, including Map 17. Policy 1.7.6 does not impose this requirement upon rezonings. Petitioner asserts that Policy 1.7.6--particularly its omission of rezonings--is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a) of the Amended Plan.
Petitioner argues in her proposed recommended order that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2 because of the emphasis on zoning in the two objectives. The objectives state:
DEVELOPMENT LOCATION. Contiguous and compact growth patterns shall be promoted through the rezoning process to contain sprawl, minimize energy costs, conserve land, water and natural resources, minimize the cost of services, and reverse typical development patters where large tracts of land are bypassed in favor of development more distant from services and existing communities.
DEVELOPMENT TIMING. Direct new growth through the rezoning process to those portions of the Future Urban Areas where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created.
Goal 12 is: "To ensure that appropriate water, sewer, traffic, and environmental review standards are considered in reviewing rezoning applications and are met prior to issuance of a county development order." Section XIII(a) of the Amended Plan adds in part: "Upon adoption of this amended plan, all development and all actions taken in regard to development orders shall be consistent with the plan as adopted."
Given the subordinate role of zoning to the designations contained in the Amended Plan and future land use map series, the conflicts perceived by Petitioner either do not exist or, if they exist, are harmless. The Amended Plan governs. Zoning is of such inferior importance that any conflict will be resolved in favor of the Amended Plan. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a).
Petitioner asserts that Policy 2.2.2 and Section XIII(a) are inconsistent. As noted above, Policy 2.2.2 identifies the factors that will govern rezonings. This policy explicitly subjects rezoning to the concurrency requirements of the Amended Plan. Nothing in this policy attempts to allow rezoning to override the acreage allotments contained in the 2010 overlay and implemented by Policy 1.1.1. Although it would have been preferable for Policy
2.2.2 to acknowledge the acreage allotments as limitations upon land uses that can be authorized, the subordinate role of zoning, as compared to land use designations in the comprehensive plan, emerges clearly from the Amended Plan as a whole. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 2.2.2 and Section XIII(a) are inconsistent.
Petitioner alleges that the amended future land use map is inconsistent with Goals 71, 75, 77, and 79; Objectives 2.3, 74.1, 75.1, 77.3, 77.4, 79.1, and 87.1; and Policies 77.2.2, 77.4.4, 77.11.5, and 83.1.4.
Goal 71 is to: "To protect the public from the effects of natural and technological hazards through county emergency plans and programs."
Objective 74.l provides:
ENVIRONMENTALLY CRITICAL AREAS. By 1990, land
within coastal area environmentally critical areas, including present Resource Protection Areas and Transition Zones and Rare and Unique upland habitats, shall be regulated and managed so as to conserve and enhance the natural functions of these critical areas.
Goal 75 is: "To protect human life and developed property from natural disasters." Objective 75.l adds:
DEVELOPMENT IN HAZARD AREAS. Development
(other than minor structures) within the V Zones shall not be allowed seaward of the Coastal Construction Control Line as it exists in 1988; new development on barrier islands shall be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion shall not be permitted; and allowable densities for undeveloped areas within A Zone areas will be considered for reduction.
Goal 77, Objectives 77.3 and 77.4, and Policies 77.2.2, 77.4.4, and
77.11.5 have been set forth above. 38/
Goal 79 is: "To provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.l adds:
EVACUATION. By 1995, evacuation times will be restored to 1987 levels using the 1987 Southwest Florida Regional Hurricane Plan Update as guidance; and by 2010, the clearance time portion of evacuation time will not exceed 18 hours.
Policy 83.1.4 provides:
Lee County shall protect and conserve the following environmentally sensitive coastal areas: wetlands, estuaries, mangrove stands, undeveloped barrier islands, beach and dune systems, aquatic preserves and wildlife refuges, undeveloped tidal creeks and inlets, critical wildlife habitats, benthic communities, and marine grass beds.
Objective 87.1 states:
WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems.
Petitioner argues in her proposed recommended order that the future land use map series is inconsistent with Goals 71 and 75 because the Amended Plan increases densities in the hurricane vulnerability zone in the North Bonita Springs area and fails to coordinate land use designations with evacuation times and shelter space capacities. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goals 71 and 75.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 74.1, which requires the County, by 1990, to "conserve and enhance the natural functions" of environmentally critical areas in the coastal area. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 74.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 75.1, which requires the County to consider reducing allowable densities in the hurricane vulnerability zone. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 75.1.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Goal 77, which requires the County to manage the County's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal diversity, water quality, and natural surface water characteristics. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Goal 77, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goal 77.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objectives 77.3 and 77.4, which require the County to "maintain and enhance" current fish and wildlife diversity and existing populations and distributions of listed species. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objectives 77.3 and 77.4, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objectives 77.3 and 77.4.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policies 77.2.2, 77.4.4, and 83.1.4, which call for the protection of unique or important natural plant communities, protection of critical habitats for the preservation of listed species, and protection of critical wildlife habitats in the coastal area, respectively. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with these policies, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by these policies.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policy 77.11.5, which provides in part: "Corridors for regulatory and public acquisition purposes shall be designated in [black bear and Florida panther] use areas." Added by the Plan Amendments, Policy 77.11.5 is not inconsistent with the Plan Amendments concerning the future land use map series. The orientation of Policy 77.11.5 is prospective and does not require immediate implementation through amendment of the future land use map series to show corridors that are subject to additional regulatory controls or are eligible for public acquisition.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 79.1, which requires the County, by 1990, to restore evacuation times to 1987 levels by 1995 and to
ensure a maximum clearance time of 18 hours by 2010. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 79.1.
Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 87.1, which requires the County, by 1990, to ensure sufficient quantity and quality of water to meet present and projected demands of all consumers and the environment. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 87.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1.
Consistency with Charlotte Harbor Management Plan (Issue 14)
The Charlotte Harbor Management Plan, which was adopted June 5, 1981, is a resource management plan prepared and adopted pursuant to Section 380.045, Florida Statutes. Lee County is within the jurisdiction of the Charlotte Harbor Management Plan.
Under "regulatory actions," there are 12 objectives in the Charlotte Harbor Management Plan. Beneath each objective are implementation actions that pertain to specified federal, state, regional, and local agencies. Twenty-two implementation actions apply to local governments, such as Lee County.
Objective 4 of the Charlotte Harbor Management Plan provides: "Future development in floodplain areas is to occur only in a manner consistent with the function of floodplains."
In her proposed recommended order, Petitioner argues that the Amended Plan lacks specific provisions identifying the functions of floodplains and requiring new development to be consistent with floodplain functions.
Petitioner also argues that the Amended Plan fails to coordinate densities and intensities with tidal floodplains.
Except for the stormwater level of service standard, which is discussed below in connection with Objective 5, nothing in the Amended Plan directly addresses floodplains. The floodplain map--Map 9--was part of the future land use map series in the Plan and was unchanged by the Plan Amendments. In general, Petitioner argues only that the Amended Plan fails to deal effectively with floodplain issues.
The Plan Amendments substantially change designated land uses by applying the new Density Reduction/Groundwater Resource designation to thousands of acres in the County. The correspondingly reduced densities and restricted intensities, especially as compared to previously authorized land uses, are much more consistent with floodplain functions.
Objective 5 of the Charlotte Harbor Management Plan requires: "The stormwater and drainage systems of the Charlotte Harbor area are to function in a manner that protects and preserves the Charlotte Harbor estuarine system." The second implementation action under Objective 5 requires local governments to:
establish plans and regulations requiring post development runoff conditions to approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin.
The summary of the problem addressed by Objective 5 states:
Improperly designed and maintained stormwater/ drainage systems have affected the quality
and quantity of freshwater flowing into area water bodies. These systems have transported various pollutants, including nutrients, sediments, pesticides, heavy metals, and animal waste to local waters. While some of these waters have recognized water quality problems, most of the area's valuable water resources are still of good quality.
However, with an expected doubling of population in the next twenty years, preventative action is necessary to prevent further degradation.
In addition to the quality of freshwater inflows, the sufficient quantities of freshwater corresponding with the natural hydroperiod are necessary to maintain the productivity of the estuaries. While the flows necessary to meet estuarine needs are unknown, continued development of stormwater/ drainage systems which alter the rate and hydroperiod of runoff may adversely impact estuarine productivity.
Petitioner Exhibit 2, page 5.
Objective 38.3 of the Amended Plan is to "[r]evise by 1994 the surface water management level-of-service standards for basins and sub-basins identified in the Surface Water Management Master Plan." The Surface Water Management Master Plan was to have begun in 1989, according to Policy 38.1.1.
Policy 38.3.1 of the Amended Plan provides:
As an interim measure, the following surface water management standards are adopted as minimum acceptable levels of service for unincorporated Lee County . . .:
<<Existing>> [[Public]] Infrastructure The [[public stormwater]] <<existing>> [[trunk]]
<<surface water>> management system <<in any basin>> in the unincorporated areas of the county, [[including drainage districts]] shall be sufficient to
prevent the flooding of <<designated evacuation routes (see Map 15) from the 25-year, 3-day storm event (rainfall)>> [[the public roads to a
depth of 12 inches or greater]] for more than [[3 consecutive days]] <<24 hours>>.
Regulation of Private <<and Public>> Development
Surface water management systems in <<new>> private <<and public>> developments <<(excluding widening of existing roads)>> shall <<be designed to detain or retain excess stormwater to
match the predevelopment discharge rate for>> [[meet or exceed]] the <<25-year, 3-day storm event (rainfall)>>. [[minimum standards of the South Florida Water Management District as set
forth in the Permit Information Manual, Volume IV, Management and Storage of Surface Water (West Palm Beach, 1986), as may be amended from time to time, and shall meet
local regulations in order]] <<This standard is designed>> to minimize <<increases of>> discharges to public water management infrastructure (or
to evapotranspiration) that exceed historic
<<rates>> [[natural volumes]], to minimize change to the historic [[natural]] hydroperiod of receiving waters, to maintain the quality of receiving
waters, [[at or above the applicable minimum standards set forth in Chapter 17-3, Florida Administrative Code ("Water Quality Standards," Florida DER)]], and to eliminate
the disruption of wetlands and flow-ways, [[the]]
<<whose>> preservation [[of which]] is deemed in the public interest.
The implementation action requiring local governments to require that postdevelopment runoff approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin is the only implementation action involving local governments that imposes specific performance standards. The analysis contained in the Charlotte Harbor Management Plan clearly links the health of the estuarine system to preservation of natural rates and hydroperiods of runoff. Obviously, degraded water quality or alteration of drainage basin also impacts the estuarine system.
Policy 38.3.1.B, which underwent substantial revisions by the Plan Amendments, imposes a single requirement upon development in terms of runoff: postdevelopment rate must match predevelopment rate for the 25-year, 3-day storm event. It is irrelevant that this is an interim level of service standard. The stormwater level of service standard contained in Policy 38.3.1.B deviates from Objective 5 of the Charlotte Harbor Management Plan in three important respects. First, it fails to incorporate water quality, basin, and hydroperiod into the performance standards of the level of service standard. Second, it qualifies
even the rate standard by a specified storm event of specified duration, even though Objective 5 of the Charlotte Harbor Management Plan is not so limited. Regardless of the storm, Objective 5 imposes the requirement that postdevelopment conditions as to these four crucial factors approximate natural conditions. Obviously, natural conditions probably involve considerable flooding during and after the 100-year, 3-day storm; but the effect of the limitation in Policy 38.3.1.B is to allow postdevelopment conditions to exceed natural conditions once the specified storm has been exceeded. Third, the stormwater level of service standard contained in Policy 38.3.1.B ignores redevelopment, including but not limited to road-widening projects. When addressing redevelopment in particular, the postdevelopment conditions must match natural conditions, not merely predevelopment conditions.
Lee County argues that Policy 38.3.1.B addresses factors in addition to runoff rate. The second sentence of Policy 38.3.1.B imposes no additional requirements; it merely explains the intent of the County in imposing the rate requirement. By regulating the runoff rate, Policy 38.3.1.B may partly address water quality and hydroperiod issues; retained or detained postdevelopment stormwater may be of higher quality and may more closely approximate natural hydroperiods than unretained or undetained postdevelopment stormwater runoff. But these are indirect benefits of a performance standard addressing exclusively postdevelopment runoff rate. The County's stormwater standard may reduce change to hydroperiods and improve water quality--over undetained or unrestrained postdevelopment stormwater--but it does not impose the performance standards of unaltered hydroperiod, water quality, and basin. Nor, more importantly, will the County's stormwater standard assist in meeting the crucial objective of the Charlotte Harbor Management Plan to regulate stormwater and drainage to protect and preserve the Charlotte Harbor estuarine system, which is the primary focus of the resource management plan.
Petitioner has thus proved to the exclusion of fair debate that Policy 38.3.1.B is inconsistent with Objective 5 and the Charlotte Harbor Management Plan, construed as a whole. 39/
Objective 8 of the Charlotte Harbor Management Plan provides: "The barrier islands and beaches of the Charlotte Harbor area should be managed as a whole, recognizing that any developmental activity potentially affects the processes of the entire barrier beach, barrier island, and pass systems."
The second implementation action under Objective 8 is for the Florida Department of Natural Resources, Florida Department of Environmental Regulation, and U.S. Army Corps of Engineers to discourage the dredging of new channels and addition of more passes to the existing pass maintenance program. This implementation action does not apply to local governments. Petitioner has therefore failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with Objective 8 of the Charlotte Harbor Management Plan.
Objective 10 of the Charlotte Harbor Management Plan provides:
Future land development decisions by local government should be in accord with the goals and objectives of the Charlotte Harbor Committee, and existing platted areas should also be encouraged to develop in accord with these goals and objectives.
The third implementation action under Objective 10 requires local governments and the Florida Department of Transportation to ensure that: "Highway corridor planning for undeveloped areas . . . consider[s] suitability of adjacent land for urbanization and directing [sic] construction away from environmentally sensitive areas."
Petitioner argues in her proposed recommended order that Polices
27.2.1 and 27.2.2 of the Amended Plan are insufficient in terms of implementing the cited portion of the Charlotte Harbor Management Plan. However, these provisions were in the Plan and were unchanged by the Plan Amendments. For the reasons set forth in connection with Petitioner's challenge based on Objective 4 of the Charlotte Harbor Management Plan, nothing in the Plan Amendments addresses this aspect of transportation.
Objective 11 of the Charlotte Harbor Management Plan provides: "Mitigation and prevention of development impacts should be initiated during site planning and site alteration processes." The second implementation action requires local governments to:
require site development plans, provide for the maintenance of habitats for wildlife species, as listed by the Federal and State Endangered Species Acts, tree protection [sic], and prevent the introduction or spread of noxious vegetation.
Petitioner argues in her proposed recommended order that Policy
77.4.1 of the Amended Plan, which was substantially amended by the Plan Amendments, fails to coordinate with the implementation action under Objective
Petitioner asserts that Policy 77.4.1 is deficient because it refers only to the habitats of protected species listed by the Florida Game and Fresh Water Fish Commission and not those listed by the U.S. Fish and Wildlife Service.
There is no evidence of any material divergence between the state and federal lists of protected wildlife species. Specific objectives in the Amended Plan address loggerhead sea turtles, southern bald eagles, West Indian manatees, gopher tortoises, red-cockaded woodpeckers, wood storks, Florida panthers, and black bears.
Without a showing of some discrepancy between the state and federal wildlife lists, especially in the face of numerous provisions in the Amended Plan explicitly addressing specific wildlife species, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Objective 11 of the Charlotte Harbor Management Plan.
Consistency with Regional Plan (Issue 15)
The Southwest Florida Regional Plan (Regional Plan), which covers Lee County, discusses at length the problem of platted lands. Map 3 depicts vast areas of platted lands in the Lehigh Acres area of unincorporated Lee County and Cape Coral. In relevant part, the discussion states:
Southwest Florida has approximately 1.1 million existing platted lots . . .. Most of these platted and subdivided lots, although undeveloped, have been sold to individual owners who have expectations of building.
Regretfully, these platted areas often have not reflected the most efficient use of land. Also, due to their location, the provision of infrastructure access and service will be prohibitively costly. Further, aging of most of these subdivisions has resulted in deterioration and dilapidation of existing roads and drainage systems. Finally, many needed urban uses are not adequately provided for within these extensive plats.
* * *
. . . effective concentration of development activities and providing incentives for contiguous development are alternative methods of planning which continue to be discussed and debated within the Region.
Although these techniques would have a positive effect on land use patterns, they conflict with development desires of lot owners who purchased property previously reviewed and approved by the local government.
Efforts have been made to ensure that development is compatible with available and planned infrastructure services. Still, the problems of previously subdivided, yet still undeveloped, land remain; such problems are particularly severe for planning activities that must meet the 1985 Growth Management Act requirements, since these developments generally do not meet current regulations.
As growth continues, Southwest Florida will be under greater pressure to provide services
to new homes, businesses, and service centers. These platted areas will be popular, affordable home sites. Providing services to these lots, however, will become an
increasing burden. Additionally, the Region will have to consider providing alternative land use choices to current lot owners where development would not be desireable or cannot have services provided at the ultimate buildout densities.
Joint Exhibit 11.b, pages 16-8 to 16-9.
Regional Plan Goal 16 states:
By 2010, the number of vacant platted lots in areas without adequate infrastructure or in areas not designated for urban development in Southwest Florida will be reduced by 30%.
Goal 16 is an integral part of the Regional Plan. Effective land use planning may be impossible without addressing the problems presented by thousands of acres of vacant, prematurely platted lands. There is evidence that Lee County is addressing the problem. It has utilized vacant, preplatted lots to some extent in an affordable housing program. Lehigh Corporation, which is evidently a major developer in the Lehigh Acres area, has bought back some lots and/or exchanged better lots for more outlying and less developable lots. However, at the same time, Lehigh Corporation is subdividing more property in the Lehigh Acres area.
It is unclear whether Lee County will find itself with more or less vacant, preplatted lots by 2010. More likely, it will be less for a variety of reasons, but how much less is left entirely to conjecture based on the present record. Petitioner's argument in her proposed recommended order is based on the acreage remaining vacant in 2010 in planning subdistricts 601- 11, 704, and 706, which constitute much if not all of Lehigh Acres. However, the record does not establish how much of this acreage is already platted or how much of the vacant acreage remaining in 2010 will by then have been platted. For these reasons, as to Issue 15, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the Regional Plan.
Consistency with State Plan (Issue 16)
Petitioner argues in her proposed recommended order that the Amended Plan is inconsistent with Section 187.201(8)(b)2 and 12, (10)(b)10, (16)(b)2, and (18)(b)3.
Section 187.201(8)(b)2 is to: "Identify and protect the functions of water recharge areas and provide incentives for their conservation.
Petitioner argues in her proposed recommended order that the Amended Plan does not protect the functions of water recharge areas. She asserts that Policies 85.1.2 and 87.1.1, which generally require the protection of surface and groundwater quality and natural recharge systems, are vague and ineffective.
The Plan Amendments did not modify Policies 85.1.2 or 87.1.1. The Plan Amendments added the Density Reduction/Groundwater Resource designation to thousands of acres of land, together with Policy 1.4.3, which states:
<<The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and
transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas.>>
The Plan Amendments also added Policy 39.1.4, which provides:
<<The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category.>>
The Plan Amendments revised Policy 41.2.2, which states:
<<A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3.>>
Policies 15.2.2 and 32.1.9, which were added by the Plan Amendments, impose special land use restrictions in the Bonita Springs and Lehigh Acres areas, based on potable groundwater considerations. Policy 2.4.2, which was also added by the Plan Amendments, concludes by offering additional protection to these areas and all areas designated Density Reduction/Groundwater Resource:
<<All proposed changes to the Future Land Use Map in critical areas for future potable water supply (Bonita Springs as described in Policy 15.2.2; Lehigh Acres as described in Policy 32.1.9; and all land in the Density Reduction/Groundwater Resource land use category) shall be subject to a special review by the staff of Lee County and the South Florida Water Management District (SFWMD). This review will analyze the proposed land uses to determine the short- term and long-term availability of irrigation and domestic water sources, and will assess whether the proposed land uses would cause any significant impact on present or future water resources. If the Board of County Commissioners wishes to approve any such changes to the Future Land Use Map, it must make a formal finding that no significant impacts on present or future water resources will result from the change. (SFWMD's recommendations or findings under this policy shall not be construed to restrict or otherwise encumber their authority to issue or deny water-use permits as may be required by law.)>>
The Revised Data and Analysis survey recent hydrologic investigations for all relevant aquifers. The investigations amply support the Density Reduction/Groundwater Resource designations. The Data and Analysis provide no basis for questioning the consistency of the provisions of the Amended Plan in protecting the functions of water recharge areas with similar provisions in the State Plan. Largely due to the adoption of the Plan Amendments, especially the new Density Reduction/Groundwater Resource designation, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(8)(b)2.
Section 187.201(8)(b)12 is to: "Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." This is an integral part of the State Plan and is linked to the protection of surface waters including estuaries, drainage and floodplains, and various other natural resources.
For reasons already discussed in connection with Objective 5 of the Charlotte Harbor Management Plan, Petitioner has proved to the exclusion of fair debate that Policy 38.3.1.B, which sets an interim stormwater level of service standard, is inconsistent with Section 187.201(8)(b)2 with respect to the omission of hydroperiod, basin, and quality performance standards; the addition of a qualifying storm event; and the exclusion of redevelopment. 40/
A level of service standard is a vital provision in a comprehensive plan because the standard is typically clear and easily enforceable. The stormwater management provisions in the State Plan play a crucial role in attaining consistency with numerous provisions of the State Plan. For these reasons, Policy 38.3.1.B represents an inconsistency with the State Plan construed as a whole.
The inconsistency between Policy 38.3.1.B and the State Plan is limited to the failure of Policy 38.3.1.B: 1) to set a stormwater level of service standard throughout Lee County requiring postdevelopment conditions to be equal to or better than natural conditions in terms of water quality, hydroperiod, and basin, as well as rate; 2) to impose the stormwater level of service standard throughout Lee County regardless of the storm event; and 3) to impose the stormwater level of service standard on all development and redevelopment in Lee County. 41/
Petitioner argues in her proposed recommended order that the inconsistency with the State Plan extends to the failure of the Amended Plan to fund fully the stormwater management plan. Petitioner has failed to prove to the exclusion of fair debate that consistency with Section 187.201(8)(b)12 and the State Plan requires the above-described funding.
Section 187.201(10)(b)10 is to: "Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation."
Petitioner argues that the Amended Plan is not consistent with the State Plan due to the failure of the future land use map series to designate rare and unique habitats for densities and intensities that are suitable for the vegetative and habitat values of certain areas, especially the North Bonita Springs area.
As noted above in connection with the discussion of the 2010 overlay, the Plan Amendments do not directly reintroduce the issue of land use suitability. A timing device, the 2010 overlay is quantitatively oriented.
With the exception of the Density Reduction/Groundwater Resource designation, which tends to enhance suitability, nothing in the Plan Amendments directly raises the suitability issue.
Provisions contained in the Plan Amendments enhancing the coordination of future land use designations with valuable vegetative communities and, particularly, wildlife habitat are Objectives 77.10 and 77.11 and their policy clusters. These provisions have already been discussed. 42/
Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(10)(b)10.
Section 187.201(18)(b)3 is to: "Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents."
Petitioner objects in her proposed recommended order to the sufficiency of Objective 70.3, which requires that "new development pays at least 80% of the capital costs of public infrastructure directly attributable to that new development." Petitioner argues that Policy 2.3.2 is also insufficient because it merely requires that the "cost for the provision and expansion of services and facilities that benefit new development shall be borne primarily by those who benefit."
Objective 70.3 and Policy 2.3.2 were unchanged by the Plan Amendments.
Section 187.201(16)(b)2 is to: "Develop 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 Amended Plan is no model of urban containment. Choosing a less regulatory approach to land use planning, although involving considerably more intervention than has traditionally prevailed, Lee County has repeatedly and unconvincingly argued in the Revised Data and Analysis that various conventional planning strategies are unsuitable for Lee County.
Some planning alternatives proffered by Lee County have failed to achieve consistency with the growth management law. Some planning alternatives have achieved consistency, and some planning alternatives have been spared review by the focus of the present recommended order on the Plan Amendments and Revised Data and Analysis and the focus of the recommended order in DOAH Case No. 89-1843GM on the settlement agreement.
It would be a daunting task to try to determine the effect of the Amended Plan upon urban sprawl. Without the density allocation ratio, it is an impossible task. If the ratio were relatively high, provisions of the Amended Plan would have to bear a greater burden in ensuring efficiency in the use of land and provision of public facilities and the protection of natural resources and agriculture. Without a density allocation ratio, relevant provisions of the Amended Plan cannot be adequately evaluated in terms of their relationship to urban sprawl.
It suffices for the purpose of determining consistency with the State Plan that the Plan Amendments assigned the Density Reduction/Groundwater Resource designation to thousands of acres of land in Lee County and, by so doing, achieved a significant separation between urban and rural uses. For this reason, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the State Plan in terms of separating urban and rural uses.
CONCLUSIONS OF LAW
Jurisdiction, Standing, Standard of Proof, and Meaning of "In Compliance"
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) 163.3184(9), Florida Statutes. (All references to Sections or their corresponding Chapters are to Florida Statutes. All references to Rules or their corresponding Chapters are to the Florida Administrative Code.)
However, the subject-matter jurisdiction in this case is limited to the Plan Amendments and Revised Data and Analysis. Petitioner failed to challenge the Plan, and DCA issued a notice of intent limited to the Plan Amendments. Thus, Petitioner is restricted, under Section 163.3184(9), to challenging the Plan Amendments and Revised Data and Analysis.
The Plan Amendments and Revised Data and Analysis must, where necessary, be considered in the context of the Amended Plan and Data and Analysis. But provisions of the Amended Plan or Data and Analysis not amended by the Plan Amendments or revised by the Revised Data and Analysis may not be the subject of a determination of inconsistency with various criteria of the growth management law.
There is no jurisdiction over Issue 1. Issue 1 addresses the sufficiency of the data and analysis in terms of the inclusion of an inventory and analysis of private potable water suppliers. No Plan Amendment or Revised Data and Analysis implicates an inventory and analysis of private potable water suppliers.
The Revised Data and Analysis discuss four hydrologic studies or reports that have been conducted in the Lee County area between 1981 and 1988. The focus of these studies includes general matters involving potable water aquifers and their recharge, as well as the limitations on these resources. Although one or more of these studies or reports may in fact inventory potable water suppliers, their focus is more general. The Revised Data and Analysis summarize these investigations for the broader purpose of supporting the new Density Reduction/Groundwater Resource designation that was introduced by the Plan Amendments. Under the circumstances, Petitioner may not use this discussion as a basis for challenging perceived deficiencies in the Data and Analysis' coverage of such specific matters as the utilities presently producing potable water.
There is limited jurisdiction over Issue 2. Issue 2 alleges that the Amended Plan is not consistent with the criterion of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of various impacts of development on unique wildlife habitat. The only aspect of the
Revised Data and Analysis concerning these matters is the discussion of the habitat of wood storks, Florida panthers, and black bears. Jurisdiction over Issue 2 is thus limited to the adequacy of the data and analysis concerning the habitat of these three animals.
There is jurisdiction over Issues 3 and 4, which question whether the future land use map series is supported by data and analysis. The addition of the 2010 overlay substantially revised the future land use map in the Plan. However, the proper focus of the findings and conclusions concerning these Issues is upon the 2010 overlay and other relevant amendments, as opposed to those portions of the future land use map series and Amended Plan that were unchanged by the Plan Amendments.
There is no jurisdiction over Issue 5. Issue 5 alleges that the amended future land use map series is inconsistent with the criterion of the identification of certain potable water wellfields and their cones of influence. Map 8 of the Amended Plan shows wellfields and their cones of influence. Indicating that the information is "as adopted [on] January 31, 1989," Map 8 may omit lower-volume wellfields, but nothing in the Plan Amendments, including the 2010 overlay, revisits the issue of wellfields so as to justify the challenge to the amended future land use series contained in Issue 5.
There is limited jurisdiction over Issue 6. Issue 6 alleges that the Amended Plan is inconsistent with the criterion of a policy identifying techniques for limiting specific and cumulative impacts of development and redevelopment upon wildlife habitat. For the reasons discussed in connection with Issue 2, jurisdiction over Issue 6 is limited to the habitat of wood storks, Florida panthers, and black bears.
There is no jurisdiction over Issue 7. Issue 7 alleges that the Amended Plan, including the amended future land use map series, is inconsistent with the criterion of an objective directing population concentrations away from coastal high hazard areas. The Plan Amendments did not generally increase densities anywhere in Lee County. Over thousands of acres designated Density Reduction/Groundwater Resource, the Plan Amendments actually reduced densities. Moreover, the impact of the 2010 overlay, especially Map 17, was to reduce densities throughout the County.
There is jurisdiction over Issues 8 and 9. Issue 8 addresses the Traffic District Program, which is created by the Plan Amendments. Issue 9 addresses explicitly the Plan Amendments concerning transportation.
There is no jurisdiction over Issue 10. Issue 10 alleges that the Amended Plan is inconsistent with the criterion of a policy demonstrating coordination with the Charlotte Harbor Management Plan. Nothing in the Plan Amendments directly addresses the Charlotte Harbor Management Plan.
There is limited jurisdiction over Issue 11. Issue 11 alleges that the Amended Plan is inconsistent with the criterion of two planning timeframes. Jurisdiction over Issue 11 is limited to the 20-year timeframe established by the 2010 overlay.
There is limited jurisdiction over Issue 12. Issue 12 attacks the sufficiency of various provisions of the Amended Plan. Jurisdiction extends over those provisions that are Plan Amendments, but not over those provisions that have been carried over, unchanged, from the Plan. Therefore, there is jurisdiction concerning the sufficiency of Policies 15.2.2, 38.1.6, 38.4.1, and
38.4.3. There is limited jurisdiction over Policy 2.2.2 to the extent of the changes made to this policy--primarily the third factor and the flush language at the end--by the Plan Amendments. There is no jurisdiction over the remaining provisions of the Amended Plan, none of which was changed by the Plan Amendments. 43/
There is limited jurisdiction over Issue 13, which alleges internal inconsistency between various provisions of the Amended Plan. Relevant provisions of the Amended Plan changed by the Plan Amendments have been identified above.
There is limited jurisdiction over Issue 14. Issue 14 alleges that the Amended Plan is inconsistent with the Charlotte Harbor Management Plan. Nothing in the Plan Amendments directly addresses the matters argued by Petitioner except with respect to Objectives 5 and 11 of the Charlotte Harbor Management Plan regarding stormwater management and protection of the habitats of listed species. There is thus jurisdiction over the question of the consistency of the Plan Amendments with Objectives 5 and 11 of the Charlotte Harbor Management Plan, with the latter necessarily construed as a whole.
There is jurisdiction over Issue 15. Issue 15 alleges that the Amended Plan is inconsistent with the Regional Plan with respect to the reduction of vacant platted lots. The 2010 overlay directly affects this issue.
There is limited jurisdiction over Issue 16. Issue 16 alleges that the Amended Plan is inconsistent with the State Plan with respect to several matters. Jurisdiction exists as to the stormwater and urban sprawl issues for the reasons set forth in connection with Objective 5 of the Charlotte Harbor Management Plan and the Regional Plan, respectively. There is also jurisdiction over the allegations regarding the adequacy of the protection of water recharge areas due to the addition of the Density Reduction/Groundwater Resource designation and related Plan Amendments. There is limited jurisdiction over the allegations regarding the adequacy of the protection of rare and unique habitats. There is no jurisdiction over the allegations regarding the allocation of the cost of new public facilities between new and existing development.
Standing
Participation as a party in a Section 163.3184(9) or (10) proceeding is limited to "affected persons" and DCA. In relevant part, Section 163.3184(1)(a) provides:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.
Petitioner has standing.
Standard of Proof
An affected person in the Section 163.3184(9) proceeding must prove to the exclusion of fair debate that a plan or plan amendment is not consistent with the growth management law.
The Act does not define what is meant by "fairly debatable." In zoning cases, "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing" (citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987). The requirement of reasonableness means that the persons reaching different conclusions must be informed by relevant facts and law and are capable of analyzing this information in order to reach a logical conclusion based exclusively on the applicable facts and law.
Meaning of "In Compliance"
Pursuant to Section 163.3184(1)(b), Petitioner is required to prove that the Plan Amendments or Revised Data and Analysis are not "in compliance." Under Section 163.3184(1)(b): "'In compliance'" 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 . . ., where such rule is not inconsistent with chapter 163, part II."
The Act defines what is meant by consistency with the state and regional plans. However, the Act does not define what is meant by internal consistency or consistency with the other criteria of the Act and Chapter 9J-5.
Section 163.3177(10)(a) defines "consistency" solely for the purpose of determining whether a plan is consistent with the state and regional plans. For these consistency determinations, a plan is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan . . .." Id.
Section 163.3177(2) describes internal consistency as "coordination" among the several elements. Section 163.3177(9)(b) states that internal consistency also means that the elements are "related" to each other.
The statutory definition of consistency with state and regional plans must be modified when applied to questions of internal consistency. The "not in conflict with" portion of the definition is suitable. A policy in the future land use element that conflicts with a policy in the conservation element typically results in internal inconsistency.
However, the remainder of the statutory definition is not applicable to internal consistency determinations. There is no reason to insist that all objectives and policies of a plan "take action in the direction of realizing" the other objectives and policies of the same plan. Unlike the situation in which provisions of different plans are compared, an objective in the conservation element of a plan should not be required to take action in the direction of realizing an objective in the public facilities element of the same plan. Without furthering each other, the objectives in the conservation and
public facility elements may each pursue their respective goals. The meaningful question is whether the two objectives are in conflict with each other; if not, they are coordinated, related, and consistent.
One approach to determining consistency with the other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria" 44/ language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, a plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, a plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the "consistency" approach would permit a finding of consistency if a plan as a whole were not in conflict with, and took action in the direction of, realizing the criteria unsatisfied by the plan. This approach would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from ... adopting . . . a ... plan which is more . .
. strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be "consistent with the requirements" of Sections 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b). Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5, and not with any "minimum criteria." If truly "minimum criteria," they should be "satisfied" or "met," but these terms are not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 with the exception of concurrency. 45/
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether a plan is consistent with the criteria requiring certain detailed data must, according to Rule 9J-5.002(1), be based on such factors as the government's "complexity, size, [and] growth rate." Expressly approving this rule, Section 163.3177(10)(i) provides:
[DCA] shall take into account the factors delineated in rule 9J-5.002(2) . . . as it
... applies the rule in specific situations with regard to the detail of the data and analysis required.
The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration 46/ and a legislative directive to DCA regarding rulemaking. 47/
Adopting the "consistency" approach may emphasize flexibility over predictability. However, the Act tacitly endorses similar flexibility in the determinations of consistency with the state and regional plans.
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J-5, must be examined to determine whether, among other things, the plan conflicts with the unsatisfied criterion, the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
Data and Analysis (Issues 2, 3, and 4)
General
Rule 9J-5.005(2)(a) provides: "All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data." Rule 9J- 5.006(2)(c) provides:
An 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.
Rule 9J-5.005(2)(a) also sets forth the criterion that "the data [shall be] collected and applied in a professionally acceptable manner."
Stating the general criterion of supporting data and analysis at Section 163.3177(8) 48/ and (1), 49/ the Act adds:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. [DCA] may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that [DCA] may evaluate the application of a methodology utilized in data collection or whether a particular
methodology is professionally accepted. However, [DCA] shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
Section 163.3177(10)(e).
Corresponding to provisions of the Act, Rule 9J- 5.005(2)(b) and (c) addresses the quality of data and the transmission of the data to DCA:
Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
Primary data sources such as United States Census reports, other government data documents, local computerized data, and original map sheets used to compile required maps need not be printed in their entirety within either the support documents or the comprehensive plan. Summaries of support documents shall be submitted to [DCA] along with the comprehensive plan at the time of compliance review to aid in [DCA's] determination of compliance and consistency. As a local alternative to providing data and analysis summaries, complete data and analyses sufficient to support the comprehensive plan may be submitted to [DCA] at the time of compliance review. [DCA] may require submission of the complete or more detailed data or analyses during its compliance review if, in the opinion of [DCA], the summaries are insufficient to determine compliance or consistency of the plan.
Any interpretation of the preceding provisions must take into account specific criteria of the Act and Chapter 9J-5 that require individual items of data or analysis. 50/ Important criterion in this case are contained in Section 163.3177(6)(a), which requires that the future land use element be:
based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; and the need for redevelopment, including the renewal of blighted areas and elimination of nonconforming uses which are inconsistent with the character of the community.
The meaning of the first clause of Section 163.3177(10)(e) does not render the above-described provisions unenforceable in plan litigation, nor limit to DCA the enforcement of such provisions. The Act and Chapter 9J-5 clearly require specific data and analysis. The Act and Chapter 9J-5 clearly require that the plan generally be supported by data and analysis. The second clause of Section 163.3177(10)(e) restates the latter requirement that the plan must be "clearly based" on "appropriate data."
The proper interpretation of the first and second clauses of Section 1634.3177(10)(e) is that, with one exception, the primary consistency determination involving data and analysis is whether plan provisions are supported by data and analysis. The exception is that other consistency determinations may also involve data and analysis if the Act or Chapter 9J-5 establishes criteria of specific data or analysis. Examples of the exception are noted above, such as the requirement of supporting data and analysis regarding the amount of land needed to accommodate population growth, as set forth by Section 163.3177(6)(a). Apart from such important exceptions, data and analysis are not like operative plan provisions, which are subject to a wide range of specific and general consistency criteria, such as internal consistency, consistency with the state and regional plans, and economic feasibility.
The first clause of Section 163.3177(10)(e) reinforces the principle that, except for criteria of specific items of data or analysis, the focus of plan litigation involving data and analysis is on the operative provisions of the plan, not the data and analysis. If the operative provisions, such as the goals, objectives, policies, and future land use map, are supported by appropriate data and analysis, the general criterion is satisfied.
Chapter 9J-5 states that the plan must be supported by the "best available" data. The effect of the first clause of Section 163.3177(10)(e) is to acknowledge that any litigation concerning whether the data are the best available data must be tempered by the general principle that the data are not properly the subject of the compliance review process.
Rule 9J-5.005(2)(a) describes the process under which DCA reviews each plan or plan amendment to determine the consistency with the criteria involving data. Rule 9J-5.005(2)(d) implies that data should be submitted with the plan or plan amendment. Rule 9J-5.005(2)(d) requires the local government to submit summaries of support documents with the plan or plan amendment at the time of compliance review "to aid in [DCA's] determination of compliance and
consistency." As an alternative, "complete data and analyses sufficient to support the comprehensive plan may be submitted to [DCA] at the time of compliance review." However, Rule 9J-5.005(2)(d) provides that DCA "may require submission of the complete or more detailed data or analyses during its compliance review if, in the opinion of [DCA], the summaries are insufficient to determine compliance or consistency of the plan."
Sufficiency of Data and Analysis (Issue 2)
Rule 9J-5.012(2)(a) and (b) provides that a plan "shall be based upon the following data and analyses requirements pursuant to Subsection 9J- 5.005(2)":
Existing land uses in the coastal area shall be inventoried. Conflicts among shoreline uses shall be analyzed and the need for water-dependent and water-related development sites shall be estimated. Any areas in need of redevelopment shall be identified. An analysis of the economic base of the coastal area based on the future land use element shall be included. A map or map series showing existing land uses and detailing existing water-dependent and water- related uses shall be prepared.
Inventories and analyses of the effect of the future land uses as required to be shown on the future land use map or map series on the natural resources in the coastal area shall be prepared including:
vegetative cover, including wetlands; areas subject to coastal flooding; wildlife habitats; and living marine resources. Maps shall be prepared of vegetative cover, wildlife habitat, areas subject to coastal flooding, and other areas of special concern to local government.
As to Issue 2, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the Revised Data and Analysis are inconsistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment on unique wildlife habitat.
Supporting Data and Analysis (Issues 3 and 4)
As to Issues 3 and 4, for the reasons set forth in the Findings of Fact, Petitioner has proved to the exclusion of fair debate that the densities designated on Maps 1, 16, and 17 of the amended future land use map series are inconsistent with the criterion of supporting data and analysis. The reduction, by an undisclosed amount, of the maximum population that can be accommodated by the amended future land use map series to reflect historic densities precludes a finding that the designated densities on the amended future land use map series are supported by data and analysis.
As to Issues 3 and 4, for the reasons set forth in the Findings of Fact, Petitioner has proved to the exclusion of fair debate that Maps 1, 16, and
17 are inconsistent with the criterion of supporting data and analysis in terms of the updating of the baseline existing land use data, by a professionally acceptable methodology, to reflect additional uses authorized within a subdistrict pursuant to the 2010 overlay. The failure of the Amended Plan or Data and Analysis to require that existing land uses be updated by means reasonably calculated to assure that new authorized uses will be reliably tracked as they are authorized deprives all of the designations on the amended future land use map series of support from data and analysis. Without reasonable certainty as to the means by which newly authorized land uses will update the baseline existing land uses, the 2010 overlay is meaningless.
As to Issues 3 and 4, for the reasons set forth in the Findings of Fact, Petitioner has proved to the exclusion of fair debate that Maps 1, 16, and
17 are inconsistent with the criterion of supporting data and analysis in terms of the disclosure of the baseline existing land use data on which the 2010 overlay is based. Conventional existing land use maps showing vacant acreage do not support the unique demands of the 2010 overlay for data broken down into individual planning subdistricts. Although Lee County possesses such baseline data, the failure of the Amended Plan or Data and Analysis to state such crucial data deprives all of the designations on the amended future land use map series of support from data and analysis. Regardless whether a local government is required to identify data and analysis in the plan, submit data and analysis to DCA, or provide such data and analysis at the final hearing, the vital role of these baseline data demands that they be stated in the Data and Analysis (or Amended Plan, if Lee County prefers). Without reasonable certainty as to the starting point in terms of existing land uses, the 2010 overlay is meaningless.
Miscellaneous Minimum Criteria (Issues 6, 8, 9, 11, and 12)
Rule 9J-5.012(3)(c)1 requires a policy identifying regulatory or management techniques for "[l]imiting the specific impacts and cumulative impacts of development or redevelopment upon . . . wildlife habitat "
As to Issue 6, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan and Plan Amendments are inconsistent with the criterion of a policy identifying regulatory or management techniques for limiting specific and cumulative impacts of development or redevelopment upon wildlife habitat.
Section 163.3177(3)(a)1 and 3 provide:
The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth:
A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to
implement the comprehensive plan. The components shall cover at least a 5-year period.
* * *
3. Standard to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service.
Section 163.3177(10)(h) provides:
It is the intent of the Legislature that public facilities and services needed to support development shall be available concurrent with the impacts of such development. In meeting this intent, public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that development are available concurrent with the impacts of the development. The public facilities and services, unless already available, are to be consistent with the capital improvements element of the local comprehensive plan as required by paragraph (3)(a) or guaranteed in an enforceable development agreement. This shall include development agreements pursuant to chapter
163 or in an agreement or a development order issued pursuant to chapter 380. Nothing herein shall be construed to require a local government to address services in its capital improvements plan or to limit a local government's ability to address any service in its capital improvements plan that it deems necessary.
As to Issue 8, for the reasons set forth in the Findings of Fact, Petitioner has proved to the exclusion of fair debate that the Plan Amendments are inconsistent with the criteria of setting level of service standards for nonconstrained roads, ensuring concurrency for nonconstrained roads, and correcting infrastructure deficiencies concerning nonconstrained roads. The Traffic District Program allows Lee County to avoid addressing the problems of overcrowded roads to the extent required by the growth management law.
Section 163.3177(2) requires that the "comprehensive plan shall be economically feasible."
As to Issue 9, for the reasons set forth in the Findings of Fact and subject to the findings and conclusions concerning Issue 8, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the criterion of financial feasibility.
Rule 9J-5.005(4) provides: "Each local government comprehensive plan shall include at least two planning periods: one for at least the first five- year period subsequent to the plan's adoption and one for at least an overall ten-year period."
As to Issue 11, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the criterion of two planning timeframes.
Rule 9J-5.005(6) provides in part: "the comprehensive plan . . . shall describe how the local government's programs, activities, and land development regulations will be initiated, modified or continued to implement the comprehensive plan in a consistent manner." Rule 9J-5.003(61) defines an "objective" as: "a specific, measurable, intermediate end that is achievable and marks progress toward a goal." Rule 9J-5.003(68) defines a "policy" as: "the way in which programs and activities are conducted to achieve an identified goal."
As to Issue 12, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the cited provisions of the Plan Amendments are inconsistent with the criteria set forth in the preceding paragraph.
Rule 9J-5.005(5) requires that a plan be internally consistent.
As to Issue 13, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is internally inconsistent.
Consistency with Charlotte Harbor Management Plan (Issue 14)
Section 163.3178(2) provides: "Each coastal management element . . . shall be . . . consistent with coastal resource plans prepared and adopted pursuant to general or special law "
The Charlotte Harbor Management Plan is a coastal resource plan applicable to Lee County that was prepared and adopted pursuant to general or special law.
Just as is the case with Regional and State Plans, the Charlotte Harbor Management Plan should be construed as a whole when making consistency determinations.
As to Issue 14, for the reasons set forth in the Findings of Fact, Petitioner has proved to the exclusion of fair debate that the interim stormwater level of service standard set forth in Policy 38.3.1.B is inconsistent with Objective 5 of the Charlotte Harbor Management Plan and the entire plan, construed as a whole, due to Policy 38.3.1.B's omission of hydroperiod, basin, and quality performance standards; addition of a qualifying storm even; and exclusion of redevelopment.
As to remainder of Issue 14 over which jurisdiction exists, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the other Plan Amendments are inconsistent with the Charlotte Harbor Management Plan.
Consistency with Regional Plan (Issue 15)
As to Issue 15, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the Regional Plan construed as a whole.
Consistency with State Plan (Issue 16)
As to Issue 16, for the reasons set forth in the Findings of Fact, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the State Plan construed as a whole.
Based on the foregoing, it is hereby
RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for entry of a final order determining that the Plan Amendments are not in compliance for the reasons set forth above.
ENTERED on January 27, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings on January 27, 1993.
NOTE: In the ACCESS document, language added to the policy
is within the <<>>; deleted language is within the [[]].
ENDNOTES
1/ | Prehearing | Stipulation | Issue | 6. |
2/ | Prehearing | Stipulation | Issue | 7. |
3/ | Prehearing | Stipulation | Issue | 3. |
4/ | Prehearing | Stipulation | Issue | 1. |
5/ | Prehearing | Stipulation | Issue | 6. |
6/ | Prehearing | Stipulation | Issue | 7. |
7/ | Prehearing | Stipulation | Issue | 2. |
8/ Prehearing Stipulation Issue 10. 9/ Prehearing Stipulation Issue 15. 10/ Prehearing Stipulation Issue 4. 11/ Prehearing Stipulation Issue 5.
12/ Prehearing Stipulation Issue 11 and, as to Policies 2.2.2, 27.2.1., and 27.2.2, rulings at hearing granting a motion to amend. Tr., p. 914.
13/ Prehearing Stipulation Issue 11 alleges that Policy 2.8.1 is vague. Petitioner abandons this claim in her proposed recommended order at p. 62.
14/ Although not previously alleged in the Prehearing Stipulation or in a motion to amend at hearing, Petitioner, at p. 63 of her proposed recommended order, "abandons" the claim that Policy 38.1.5 is vague.
15/ Prehearing Stipulation Issue 11 alleges that Policy 77.2.6 is vague. Petitioner abandons this claim in her proposed recommended order at p. 68.
16/ Prehearing Stipulation Issue 12 and, as to consistency of future land use map with Policy 74.4.4, ruling at hearing granting motion to amend.
17/ Prehearing Stipulation Issue 12 also alleges that the following provisions are internally inconsistent: Goal 13 and Standard 13.1; Objective 16.5 and Policy 16.5.1; Objective 70.3 and Policy 2.3.2; and Objective 2.3 and the amended future land use map series. Petitioner abandons these claims in her proposed recommended order at p. 74.
18/ Prehearing Stipulation Issue 14 alleges: Whether, in terms of floodplain protection, protection of rare and unique vegetative
communities and wildlife habitat, protection of wildlife corridors, protection of potable water supply wells, and the siting of marinas, the amended future land use map is consistent with the criterion that it reflects the goals, objectives, and policies of the amended plan, as required by Rule 9J- 5.005(5).
In her proposed recommended order at p. 80, Petitioner stipulates that this issue is contained in Prehearing Issue 13.
(Petitioner abandoned Prehearing Stipulation Issue 13 at the hearing and in her proposed recommended order at p. 79.)
19/ Prehearing Stipulation Issue 4.
20/ In her proposed recommended order at p. 50, Petitioner abandons Prehearing Stipulation Issue 4.c, which involves the consideration of stormwater maintenance and operation.
21/ In her proposed recommended order at p. 50, Petitioner abandons Prehearing Stipulation Issue 4.f, which involves the assessment of cumulative wetland impacts of small scale projects.
22/ Prehearing Stipulation Issue 9. 23/ Prehearing Stipulation Issue 8.
24/ There are actually two sets of exhibits and transcripts. The claims of Ft. Myers concerning the original Lee County comprehensive plan were heard in October, 1989, and a partial recommended order was submitted to the Administration Commission in April, 1990. Following a remand from the Administration Commission, the transcript and exhibits in the Ft. Myers challenge have been incorporated into the present record, which also includes a transcript and exhibits from the hearing conducted in May and June, 1992, on the remainder of the claims in DOAH Case No. 89-1843GM, as well as the claims in DOAH Case Nos. 90-7791GM and 90-7792GM.
The Ft. Myers claims are covered in the recommended order submitted to the Administration Commission January 7, 1993, in DOAH Case Nos. 89-1843GM and 90- 7792GM.
Lee County introduced exhibits in both evidentiary hearings. Lee County exhibits introduced during the October, 1989, hearing shall be identified as "County Exhibit x."
25/ Where it is unclear from the context whether a quoted provision is part of the Plan or Plan Amendments, deleted language shall be stricken through and added language shall be underlined. Underlined language in the Plan or Plan Amendments shall be boldfaced.
26/ Additionally, Petitioner argues that the Amended Plan does not define the coastal high hazard area; the definition is relegated to the Data and Analysis. Nothing in the growth management law requires that the definition of a coastal high hazard area be included in the operative provisions of a plan. Rule 9J- 5.5012(2)(e)(3) requires the identification of the coastal high hazard area.
Both the text of the subsection and its placement within the rule make it clear that this information is required only in the data and analysis. In any event, this issue is directed toward the Plan and Original Data and Analysis, not the Plan Amendments and Revised Data and Analysis.
27/ The Data and Analysis accompanying the future land use element in the Plan are somewhat unclear as to whether various population estimates and projections pertain to unincorporated Lee County or Lee County in its entirety, including the three municipalities of Ft. Myers, Cape Coral, and Sanibel. However, the Data and Analysis accompanying the housing element clearly break down area population figures as follows:
Area | 1980 | 1987 | 2010 |
Uninc. Lee County | 136,610 | 196,101 | 413,498 |
3 cities | 103,827 | 97,613 | 165,202 |
Total | 240,437 | 293,714 | 578,700 |
The population data | from the | Housing Element | indicate, for example, that |
240,037 persons lived in Lee County, including the municipalities, in 1987. Figure 5 of the Future Land Use Element Original Data and Analysis (County Exhibit 1.B, p. V-12) indicates that the total permanent and seasonal population in Lee County was 238,194 persons. Although the Figure 5 populations become increasingly larger than the Housing Element figures, the indication is that the Figure 5 numbers represent Lee County in its entirely.
The Future Land Use Element Original Data and Analysis expressly identify Figure 2 as reflecting the University of Florida's high-range population projections through 2020 for Lee County, including the three cities. Figure 2 also shows projected seasonal populations based on 18% increases in permanent populations. According to Figure 2, the seasonal population of Lee County in
its entirety is almost 400,000 persons in 1990 and about 780,000 persons in 2010. Projections after 2020 are simply straightline extrapolations of the 2010- 2020 growth rate.
Further evidence of the fact that population figures in the Future Land Use Element include Cape Coral, Ft. Myers, and Sanibel is found in the breakdown of the permanent and seasonal populations in Figure 5 by planning districts in Table 11. There are 15 planning districts, which, according to Figure 1, cover the entire County, including Ft. Myers, Cape Coral, and Sanibel. However, as the Future Land Use Element Original Data and Analysis indicate, data concerning the 15 planning districts may be limited to unincorporated Lee County, even though the districts themselves include parts of the three cities.
See also Future Land Use Element Original Data and Analysis p. III-2 et seq. (discussion of Tables 3 and 4 with respect to unincorporated County with note that Table 5 adds back in the figures for the 3 cities).
28/ The assumption concerning the enhanced capacity of the state road network, at least with respect to backlogged roads through 1994 under the Traffic District Program, is cast into doubt elsewhere in the Revised Data and Analysis, which disclose that the mileage of backlogged state road segments will increase substantially between 1990 and 1994 while the Traffic District Program is in operation. See text accompanying Endnote 37.
29/ The Revised Data and Analysis state that the 2010 overlay and related text required the revision or replacement of various parts of the Original Data and Analysis. The sections revised or replaced are Section III (Evaluation and Appraisal of Currently Adopted Future Land Use Map), which was "substantially modified to reflect the future land use map amendments made in 1989 and to reflect several refinements in the methodology"; Section V(D) (Analysis--The Future Land Use Map), which as been "revised to include discussion of the concept of the . . . 2010 overlay"; Section V(E) (Analysis--Population Projections), for which Table 11 (projected permanent and seasonal populations at five-year intervals) has been "modified to reflect the new assignments of 2010 population"; and Section V(G) (Future Land Use Needs), which was "completely revised to reflect the underlying methodology and results of the development of the . . . 2010 overlay and includes an explanation of the origin of the residential, commercial, industrial, recreation, agricultural, educational, public facilities, and vacant lands projections." Joint Exhibit 10.b, page 5.
30/ This section of the recommended order addresses Petitioner's challenge that the residential designations are not supported by data and analysis because the densities are excessive. Petitioner has also challenged the commercial and industrial designations as unsupported by the data and analysis.
However, the amount of acreage allotted to future commercial and industrial uses by the 2010 overlay is supported by the Data and Analysis. The Revised Data and Analysis include summaries of studies concerning Lee County's needs for both types of development through 2010. Joint Exhibit 10.b, pp. 55-61. The identified needs are reasonable and accurately expressed in Map 17. As noted below, though, deficiencies in the baseline existing land use data and updating of such data deprive all designations, including for commercial and industrial uses, from support from data and analysis.
31/ For instance, Map 17 for planning subdistrict 707 and Table 3 (V G) disclose the following 2010 acreage caps: residential-- 819.85 acres (including
732.65 acres designated Outlying Suburban, 85.41 acres designated New Community, and 1.79 acres designated Rural); commercial--170.77 acres; parks and public-- 1330 acres; active agriculture--19 acres; conservation--1342.8 acres; passive
agriculture--226.76 acres; and vacant--231.66 acres. These acreages total 4140.84 acres and are entirely in the unincorporated County.
By contrast, Table 2 (III C) shows for planning district 707 the following acreages, which according to Table 2 (III C) are also for 2010: Outlying Suburban--2315 acres; Interchange Areas (General)--154 acres; New Community--
313 acres; Rural--17 acres; and Resource Protection Areas and Transition Zones--1343 acres. These acreages total 4141 acres and are entirely in the unincorporated County. Obviously, the Resource Protection Areas and Transition
Zones on Table 2 (III C) correspond to conservation on Table 3 (V G). The Rural designation on Table 2 (III C) may correspond to the active agriculture category on Table 3 (V G), although Table 3 (V G) expressly includes Rural as a residential category. But in any event the Outlying Suburban and New Community designations, which total 2628 acres on Table 2 (III C), do not correspond to the category on Table 3 (V G) of residential, which contains 819.85 acres (including 732.65 acres designated Outlying Suburban, 85.41 acres designated New Community, and 1.79 acres designated Rural).
The differences between Tables 1 (III C) and 2 (III C), on the one hand, and Map 17 and Table 3 (V G), on the other hand, are not limited to planning subdistrict 707. According to Map 17 and Table 3 (V G), subdistrict 708 is capped at 290.11 acres of residential consisting of 258.41 acres of New Community and 31.7 acres of Rural. Subdistrict 709 is capped at 1207.72 acres of residential consisting of 1106.96 of New Community and 100.76 of Groundwater Resource. According to Table 2 (III C), subdistrict 708 has 336 acres designated New Community and 17 acres designated Rural, and subdistrict 709 has 1473 acres designated New Community and 986 acres designated Groundwater Resource. Both subdistricts are entirely in unincorporated Lee County.
Subdistrict 1202 contains 1311 acres designated Urban Community, 134 acres designated Outlying Suburban, and 2593 acres designated Rural, according to Table 2 (III C). The remaining acreages contained within subdistrict 1202 are Public Facilities--259 acres; Outer Islands--23 acres; and Resource Protection Areas and Transition Zones--7200 acres. Table 3 (V G) corresponds to Table 2 (III C) only with respect to the conservation category, which is 7200.35 acres. According to Table 3 (V G), the 2010 acreage caps are as follows: Urban Community--384.02 acres, not 1311 acres; Outlying Suburban--41.52 acres, not
134 acres; Rural--406.96 acres, not 2593 acres; Outer Islands--2.39 acres, not
23 acres; Commercial--37.09 acres, not 0 acres; Industrial--60 acres, not 0 acres; Parks and Public--307.46 acres, not 259 acres; active agriculture--
498.05 acres, not 0 acres; passive agriculture--53.89 acres, not 0 acres; and vacant--2528.11 acres, not 0 acres.
32/ For instance, Intensive Development is assigned an assumed density of 7.5:1 but is assigned in the Amended Plan a maximum density of 14:1; Central Urban is assigned an assumed density of 6.5:1 but is assigned in the Amended Plan a maximum density of 10:1; Urban Community is assigned an assumed density of 3.5:1 but is assigned in the Amended Plan a maximum density of 6:1; Suburban is assigned an assumed density of 3.5:1 but is assigned in the Amended Plan a maximum density of 6:1; Outlying Suburban is assigned an assumed density of 2.5:1 but is assigned in the Amended Plan a maximum density of 3:1; New Community is assigned an assumed density of 4.6:1 but is assigned in the Amended Plan a maximum density of 6:1; Rural is assigned an assumed density of 0.8:1 but is assigned in the Amended Plan a maximum density of 1:1; Outer Islands is assigned an assumed density of 0.3:1 but is assigned in the Amended Plan a maximum density of 1:1; and Groundwater Resource is assigned an assumed density of 0.1:1 and is assigned in the Amended Plan the same density.
33/ As noted in the preceding Endnote, the Revised Data and Analysis disclose the extent of the reduction in terms of densities. But the total population that can be accommodated by the amended future land use series cannot be determined without the disclosure of the amount of vacant land broken down into individual planning subdistricts.
34/ According to the Original Data and Analysis, the 1984 comprehensive plan's "basic planning philosophy" was the "Urban Service Area concept." County Exhibit 1.B, Future Land Use Element Data and Analysis, page II-1. The 1984 plan added a future land use map to "give specific geographic guidance to zoning, development regulations, capital improvements programming, and other tools to carry out the plan." Id. at p. I-1. Like Map 1, the future land use map in the 1984 plan accommodated residential development for populations projected through 2058. However, even the Original Data and Analysis concede that "this result [sufficient densities to accommodate growth through 2058] indicates the need to refine the Urban Services Area concept somewhat because it is not economically possible for the county to provide services to all areas within the plan's basic horizon, which is the year 2010." Id.
35/ Although the possibility exists that they were derived based on the same traffic data as the updated land use figures are, the record does not, to the exclusion of fair debate, preclude the possibility that the 1987 figures were broken down into planning subdistricts without considerable extrapolation from traffic data and without regard to authorized uses not yet developed.
36/ All references to adopted level of service standards for roads are to minimum peak hour/peak season standards.
37/ All figures exclude road segments under the jurisdiction of any the three municipalities in Lee County.
38/ The provisions of the Amended Plan under Goal 77 are set forth in Paragraphs 16, 20, 21, and 24 above.
39/ Nothing in this finding is intended to question the reasonableness of the three exemptions provided in Policy 38.1.6 for individual residential structures, historic districts, and publicly sponsored projects within community redevelopment districts.
40/ Nothing in this finding is intended to question the reasonableness of the three exemptions provided in Policy 38.1.6 for individual residential structures, historic districts, and publicly sponsored projects within community redevelopment districts.
41/ Nothing in this finding is intended to question the reasonableness of the three exemptions provided in Policy 38.1.6 for individual residential structures, historic districts, and publicly sponsored projects within community redevelopment districts.
42/ Objective 77.10 and its policy cluster are set forth at Paragraph 16 above. Objective 77.11 and its policy cluster are set forth at Paragraph 20 above.
43/ Objective 104.1 is different in the Amended Plan than it was in the Plan. However, the change appears to have been the result of another amendment package because nothing in the Plan Amendments addresses Objective 104.1.
44/ The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.
45/ Rule 9J-5.0055 uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency.
46/ 163.3161(7).
47/ 163.3171(9).
48/ 163.3177(8) reads in its entirety:
All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved. Surveys and studies utilized in the preparation of the comprehensive plan shall not be deemed a part of the comprehensive
plan unless adopted as part of it. Copies of such studies, surveys, and supporting documents shall be made available to public inspection, and copies of such plans shall be made available to the public upon payment of reasonable charges for reproduction.
49/ 163.3177(1) states in its entirety:
The comprehensive plan shall consist of materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.
50/ Relevant to the present case, Section 163.3178(2) requires that coastal management elements be "based on studies, surveys, and data ...." The element must contain a "land use and inventory map of existing coastal uses," "analysis of the environmental, socioeconomic, and fiscal impact of development and redevelopment proposed in the future land use plan. . . on the natural and historic resources of the coast . . .," and "analysis of the effects of existing drainage systems and the impact of point source and nonpoint source pollution on estuarine water "
Section 163.3177(6)(c) requires the public facilities element to: describe the problems and needs and the
general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers ....
Section 163.3177(6)(d) requires local governments, in connection with the conservation element, to "assess their current, as well as projected, water needs and sources for a 10- year period."
APPENDIX
NOTE: All proposed findings of all parties not specifically ruled upon below are rejected as unnecessary. Due to the jurisdictional limitations imposed upon this case, many of the proposed findings are unnecessary because they are directed to issues arising under the Plan and Original Data and Analysis.
Treatment Accorded Proposed Findings of Petitioner
Adopted or adopted in substance: 61; 87; 93 (except to extent that historic densities are most accurate for land use planning purposes); 94 (to extent adopted in recommended order); 103; 113-14; 121; 134; 136; 142-46; 148;
150; 154 (except first sentence); 167 (first sentence); 168 (second; first sentence and findings regarding Policy 38.3.1.B); 169; 171 (first sentence);
172 (except last sentence); 174; 180-86; 200 (first sentence); 201; 203; 240; and 244-45 (first sentence).
Rejected as irrelevant: 62-85; 96-101; 104-05; 107-12; 115- 20; 122; 124-
27; 129-33; 137-41; 147; 149; 151; 155-62; 192-94 (citing Policy 2.2.1,
not 2.2.2); 195-99; and 205-38.
Rejected as legal argument: 102; 106; 123; 128; 135; 152- 53; 163 (first and second sentences); 164 (first and second sentences); 175-79; and 187-89.
Rejected as unsupported by the appropriate weight of the evidence: 86; 154 (first sentence); 163 (third sentence); 164 (third sentence); 165-66; 167 (except first sentence); 168 (first); 168 (second; except first sentence and findings regarding Policy 38.3.1.B); 170; 172 (last sentence); 173; 175;
190-91; 200 (second and third sentences); 202 and 204 (as to implication of
material vagueness); 239; 241-43; 245 (second sentence); 246-62 (as to asserted inconsistencies); and 263.
Rejected as subordinate: 171 (except first sentence). Treatment Accorded Proposed Findings of Lee County
Adopted or adopted in substance: 234-39; 74 (except last sentence); 75 (as long as the longer-term planning timeframe is supported by data and analysis); 76; 206 (to extent that the implementation action is not directed toward Lee County); 210; 66-67; 71-72; 136-39; 142-43 (except last sentence); 175 (to the extent that Petitioner failed to prove to the exclusion of fair debate inconsistency with the separation criterion); 176 (but not adequately); 181 (first and second sentences; although not as to implication that Lee County therefore is entitled to the full extent of the flexibility that it implicitly seeks in allocating densities, or, more to the point in this case, in determining whether the amended future land use map series is supported by data and analysis in terms of densities designated, baseline existing land use data, and the process by which existing land uses will be updated); 250 (first sentence); 252 (last sentence); 31-32; 150; 164-66; 256 (except to extent of assertion of effectiveness; as noted in the recommended order, the problem is not with the concept of the 2010 overlay, but with the absence of supporting data and analysis); 257-60 (to the extent of relevance based on jurisdiction); and 82-83 (except to extent of assertion that transportation improvements will reduce mileage of backlogged road segments).
Rejected as unsupported by the appropriate weight of the evidence: 74 (last sentence; regarding the assurance of a supply of land that is not excessive); 241; 149 (second sentence); 202 (although floodplain issue is irrelevant due to jurisdictional limitation); 205; 168 (except as to cutoff date for Traffic District Program); and 266.
Rejected as irrelevant: 242; 149 (first sentence); 203-04; 207-09; 246-47;
70; 73; 104-15; 140-41; 143 (last sentence); 181 (except as to the
separation criterion contained in the State Plan); 29-30; 33; 151-63; 166-
67; 254 (last sentence); 261-62 (covered elsewhere); and 264-65.
Rejected as legal argument: 148; 149 (third sentence); 68; 254 (first and second sentences); and 255.
Rejected as subordinate: 69; 177-80; and 34-48. Treatment Accorded Proposed Findings of DCA
Adopted or adopted in substance: 82-83 (except as to implication of supporting data and analysis for 2010 overlay or Map 1); 85; 89; and 90.
Rejected as irrelevant: 84; 86-87 (except to extent of findings concerning consistency with State Plan criterion of separation or urban and rural uses); and 88.
COPIES FURNISHED:
Linda Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Michael P. Donaldson Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Attorney Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A.
P.O. Box 6507
Tallahassee, Fl 32314-6507
Richard Grosso Legal Director
1000 Friends of Florida
P.O. Box 5948
Tallahassee, FL 32314-5948
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
BRENDA SHERIDAN,
Petitioner,
vs. DOAH CASE # 90-7791 GM
FINAL ORDER NO: DCA93-158-FOF-CP
LEE COUNTY and the DEPARTMENT OF COMMUNITY AFFAIRS,
Respondent.
/
ORDER
This case was consolidated at the Division of Administrative Hearings with two other cases regarding the Lee County comprehensive plan. The first case,
89-1843, was commenced when the Department of Community Affairs (the Department) found the original Lee County comprehensive plan not in compliance with Chapter 163, Part II (the Act), and Chapter 9J-5, F.A.C. At one point, case #89-1843 appeared to be resolved by a settlement agreement between the Department, Lee County, and certain intervenors who are not parties to this case. The settlement agreement called for Lee County to adopt certain amendments to its local comprehensive plan which were necessary to bring the comprehensive plan into compliance. Lee County did adopt amendments to its comprehensive plan, and the Department found these Plan Amendments to be in compliance, and consistent with the settlement agreement.
The second case, 90-7792, was initiated by two of the parties to the settlement agreement, who alleged that the Plan Amendments are not in compliance. In the Recommended Order for case #90-7792, the Hearing Officer concluded that the parties to the settlement agreement were bound by that agreement, and therefore were limited to challenging the consistency of the Plan Amendments with the settlement agreement. The Hearing Officer recommended that the Plan Amendments be found in compliance because the Plan Amendments adopted by Lee County complied with the settlement agreement. The Hearing Officer's Recommended Order in Case Nos. 89-1843 and 90-7792 was submitted to the Administration Commission pursuant to Sub-section 163.3184(10).
The Petitioner in this case (Sheridan) was not a party to case 89-1843 (challenging the original plan) or to the settlement agreement. Sheridan commenced the instant case and alleged that the Plan Amendments, and the whole comprehensive plan as amended, are not in compliance with the Act and Chapter 9J-5, F.A.C. In the Recommended Order for this case, the Hearing Officer concluded that Sheridan could not challenge the whole plan as amended, but was restricted to challenging the Plan Amendments. The Hearing Officer recommended that the Department determine that the Plan Amendments are not in compliance.
If the Department were to accept the recommendation, then pursuant to Sub- section 163.3184(9)(b), Fla. Stat., the Department is directed to submit the Recommended Order to the Administration Commission for entry of final agency action.
All three parties filed Exceptions to the Recommended Order. An oral argument on the Exceptions was heard on May 24, 1993. Section 120.57(1)(b)10., Fla. Stat. (1991), of the Administrative Procedure Act, provides, in part:
The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the
finding of fact were not based upon competent substantial evidence or that the proceedings
on which the findings were based did not comply with the essential requirements of law.
The Department can reject findings of fact in the Recommended Order only if those findings of fact are not supported by competent substantial evidence.
However, the Department may accept the findings of fact in the Recommended Order, and reject the Hearing Officers conclusions of law. Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982); Seiss v.
Department of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Jacob v. School Board of Lee County, 519 So.2d 1002 (Fla. 2d DCA 1988); Bustillo v. Department of Professional Regulation, 561 So.2d 610 (Fla. 3d DCA 1990)
The hearing officer's legal conclusions, as opposed to factual determinations, come to the agency with no equivalent presumption of correctness. Instead, the final decision as to the applicable law rests with the
agency, subject, of course, to judicial review. Manasota 88, Inc. v. Tremor, 545 So.2d 439,
441 (Fla. 2d DCA 1989) SHERIDAN'S EXCEPTIONS
First Exception. Sheridan alleges that, as a matter of fact and as a matter of law, the Hearing Officer erred in limiting Sheridan's challenge to the Plan Amendments, rather than to the whole plan as amended.
As to Sheridan's argument that, as a matter of fact she has challenged the whole plan, the Hearing Officer found that the Department's Notice of Intent was directed only to the Plan Amendments, not the whole plan. [FF 6.] Since there is competent substantial evidence to support the Hearing Officer's finding, the Department cannot reject that finding of fact.
Sheridan also contends that, as a matter of law, she must be permitted to challenge the entire plan as amended. This argument is based on the premise that Sheridan had no point of entry to challenge the original plan. Sheridan argues that, since the Department found the original plan not in compliance, she had no reason to intervene in case 89-1843. She further argues that, since the Department has found the Plan Amendments in compliance, this implies that the Department has changed its mind about the original plan. Sheridan concludes that she must be given an opportunity to challenge this new intended agency action.
Sheridan overlooks the fact that the Department's Notice of Intent to find the original plan not in compliance stated discrete issues. Implicitly, the Notice of Intent found the remainder of the original plan in compliance.
Sheridan did not intervene in the original Lee County comprehensive plan case. Sheridan was evidently satisfied with the objections raised by the Department's Notice of Intent. If Sheridan were not satisfied with the issues raised by the Department in that case, she could have intervened and alleged additional grounds to find the original plan not in compliance. Now that the Department has settled its issues, Sheridan wishes to revisit the original plan, and not just the changes adopted by the Plan Amendments.
Sheridan had a clear point of entry to intervene in the original plan case.
Her failure to timely intervene precludes her attempt to raise these issues in this case.
Sheridan's first exception is denied.
Second Exception. Sheridan's second exception concerns a conclusion of law in the Recommended Order. Sheridan contends that the Hearing Officer should have applied the "preponderance of the evidence" standard of proof, rather than the "fairly debatable" standard, in weighing the evidence. Subsection 163.3184(9), Fla. Stat. (1991), provides that if the Department issues an "in compliance" notice of intent, "...the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." On the other hand, subsection 163.3184(10), Fla. Stat. (1991), provides that if the Department issues a "not in compliance" notice of intent, "(t)he local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance."
In this case, the Department issued a Notice of Intent to find the Plan Amendments in compliance with the Act and Rule 9J-5, F.A.C.
Sheridan contends that subsections 163.3184(9)&(10) create a rebuttable presumption. At the oral argument, Sheridan asserted that if the Hearing Officer (using the fairly debatable standard) determines that any portion of the comprehensive plan is not in compliance, the Hearing Officer should then use the preponderance of the evidence standard for all other issues. Sheridan claimed that, if the Department were to remand the case to DOAH for a reanalysis using the preponderance of the evidence standard of proof, the Hearing Officer would probably find more areas of the Plan Amendments not in compliance.
The method for determining the standard of proof in subsections 163.3184(9)&(10) is not a "presumption".
A presumption in a legal proceeding is an assumption of the existence of a fact which is in reality unproven by direct evidence. A presumption is derived from another fact or group of facts that has been proven in
the action. If a presumption is recognized, the presumed fact must be found to be present by the trier of fact if it finds the underlying facts which give rise to the presumption.
Ehrhardt, Florida Evidence Sub-section 301.1 (1993).
Sheridan does not seek to shift the burden of producing evidence or the burden of proof for a particular fact. Instead, Sheridan seeks to change the standard of proof for the entire case.
Sheridan correctly points out that the Department's initial determinations of compliance are not necessarily or universally accurate. However, the language of the statute does not support the outcome proposed by Sheridan. The statute prescribes a particular standard of proof based upon the issuance of a notice of intent to find the plan or amendment in compliance or not. The statutory prescription is not based on whether the plan or the amendment actually is or is not in compliance.
The decision of the legislature to apply different standards of proof in different procedural situations is logical. If both of the governmental agencies charged with the implementation of the Act agree that a plan amendment is in compliance with the Act, it is reasonable to apply a fairly debatable standard to any challengers. However, if those two governmental agencies disagree on whether a plan amendment is in compliance with the Act, it is reasonable to resolve that disagreement based upon the preponderance of the evidence standard of proof.
Sheridan's second exception is denied.
RESPONDENT'S EXCEPTIONS
First Exception. The Respondents contend that the Hearing Officer improperly found the Plan Amendments not in compliance based upon three issues that were not raised by any party to the proceeding.
The first issue is whether the existing land use baseline data were improperly omitted from the amended plan and data and analysis. The second issue is whether the County has failed to provide a reliable process for updating the available baseline existing data. Both of these issues were raised in the Prehearing Stipulation, which listed the following:
1. Whether the proposed densities and intensities shown on the Future Land Use Map (FLUM) and 2010 Overlay as amended are supported by Data and Analysis.
Whether the FLUM and Plan as amended complies with the land use suitability criteria of Chapter 163. In addition, these
issues were raised in Sheridan's examination of Lee County's planning expert, William Spikowski, at an early stage of the final hearing. [Transcript, p 120-122]
The third issue is whether the Plan Amendments fail to comply with the Charlotte Harbor Resource Management Plan requirement that post-development runoff conditions approximate natural surfacewater flow in terms of rate, quality and basin. However, the Prehearing Stipulation included the following issues:
Whether the FLUM and Plan as amended comply with the requirements of the Charlotte Harbor Resource Management Plan.
Does not protect all floodplain functions;
Post development runoff conditions not required to approximate natural surface water flow in terms of rate, quality, hydroperiod and basin.
The Respondents' first exception is denied.
Second Exception. The Respondents assert that the Hearing Officer, and apparently the Department and the Administration Commission, lack jurisdiction to invalidate remedial amendments where the challenger contends that the amendments are not restrictive enough, since the logical result of such invalidation is to reinstate the less restrictive standards of the original plan.
The Respondents incorrectly assert that, if Sheridan succeeds in establishing that the Plan Amendments are not in compliance, the less restrictive standards of the original 1989 plan will be reinstated. If Sheridan is successful, the actual result of this litigation will be an order issued by the Administration Commission which specifies the remedial actions which would bring the Plan Amendments into compliance. Subsection 163.3184(11). The Plan Amendments will remain in effect until further amendments are adopted by Lee County.
Respondents correctly point out that the Department prefers the comprehensive plan as modified by the remedial amendments to the original Lee County comprehensive plan. However, section 163.3184, Fla. Stat., governs the adoption of plan amendments, and subsection 163.3184(10) allows affected persons such as Ms. Sheridan to challenge plan amendments. Subsection 163.3184(10) makes no distinction between remedial amendments and other types of plan
amendments. As the Department stated in the final order in Citizen's Political Committee, Inc. v. Collier County, DOAH Case 90-4545 GM (Final Order Aug. 20, 1992),
The County's exception, if accepted, would preclude the challenge to plan amendments because Petitioners were not parties to the original plan review proceeding, even though the amendments could not have been
challenged prior to adoption. The County's exception would effectively preclude any citizen from ever challenging any plan amendment that is adopted as a part of a settlement agreement with the Department.
Nothing in Chapter 163, Florida Statutes, limits a citizen's opportunity to challenge plan amendments in this fashion.
The County's interpretation would frustrate the rights of citizens to participate in the local government comprehensive planning process.
This participation, including the right to invoke formal hearing requirements, is a fundamental aspect of Florida's growth management laws.
Respondents' Second Exception is denied.
Third Exception. The Respondents take issues with the Hearing Officer's control of the final hearing. The Respondents contend that the Hearing Officer failed to require Sheridan to give adequate notice of the issues to be considered at hearing, and that the Hearing Officer should not have decided any issue against the County on which no evidence was offered other than the Plan itself.
The Third Exception does not allege that any particular finding of fact is unsupported by competent, substantial evidence; nor does it allege that any conclusion of law is incorrect. The Third Exception does criticize the Hearing Officer's standards for the admission of evidence, but the Third Exception does not allege that the final hearing did not comply with the essential requirements of law. The Third Exception does not raise any issue that can be decided by the Department pursuant to the authority of Section 120.57(1)(b)10., Fla. Stat. (1991).
The Department does not agree that, as a matter of general principle, evidence other than the plan itself is always necessary to support a challenge to a comprehensive plan. Citizen's Political Committee, Inc. v. Collier County, supra, page 9.
Respondents' Third Exception is denied.
Fourth Exception. At the oral argument, Respondents stated that the Fourth Exception does not attack findings of fact in the Recommended Order, but does ask the Department to reject certain conclusions of law which find fault with the 2010 Overlay. Respondents contend that certain statements in the findings of fact section of the Recommended Order are really conclusions of law.
The Department may reject a legal conclusion, even though the statement is placed in the portion of the Recommended Order captioned "findings of fact." Sapp v. Florida State Board of Nursing, 384 So.2d 254 (Fla. 2d DCA 1980); Hernicz v. Department of Professional Regulation, 390 So.2d 194, 195 (Fla. 1st DCA 1980); Leapley v. Board of Regents, 423 So.2d 431 (Fla. 1st DCA 1982); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987).
It appears that several of the findings of fact listed in paragraph 5 of the Exceptions really are findings of fact. Since there is no contention that these findings of fact are unsupported by competent substantial evidence, the Department cannot reject these findings of fact. These findings of fact are Recommended Order paragraphs 35, 36, 37, 38, 40, 41, 42, 51 (last sentence) , 64
(last two sentences), 77, 85, 86, 88, and 89 (last sentence). The remaining "findings of fact" listed in paragraph 5 of the Exceptions appear to be "ultimate facts. Infused by policy considerations for which the agency has special responsibility...." McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. Is DCA 1977). These ultimate facts are entitled to less deference than ordinary findings of fact, and may be overruled by the Department.
Exception 4A takes issue with the Hearing Officer's conclusions regarding the density allocations in the 2010 Overlay.
The Hearing Officer found that, in the Revised Data and Analysis for the Plan Amendments,
... the County reduce(d) maximum densities permitted under the Amended Plan to reflect anticipated actual densities. This adjustment is intended to reflect the historic buildout factor in Lee County, which generally resulted in ... lower densities in urban areas and higher densities in rural areas than are designated in the Amended Plan. [FF 51.]
The Hearing Officer also found that the Data and Analysis provided only a "brief explanation" of the methodology for the density reduction [FF 50.], and that the amount of the reduction was "undisclosed" [FF 61.]. Indeed, the Hearing Officer found that maximum densities were not disclosed by the Data and Analysis. [FF 68.]
The Hearing Officer further found that:
The calculation of a density allocation ratio is part of the determination (of) whether data and analysis support the residential densities in a plan. The analysis misses
the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis,
not whether data and analysis support densities somewhere between the maximum authorized densities and historic
densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. [FF 66.]
The Hearing Officer concluded that:
The reduction, by an undisclosed amount, of the maximum population that can be accommodated by the amended future land
use map series to reflect historic densities precludes a finding that the designated densities on the amended future land use map series are supported by data and analysis. [CL 266.]
The heart of Respondents' Exception 4a is, There is no support in the record for the
Hearing Officer's conclusion that residential acreage allocations in the 2010 Overlay should be based on the theoretical
maximum land use densities, rather than historic densities which are expected to occur. [Lee Exceptions, par. 8]
However, the record does contain expert opinion testimony that maximum land use densities should be used. [Testimony of Samuel Mutch] The Department cannot reject findings of fact that are supported by competent substantial evidence, even though there is also conflicting evidence in the record. To the extent that these findings of fact are "ultimate facts", the Department agrees with the Hearing Officer's reasoning and conclusion that maximum land use densities must be used to judge whether the Plan Amendments are supported by data and analysis. The remainder of Exception 4A is a reargument of the evidence.
Exception 4A is denied.
In Exception 4B, Respondents disagree with the Hearing Officer's recommendations concerning the baseline data. The Hearing Officer found:
The baseline data missing from the Amended Plan and Data and Analysis are the acres of each existing land use for each subdistrict.... Although the evidence indicates that the County has adequate
baseline existing land use data, such data, for the reasons set forth in the Conclusions of Law, must be included in the Amended Plan or Data and Analysis because of its indispensable role in the implementation of the 2010 Overlay. [FF 40.]
Neither the Amended Plan nor the Data and Analysis identify the process by which Lee County will update the baseline existing land use data. Evidence at the final hearing
revealed serious deficiencies in the updating process, which requires the County to extrapolate from traffic data and analysis the ongoing incremental acreage increases
of land use, rather than track the increases as they are authorized in a more straightforward fashion. [FF 41.]
When confronted with the necessity of calculating exactly how much land remains in a specific subdistrict for a specific use, the County has a very poorly defined
process whose results are unreliable. The updating process does not involve tracking actual land use under the 2010 overlay.
Instead, the County reverts to traffic
data, employs undisclosed conversion factors, and reaches
a result that may or may not measure the extent of the development that it has authorized in the subdistrict under the 2010 Overlay. The conversion process is unreliable and, even if it were reliable, may be measuring merely actual uses, but not already-authorized uses not yet in existence. [FF 85.]
The Hearing Officer concluded that:
The failure of the Amended Plan or Data and Analysis to require that existing land uses be updated by means reasonably calculated to assure that new authorized uses will be reliably tracked as they are authorized deprives all of the designations on the amended future land use map series of support from data and analysis. Without reasonable certainty as to the means by which newly authorized land uses will update the
baseline existing land uses, the 2010 Overlay is meaningless. [CL 267]
The Respondents contend that the baseline data need not be submitted as part of the Data and Analysis, but may be submitted at the final hearing.
Sheridan contends, and the Hearing Officer agreed, that the baseline data are so essential to the operation of the 2010 Overlay, that the omission of the baseline data from the Data and Analysis and the Plan Amendments, and the omission of the methodology for updating the baseline data, was a fatal flaw.
Since the Hearing Officer found that the 2010 Overlay was useless without the baseline data, the Department must agree with Sheridan and the Hearing Officer that the absence of the baseline data from the Data and Analysis or the Plan Amendments renders the 2010 Overlay unsupported by the Data and Analysis.
Certainly the baseline data must be produced at the Final Hearing at the very latest, if the local government hopes to demonstrate compliance with the Act and Rule 9J-5.
The Respondents assert that, even though the County believed that it had no duty to provide the baseline data at all, it actually did provide the baseline data at the final hearing. However, it appears that the baseline data was not submitted at the final hearing. Paragraph 27 and Attachment 3 of Respondents' Exceptions set forth an elaborate method for deriving the baseline data from information in the record, but the analysis was not forthcoming, at best, until the Exceptions were filed. The Hearing Officer did not find that the baseline data was provided at the final hearing, he merely found that "... the evidence indicates that the County has . .." such baseline data. [FF 40.]
Respondents also contend that the methodology for updating the baseline data should not be an issue in this proceeding, since the updating methodology is a plan implementation issue. Sheridan contends, and the Hearing Officer agreed, that the methodology for updating the baseline data is crucial to the effectiveness of the 2010 Overlay in allocating development. Subsection 163.3177(1) provides that:
The comprehensive plan shall consist of materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.
Since the updating methodology is critical to determining how much land remains available for development in any subdistrict, the Hearing Officer concluded that the 2010 Overlay is unworkable without that methodology. The Department must agree.
Respondents' exception 4B is denied.
Fifth Exception. The Respondents disagree with the Hearing Officer's determination that the Traffic District Program in the Plan Amendments is not in compliance. As an interim measure that will expire on December 31, 1999, the Lee County plan allows the issuance of development permits which affect backlogged roads provided that there is adequate transportation capacity in the surrounding traffic district.
The Hearing Officer found that the Traffic District Program,
... as a practical matter, eliminates the possibility of concurrency imposed limitations on development due to the enforcement of level of service standards on nonconstrained roads in any of six mainland districts. The reason is the vast difference
-- in each district -- between existing service volume and traffic volume. But
this difference bears no relationship to the fact that many road segments are already operating below their otherwise applicable level of service standards and that,
under the Traffic District Program, many
more road segments, not presently backlogged, will also operate below their otherwise applicable level of service prior to 2000. [FF 107.]
The Hearing Officer concluded that the Traffic District Program:
... is inconsistent with the criteria of setting level of service standards, ensuring concurrency, and correcting existing infrastructure deficiencies. [FF 116.]
The Respondents contend that the Recommended Order would require a strict concurrency management system, while the Department has accepted greater flexibility in other cases. For example, in The Citizen's Political Committee, Inc. v. Collier County, DOAH Case No. 90-4545GM, DCA Final Order No. 92-53-FOF- CP (Aug. 20, 1992), the Department stated that:
It is preferable to develop a system that addresses the infrastructure backlog over a reasonable period of time allows some development to occur, and meets the infrastructure need generated by the new development in a well-planned manner.
The Plan Amendments provide that the Traffic District Program will not be effective after December 31, 1999, and that concurrency will then be measured on a roadway segment by segment basis. [FF 102.] The Capitol Improvements Element, which covers only a five year period (to 1994), does not include any of the major improvements that will be necessary to eliminate the backlogged road segments. [FF 115.] However, the Plan Amendments clearly contemplate that Lee County must finance those improvements in the interim, or face a widespread moratorium on development in 2000. As in the Collier case, the transportation portion of the Plan Amendments is consistent with the Department's policy prior to the adoption of the present version of 9J-5.
Respondents fifth exception is granted.
Sixth Exception. The Hearing Officer determined that the Plan Amendments are not consistent with the Charlotte Harbor Management Plan. The Charlotte Harbor Management Plan requires local governments to,
... establish plans and regulations requiring post development runoff conditions to approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin. [Second Implementation Action
under Objective 5, quoted at FF 171.]
The Plan Amendments require, as an interim measure, that new development must detain or retain excess stormwater to match the predevelopment discharge rate for the 25-year, 3-day storm event.
The Hearing Officer found three deficiencies in the Plan Amendment stormwater criteria. First, the standard addressed only rate of discharge, and ignored water quality, hydroperiod and basin. Second, the standard is limited
to a specified storm event. Third, the standard does not require redevelopment to match natural conditions, merely pre-redevelopment conditions. The Hearing Officer concluded that the Plan Amendment standard will not,
... assist in meeting the crucial objective of the Charlotte Harbor Management Plan to regulate stormwater and drainage to protect and preserve the Charlotte Harbor estuarine system, which is the primary focus of the resource management plan. [FF 177.]
The Respondents contend that there is no competent substantial evidence in the record to support the Hearing Officer's findings of fact. However, the testimony at pages 162 and 163 provide some support for the findings of fact, and the Plan Amendments and the Charlotte Harbor Resource Management Plan are in the record. As stated above, the Department does not agree that evidence beyond the plan itself must be introduced in every case.
Based upon the facts found by the Hearing Officer, the Department cannot logically disagree with his conclusions.
Respondents sixth exception is denied.
WHEREFORE, the Department of Community Affairs adopts, in part, the Hearing Officer's recommendation that the Plan Amendments are not in compliance.
Pursuant to Sub-section [163.3184(9), Fla. Stat. (1991), the Recommended Order is hereby submitted to the Administration Commission for final agency action.
DONE AND ORDERED in Tallahassee, Florida, this 28th day of June, 1993.
LINDA LOOMIS SHELLEY, Secretary
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
ANY PARTY TO THIS ORDER HAS THE RIGHT TO ATTEND THE PUBLIC HEARING AT WHICH THE ADMINISTRATION COMMISSION WILL CONSIDER THE RECOMMENDED ORDER, AND THE EXCEPTIONS AND RESPONSES TO EXCEPTIONS PREVIOUSLY FILED. THE TIME AND PLACE FOR THE ADMINISTRATION COMMISSION PUBLIC HEARING WILL BE ANNOUNCED BY THE COMMISSION.
COPIES FURNISHED:
Thomas W. Reese, Esquire Charles L. Siemon, Esquire
Kenneth Oertel, Esquire William M. Powell, Esquire Michael Donaldson, Esquire Jacqueline Hubbard, Esquire Richard Grosso, Esquire Robin Hassler, Esquire
Timothy Jones, Esquire Ray Pavelka Elizabeth C. Bowman, Esquire
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA ADMINISTRATION COMMISSION
BRENDA SHERIDAN )
)
Petitioner, )
) FINAL ORDER NO. AC-94-010(B)
) (DOAH CASE NO. 90-7791GM)
) CASE NO. ACC-93-009(B)
LEE COUNTY and DEPARTMENT )
OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
FINAL ORDER
This matter came before the Administration Commission (Commission) at a meeting of the Governor and Cabinet on February 10, 1994, pursuant to Section 120.57(1)(b)10, Florida Statutes, for final agency action on the Recommended order rendered by the Division of Administrative Hearings (DOAH) in this case on January 27, 1993. The Recommended Order was submitted to the Commission by the Department of Community Affairs (Department) on June 28, 1993. With the submittal of the Recommended Order, the Department included an order which recommended that portions of the amendments to the plan were "in compliance" and other portions were not. The Commission directed the Secretary of the Commission to enter this Final Order ruling on the exceptions of the parties, adopting, except as noted, the Findings of Fact and Conclusions of Law of the Recommended Order, ordering remedial action pursuant to Section 163.3184(10)(a), Florida Statutes, and otherwise disposing of the case. 1/
PRELIMINARY STATEMENT
On September 6 and 12, 1990, Lee County (County) adopted amendments to the Lee County Comprehensive Plan (Plan). On October 29, 1990, the Department published a Notice of Intent to find the amendments "in compliance" as that term is defined by Section 163.3184(1)(b), Florida Statutes (F.S.) The amendments were remedial amendments to the plan required by a Stipulated Settlement Agreement entered by the Department, the County, 1000 Friends of Florida, Eugene Boyd, Committee of the Islands, Inc., Responsible Growth Management Coalition, Donna Buhl, Mariner Group, Inc., Mariner Properties, Inc., and South Seas Resort Limited Partnership, d/b/a South Seas Plantation (Mariner).
On November 17, 1990, Brenda Sheridan filed a Petition with the Department challenging the "in compliance" determination. The Department forwarded the Petition to DOAH which commenced DOAH Case No. 90-7791GM. Generally, the Petition alleged that the amendments, including the revised data and analysis were not "in compliance." Specifically, the issues presented at hearing were as follows:
Whether the amended plan is consistent with the criterion of an inventory and analysis of private potable water suppliers, as required by Rule 9J-5.011(1).
Whether the amended plan is consistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment on unique wildlife habitat, as required by Rule 9J-5.012(2)(a) and (b).
Whether, in terms of future land use designations, soils, topography, floodplains, and natural resources, the amended future land use map and plan are consistent with the criterion of supporting land use suitability analysis, as required by Section 163.3177(6)(a) and (8) and Rule 9J-5.006.
Whether, in terms of densities and intensities, the amended future land use map is consistent with the criterion of supporting data and analysis, as required by Rule 9J-5.005(2).
Whether the amended future land use map is consistent with the criterion of the identification of potable water well fields permitted to pump less than one million gallons per day and their cones of influence, as required by Rule 9J-5.006(4)(a).
Whether the amended plan is consistent with the criterion of a policy identifying regulatory or management techniques for limiting specific and cumulative impacts of development or redevelopment upon wildlife habitat, as required by Rule 9J-5.012(3)(c) 1.
Whether the amended future land use map and plan are consistent with the criterion of an objective directing population concentrations away from known or predicted coastal high hazard areas, as required by Section 163.3178 and Rule 9J-5.012(3)(b)6.
Whether, in terms of the Traffic District Program, the amended plan is consistent with the criteria of provisions establishing adequate level of service standards for roads, ensuring that the required transportation public facilities will be available concurrent with the impacts of development, and correcting infrastructure deficiencies, as required by Section 163.3177(3)(a)1 and 3 and (10)(h).
Whether the plan amendments concerning transportation are consistent with the criterion of financial feasibility, as required by Section 163.3177(2).
Whether the amended plan is consistent with the criterion of a policy demonstrating how the local government will coordinate with the Charlotte Harbor Management Plan, as required by Rule 9J-5.012(3)(c)14.
Whether the amended plan is consistent with the criterion of two planning timeframes, as required by Rule 9J-5.005(4).
Whether the following provisions of the amended plan prescribe principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development and describe sufficiently the implementation of the plan, as required by Section 163.3177(1) and Rule 9J-5005(6); for objectives, are specific, measurable, intermediate ends that are achievable and mark progress toward a goal, as required by Rule 9J-
5.003(61); and, for policies, are ways in which programs and activities are conducted to achieve identified goals, as required by Rule 9J5.033(68); the 2010 overlay map; Objective 39.3 and related policies; Objective 41.1 and related policies; Objective 75.1; Objective 77.9; Objective 84.3; and Objective 104.1;
Policy 2.2.2; Policy 2.3.2; Policy 15.2.2; Policy 27.2.1; Policy 27.2.2; Policy
27.2.4; Policy 37.1.3; Policy 37.1.5; Policy 38.1.6; Policy 38.4.1; Policy
38.4.3; Policy 77.2.2; Policy 77.2.3; Policy 77.3.1; Policy 77.3.2; Policy
77.4.2; Policy 77.4.4; Policy 77.7.5; Policy 83.1.4; and Policy 88.1.1.
Whether the amended plan is consistent with the criterion of internal consistency, as required by Ruled 9J-5.005(5), in the following respects: the Traffic Circulation Element and the five year transportation capital improvement element; Policy 1.7.6, which applies the 2010 overlay map only to "final development orders or building permits," on the one hand, and Objectives 2.1 and 2.2, Goal 12, and Section XIII(a) of the amended plan, on the other hand; Goal 2, which requires financial feasibility, on the one hand, and the Traffic Circulation Element and financially feasible road map, on the other hand; Policy
2.2.2 and Section XIII (a) of the amended plan; and the amended future land use map, on the one hand, and Goals 71, 75, 77, and 79, Objective 74.1, 75.1, 77.3, 77.4, 79.1, and 87.1, and Policies 77.2.2, 77.4.4, 77.11.5, and 83.1.4, on the other hand.
Whether the amended future land use map and plan are consistent with the Charlotte Harbor Management Plan, as required by Section 163.3178(2), in terms of:
Protection of all floodplain functions (Objective 4)
Requirement that all post development runoff approximate natural surface water flow in terms of rate, quality, hydroperiod, and basin (implementation action under Objective 5);
Discouragement of dredging new channels and adding more passes to existing pass maintenance programs (implementation action under Objective 8);
Requirement that highway corridor planning in undeveloped areas consider suitability of adjacent land for urbanization (implementation action under Objective 10); and
Requirement that site development plans provide for maintenance of habitats of listed wildlife species (implementation action under Objective 11).
Whether, in terms of reducing the platted vacant lots, the amended plan is consistent with the Regional Plan.
Whether, in terms of discouraging urban sprawl, the amended plan is consistent with the following provisions of the state plan:
Section 187.201 (5), (8)-(10), (13), (16)-(18), and (20)-(22).
The Recommended Order submitted to the Department found that Sheridan, to the exclusion of fair debate, proved that the amendments were not "in compliance" for the reasons stated in paragraphs 3, 4, 8, and 14.b. listed above.
After a review of the Recommended Order, the Department made its determination. In a document entitled "Order" issued June 28, 1993, (attached hereto as Appendix "A"), the Department in response to exceptions by the parties concluded that the Hearing Officer's Findings of Fact and Conclusions of Law were appropriate as to issues 3, 4, and 14. As to issue 8, the Department determined that the Traffic District Program established by the County in the amendment was consistent with Department policy which was in effect prior to the adoption of the present version of Chapter 9J-5, Florida Administrative Code, and therefore was appropriate, contrary to the Hearing Officer's conclusions. (See The Citizens Political Committee, Inc. v. Collier County, DOAH Case No. 90- 4545GM, DCA Final Order No. 92-53-FOF-CP (August 20, 1992).) All parties of record filed exceptions to the Recommended Order. In issuing the Order the Department addressed the exceptions. The Commission construes the "Order" to be a "Determination of Noncompliance" as contemplated by Section 163.3184(9), F.S. Also, the "Rulings" on exceptions in the "Order" are construed to be recommendations only and do not bind the Commission. They have been evaluated and decided independently by the Commission.
SHERIDAN'S EXCEPTIONS
Sheridan takes exception to the Hearing Officer limiting Sheridan's challenge to the plan amendments, rather than to the whole plan as amended. Further, Sheridan takes exception to the standard of proof used by the Hearing Officer. The Commission agrees with the Department's reasoning on these issues found in 8the Order and adopts by reference the recommendation on these exceptions into this Final Order. Sheridan's exceptions are therefore denied.
Sheridan also takes exception to the Department's Order which was entered subsequent to the Hearing Officer's Recommended Order. In these exceptions Sheridan again contends that her challenge should not be limited to the remedial plan amendments but rather should include the plan as a whole. Sheridan also contends that the Department erred when it reversed the Hearing Officer's conclusions concerning the Lee County transportation concurrency program.
In addressing this second set of exceptions the Commission agrees with and adopts the discussion found in the County's response to exceptions. The County's response correctly points out that Sheridan's second set of exceptions are not authorized by Chapter 163, Part II, F.S., and this Commission need not respond. Even if the Commission were required to respond to this second set of exceptions, we would once again adopt the rationale found in the Department's Order and therefore deny the exceptions.
RESPONDENTS' EXCEPTIONS
The Respondents take exception to the Hearing Officer's consideration of issues not raised at hearing by any party. Respondents further take exception to the Hearing Officer's Findings and Conclusions which formed the basis for finding the amendments not "in compliance." The Commission agrees with the Department's reasoning on these issues found in the Order and adopts by reference the recommendations on these exceptions into this Final Order.
Respondents' exceptions 1-4, and 6 are hereby denied, exception 5 is granted. In reviewing the Order and the Hearing Officer's Recommended Order, the Commission notes a minor inconsistency in the language used in the Order. To correct the inconsistency, and with the concurrence of the Department, in the
second line of the second sentence of the first full paragraph on page 17 of the Order, the word "any" shall be changed to "all." This sentence will now read as follows:
"The Capital Improvements Element, which covers only a five year period (to 1994), does not include all major improvements that will be necessary to eliminate the backlogged road segments."
ACTION ON THE RECOMMENDED ORDER
Pursuant to Sections 120.57(1)(b)010, and 163.3184, F.S., the Commission accepts and adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order, with the exception of Findings of Fact Nos. 105 (last sentence), 107-111, 117-18.
SANCTIONS
The Department does not recommend the imposition of sanctions. The Commission accepts this recommendation and pursuant to Section 163.3184, F.S., we exercise our discretion not to impose sanctions in this case at this time because Lee County has made every good faith effort to address the deficiencies found in the Recommended Order. However, the Commission retains jurisdiction to re-evaluate the case for consideration of the imposition of sanctions if Lee County does not implement the remedial actions within the specified time frames and/or does not proceed in good faith.
REMEDIATION
As provided in the Order submitted to the Commission on June 28, 1993, the Department determined that the Traffic Districting Program established by the County prior to adoption of the most recent version of 9J-5, F.A.C., was consistent with the Department's policy concerning traffic concurrency management. The Department therefore disagreed with the Hearing Officer's findings and has recommended that the Commission find those respective Transportation Concurrency Management provisions to be "in compliance." We accept the recommendation of the Department. The following remedial actions therefore deal with the Future Land Use Map, with the 2010 Overlay and Charlotte Harbor Management issues.
In addressing the Charlotte Harbor Management Plan (CHMP) coordination issue the Hearing Officer concluded that Plan Policy 38.3.1.(b). which establishes an interim surface water management standard was inconsistent with Objective 5, Implementation Action "B" of the CHMP. As pointed out by the Hearing Officer at Findings of Fact No. 171, Objective 5, Implementation Action "B" of the CHMP requires local governments to:
"Establish plans and regulations requiring post development runoff conditions to approximate the natural surface water flow in terms
of rate, quality, hydroperiod, and basin."
Amended Plan Policy 38.3.1.(b) at the time the administrative hearing provided the following:
* Note: In the text below, language added to the text
is within the <<>>; deleted language is within the [[]].
B. Regulation of Private <<and Public>> Development Surface water management systems in <<new>> private <<and public>> developments <<(excluding widening of existing roads)>> shall be <<designed to detain or retain excess stormwater to match the predevelopment discharge rate for>> [[(meet or exceed)]] the <<25-year, 3-day storm event (rainfall).>> [[(minimum standards of the South Florida Water Management District as set forth in the Permit Information Manual, Volume IV, Management and Storage of Surface Water (West Palm Beach, 1986), as may be amended from time to time, and shall meet local relations in order]] <<This standard is designed>> to minimize <<increases of>> discharges to public water management infrastructure (or to evapotranspiration) that exceed historic <<rates>> [[natural volumes,]] to minimize change to the historic [[natural]] hydroperiod of receiving waters, to maintain the quality of receiving waters, [[at or above the applicable minimum standards set forth in Chapter 17-3, Florida Administrative Code ("Water Quality Standards," Florida DER)]], and to eliminate the disruption of wetlands and flow-ways, [[the]] <<whose>> preservation [[of which]] is deemed in the public interest.
Subsequent to Sheridan's petition for administrative hearing the County again amended Policy 38.3.1.(d) (old 38.3.1.(b)) to provide the following.
(b) Regulation of Private and Public Development.
Surface water management systems in new private and public developments (excluding widening of existing roads) shall be designed <<to SFWMD standards>> (to detain or retain excess stormwater to match the pre-development discharge rate for the 25-year, 3-day storm event [rainfall]). <<Stormwater discharges from development must meet relevant water quality and surface water management standards as set forth in Chapter 17-3, 17-40, and 17-302, and Rule 40E-4, F.A.C. New development shall be designed to avoid increased flooding of surrounding areas.>> These standards are designed to minimize increases of discharge to public water management infrastructure (or to evapotransportation) that exceed historic rates, to minimize change to the historic hydroperiod of receiving waters, to maintain the quality of receiving waters, and to eliminate the disruption of wetlands and flow-ways, whose preservation is deemed in the public interest.
The parties at hearing were unaware of the subsequent amendment and therefore the Hearing Officer was not presented with revised Policy 38.3.1.(d). While the Department believes that the revised language found in Policy 38.3.1.(b), in conjunction with the other relevant policies of the Plan including but not limited to Policy 39.3.7, adequately address the deficiencies found by the Hearing Officer. Furthermore, based on the negotiations that occurred during the Administration Commission's and the Parties' review of the instant case, further revision to Policy 38.3.1.(d), was provided and the Commission concludes that further modification to Policy 38.3.1.(d), as set forth below under remedial action, Item No. 4., adequately address the deficiencies found by the Hearing Officer, and the Parties.
The Commission hereby finds the following remediation to be appropriate:
To address the density calculation issue the County shall revise the data and analysis to include maximum allowable densities in determining the amount of development allowed by the 2010 Overlay and to show that the amount of development allowed is based on expected growth. The attached data and analysis summary, which was incorporated into the Department of Community Affairs' letter of February 4, 1994, shall be integrated into the support data and analysis.
To remedy the 2010 Overlay Baseline Data deficiencies the county shall continue its efforts to generate updated baseline data values for all 2010 Overlay subdistricts. The updated baseline data shall be completed and incorporated into the plan's data and analysis by September 30, 1994. In the interim, the County shall generate separate baseline data for each individual subdistrict whenever it applies the 2010 Overlay.
To address the 2010 Overlay Updating Methodology deficiencies the County shall adopt the following 2010 Overlay Updating Methodology. The County and the Parties acknowledge that the issue of whether or not this amendment will require modification of the Lee County Land Development Code is outside the scope of this settlement.
For each 2010 Overlay subdistricts, the County shall maintain or generate, as needed, records showing all final development orders; building permits and certificates of occupancy issued within the last twelve
(12) months. No later than September 30, 1994, the County shall have generated a baseline of existing developed acreage in each 2010 Overlay subdistrict. The baseline shall be periodically updated at least once every twelve (12) months for each 2010 Overlay subdistricts. The first comprehensive updating shall occur on or before September 30, 1995.
Project reviews for final development orders shall include a review of the predicted amount of existing Overlay capacity that will be consumed by the development to be permitted at buildout.
Subsequent to the effective date of this provision, no final development order, or extension of a final development order, shall be issued or approved if the project acreage is greater than the acreage remaining in the updated 2010 overlay subdistrict (Maps 16 and
17) regardless of other project approvals in that overlay subdistrict.
No later than the regularly-scheduled date for submission of the Lee Plan Evaluation and Appraisal Report, and every five years thereafter, the County shall conduct a comprehensive evaluation of the 2010 Overlay system, including but not limited to, the appropriateness of land use distribution in the Overlay, problems with administrative implementations, if any; and areas where the overlay system might be improved.
The Lee county Commission shall further revise its Lee Comprehensive Plan, Policy 38.3.1.(d), as follows:
"Regulation of Private and Public Development.
Surface water management systems in new private and public developments (excluding widening of existing roads) shall be designed to SFWMD standards (to detain or retain excess stormwater to match the predevelopment discharge rate for the 25-year, three-day storm event [rainfall]). Stormwater discharges from development must meet relevant water quality and surface water management standards as set forth in Chapters 17-3, 17-40, and 17-302, and Rule 40E-4, F.A.C.
New developments shall be designed to avoid increased flooding of surrounding areas. [[These standards are]]
<<Developments shall be>> designed to minimize increases of discharge to public water management infrastructure (or to evapotranspiration) that exceed historic rates, to [[minimize change to the historic hydroperiod of receiving waters,]] <<approximate the natural surface water systems in terms of rate, hydroperiod, basin and quality,>> and to eliminate the disruption of wetlands and flow ways, whose preservation is deemed in the public interest."
ORDERED, with the exception of the findings and conclusions concerning the Traffic District Program referenced above, the Recommended Order is accepted, and the amendment to the Lee County Comprehensive Plan is determined to be not in compliance. The county shall undertake the remedial actions specified herein.
The remedial action schedule is as follows:
Lee County shall submit its remedial amendments to the Department of Community Affairs, consistent with the remedial requirements set forth in Item Nos. 1.-4., in this final order during Lee County's next amendment cycle, or no later than July 31, 1994. The Department of Community Affairs shall notify the Administration Commission of the transmittal of Lee County's remedial amendments within one week of its receipt. The Department of Community Affairs shall also transmit a notice to the Administration Commission of its final compliance determination of Lee County's required remedial amendments as set forth in Item Nos. 1.-4.
Any party to this order has the right to seek judicial review of the order pursuant to Section 120.68, F.S., by the Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, Room 2105, the Capitol, Tallahassee, Florida 32399- 0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within thirty (30) days of the day this order is filed with the Clerk of the Commission.
DONE and ORDERED this 10th day of February, 1994.
DAVID K. COBURN, Secretary Administration Commission
FILED with the Clerk of the Administration Commission this 15th day of February, 1994.
Clerk, Administration Commission
ENDNOTE
1/ Note that Case ACC-93-009(A) has been voluntarily dismissed by all Intervenors. Therefore, the Final Order No. AC-94-010(A) accepts the voluntary dismissals, and accepts and adopts the Findings of Fact and Conclusions of Law contained in the Hearing Officer's Recommended Order (DOAH Case Nos. 89-1843GM and 90-7792GM).
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to the parties listed below this 15th day of February, 1994.
DAVID K. COBURN, Secretary Administration Commission
Honorable Lawton Chiles Gregory C. Smith, Esquire Governor Assistant General Counsel
The Capitol, PL05 The Capitol, 209 Tallahassee, Fl 32399-0001 Tallahassee, Fl 32399-0001
Honorable Robert Butterworth Linda Shelley, Secretary Attorney General Michael Donaldson, Esquire
The Capitol, PL01 Department of Community Affairs Tallahassee, Fl 32399-0001 2740 Centerview Drive
Tallahassee, Fl 32399-2100
Honorable Bob Crawford
Commissioner of Agriculture Richard Grosso, Esquire The Capitol, PL09 1000 Friends of Florida Tallahassee, Fl 32302 Post Office Box 5948
Tallahassee, Fl 32314-5948
Honorable Tom Gallagher
Treasurer Ray Pavelka
The Capitol, PLII Mariner Properties, Inc. Tallahassee, Fl 32399-0001 Suite 350
2800 University Drive Honorable Doug Jamerson Ft. Myers, Fl 33907-5343 Commissioner of Education
The Capitol, PL08 Robert E. Meale Tallahassee, Fl 32399-0001 Hearing Officer
Division of Administrative Hearings Honorable Gerald Lewis The DeSoto Building
Comptroller 1230 Apalachee Parkway
The Capitol, 2001 Tallahassee, Fl 32399-1550
Tallahassee, Fl 32399-0001
Thomas W. Reese, Esquire
Honorable Jim Smith 2951 61st Avenue South
Secretary of State St. Petersburg, Fl 33712 The Capitol, PL02
Tallahassee, Fl 32399-0001
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A.
Post Office Box 6507 Tallahassee, Fl 33712
Charles L. Siemon Siemon, Larsen & Purdy Mizner Park
433 Plaza Real, Suite 339 Boca Raton, Fl 33432
Timothy Jones, Esquire Assistant County Attorney Post Office Box 398
Ft. Myers, Fl 33902-0398
Jacqueline W. Hubbard, Esquire City of Ft. Myers
2200 Second Street Ft. Myers, Fl 33901
Florida Administrative Law Report Post Office Box 385
Gainesville, Fl 32602
| Issue Date | Proceedings |
|---|---|
| Feb. 17, 1994 | Final Order filed. |
| Nov. 04, 1993 | Letter to Deborah Ash from Bettie L. Kane (re: copying of file) w/check in the amount of $35.15) filed. |
| Sep. 10, 1993 | (1000 Friends of Florida) Notice of Change of Address filed. |
| Jul. 21, 1993 | (Final) Order filed. |
| Jun. 30, 1993 | Order w/cover ltr filed. (From David L. Jordan) |
| Jun. 29, 1993 | (Final) Order filed. |
| Jan. 27, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 5/4-7/92 & 6/2/92. |
| Jan. 27, 1993 | Letter to L. Shelley from R. Meale (RE: copy of recommended accompanying exhibits and transcripts) sent out. |
| Jan. 07, 1993 | Recommended Order w/attachments for case nos. 89-1843 and 90-7792 sent out. |
| May 05, 1992 | 89-1843GM, 90-7791GM & 90-7792GM are consolidated per HO instructions. |
| May 01, 1992 | (Lee County) Addendum to Prehearing Stipulation filed. |
| Apr. 13, 1992 | (Respondent) Response to Motion to Amend Petition of Brenda Sheridan filed. |
| Apr. 02, 1992 | (Petitioner) Motion for Leave to File Amended Petition; Amended Petition for Hearing filed. |
| Feb. 13, 1992 | Notice of Service of Interrogatories and Request for Production of Documents Upon Lee County filed. (From Thomas Reese) |
| Jul. 17, 1991 | Order Severing DOAH Case No. 90-7793GM from DOAH Case No. 90-7791GM and Requiring Parties to Provide Hearing Dates sent out. |
| Jun. 19, 1991 | Notice of Cancellation of Hearings sent out. (cases stayed) |
| Jun. 12, 1991 | Order on Motion for Continuance (hearing set for July 16-19, 1991; 9:00am) sent out. (90-7791GM & 90-7793GM are severed from 89-1843GM & 90-7792GM) |
| Dec. 19, 1990 | Order of Consolidation sent out. Consolidated case are: 89-1843, 90-7791, 90-7792 and 90-7793 |
| Dec. 14, 1990 | PPF's sent out. |
| Dec. 10, 1990 | Agency referral letter; Petition for Hearing filed. |
| Dec. 06, 1990 | Respondent Lee County's Motion to Strike or Dismiss Petition for Hearing; Notice of Appearance and Substitution of Counsel filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 28, 1993 | Agency Final Order | |
| Jan. 27, 1993 | Recommended Order | Future land use map not supported by data and analysis, plan fails to set loss standards for roads or concurrency, and stormwater loss standard inconsistent with state resource management plan. |
