STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GROWTH AND ENVIRONMENTAL ) ORGANIZATION, INC., ENVIRONMENTAL ) CONFEDERATION OF SOUTHWEST ) FLORIDA, INC., MIAKKA COMMUNITY ) CLUB, INC., and BECKY AYECH, )
)
Petitioners, )
) CASE NO. 96-3425GM
vs. )
) SARASOTA COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
On January 7-9, 1997, a formal administrative hearing was held in this case in Sarasota, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioners: Daniel J. Lobeck, Esquire
2063 Main Street, Suite 101
Sarasota, Florida 34237
For Respondent Ross Stafford Burnaman Department of Assistant General Counsel Community Department of Community Affairs Affairs: 2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
For Respondent Alan Roddy, Esquire Sarasota Assistant County Attorney
County: 1549 Ringling Boulevard, 3rd Floor Sarasota, Florida 34236-6772
STATEMENT OF THE ISSUES
The issues for determination in this case are whether certain portions of Amendment RU-27 to the Sarasota County Comprehensive Plan, as adopted in Sarasota County Ordinance 96- 027, are in compliance with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
PRELIMINARY STATEMENT
On July 16, 1996, Petitioners, GROWTH-RESTRAINT AND ENVIRONMENTAL ORGANIZATION, INC., ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., MIAKKA COMMUNITY CLUB, INC., and BECKY
AYECH, filed a Petition for Formal Administrative Hearing with Respondent, DEPARTMENT OF COMMUNITY AFFAIRS, challenging certain portions of Amendment RU-27 to the Comprehensive Plan of Respondent, SARASOTA COUNTY, as violative of Chapter 163, Part II, Florida Statutes, and Rule Chapter 9J-5, Florida Administrative Code. On July 22, 1996, the matter was referred to the Division of Administrative Hearings to conduct the formal hearing.
Subsequent Petitions challenging Amendment RU-27 were filed with the Division of Administrative Hearings, and by Order entered September 5, 1996, the above-styled case, and Cases Nos. 96-0327GM and 96-0381GM were consolidated for final hearing.
Thereafter the Petitions in Cases Nos. 96-0327GM and 96-0381GM were voluntarily withdrawn, and the above-styled case proceeded to final hearing on January 7-10, 1997.
At the final hearing, Petitioners presented the testimony of: Becky Ayech, Dr. Louis Schneider, qualified as an expert in planning, Richard A. Drummond, Gregg Feagans, Michael Guy and John D. Knowles. Respondent, DEPARTMENT OF COMMUNITY AFFAIRS, presented the testimony of Roger Wilburn, qualified as an expert in land use planning. Respondent, SARASOTA COUNTY, also presented the testimony of Richard A. Drummond, qualified as an expert in land use planning.
The following exhibits were presented:
4. FAX Cover Memorandum, Zimmerman to Ayech with attached Tables 1,3,4-1,4-2 and Figure 10-1. Accepted, subject to hearsay determination. [I 47.23-25]
1996 List of ECOSWF member organizations. Accepted. [I 63.4]
ECOSWF Bylaws. Accepted. [I 65.4].
ECOSWF minutes - June 6, 1996. Accepted. [I 66.4].
58. 1996 ECOSWF members. Accepted. [I 72.7].
15. Dr. Schneider's vita. Accepted. [I 112].
18. RU-27 Ordinance (including FLUM, ELUM and Land Cover Maps). Accepted. [I 114].
40. Sarasota County memorandum - Response to DCA ORC and summary of mapping issues (April 16, 1996). Accepted. [I 121]
50. Memorandum, Gray to Goodknight, September 24, 1996.
23. Sarasota County 1-75 Corridor Plan (February 1989). Admitted with limitations. [I 170-172]
22. 1989 Sarasota County Comprehensive Plan updated to prior to RU-27. Accepted. [I 188.21]
Hurricane Evacuation Study of Southwest Florida Regional Planning Council - Update 1995. Rejected. [II 44.12-22].
Greiner, Inc. Year 2020 Financially Feasible Transportation Plan (March, 1996). Accepted. [II 50.17-51.20]
Sarasota County April 21, 1994 Planning Commission agenda. Accepted. [II 115.1]
Sarasota County December 8, 1994 Planning Commission agenda and backup. Accepted. [II 118.14].
36. Sarasota County March 16, 1995, Planning Commission agenda and backup. Accepted. [II 119.23]
Sarasota County memorandum, Gray to White, September, 1995. Accepted. [II 122.2]
Sarasota County memorandum, Gray to White, October 24, 1995. Accepted. [II 128.6]
17. Transmittal version of Ordinance RU-27. Accepted. [II 131.22-133.2]
Sarasota County Planning Department summary of BCC Motions on RU-27. Accepted. [II 139.2-4]
Letter, Furtick to Drummond, January 23, 1996. Rejected.
List of Sarasota County Plan Amendments June 1989-July, 1996. Accepted. [II 165.15]
Sarasota County memorandum, October 4, 1991. Rejected. [II 170.22-171.2]
28. Map of low density subdivisions east of 1-75 (1994). Accepted. [II 175.10]
62. Figure 2 - Flood Prone Areas - RU-17. Accepted. [II 183.0].
26. Sarasota County 1974 Comprehensive Plan. Rejected.
63. Memorandum, Pumphrey to Drummond, June 16, 1992. Admitted. [II 198.24]
54. Map of Residential Development Patterns in 1994. Accepted. [II 200.6]
25. Fruitville Road Corridor Plan Ordinance 96-082. Accepted. [II 208.10]
24. Sarasota County 1-75 Corridor Plan Appendices. Accepted. [II 210.23]
Transcript, January 12, 1995, Planning Commission. Accepted. [II 217.18]
Transcript, April 20, 1995, Planning Commission. Accepted. [II 219.9]
DCA Technical Memorandum Vol. 4, No. 4. Rejected.
DCA Community Planning, Vol. 4, No. 2. Rejected.
27. Sarasota County 1981 Comprehensive Plan, Future Land Use.
19. Sarasota County Evaluation, Appraisal Report, Future Land Use, February 20, 1996. Accepted, subject to relevance determination. [III 188.25]
Department:
Memorandum, Schmertmann to Beck, June 10, 1996, with attachments. Accepted, [III 44.21]
Letter, Beck to Matthews, March 1, 1996, with attachment. Accepted. [III 43.19]
Letter, Daltry to Eubanks, March 1, 1996, with attachments. Accepted. [III 46.25]
Letter, Percy to Eubanks, January 11, 1996. Accepted, [III 47.10]
Letter, Goggin to Eubanks, January 24, 1996. Accepted, [III 47.24]
Letter, Feder to Eubanks, January 25, 1996, with attachments. Accepted, [III 48.12]
Letter, McDonald to Quinn, January 31, 1996. Accepted, [III 49.2]
Letter, Daltry to Matthews, June 21, 1996, with attachment. Accepted. [III 49.19] County:
3. 1995 Aerial Photograph (composite) of subject properties and adjacent area. Accepted. [III 144.9]
A transcript of the proceedings was filed on February 7, 1997. Petitioners filed a Proposed Recommended Order on February 24, 1997. Respondents filed Proposed Recommended Orders on February 24, 1997.
At the conclusion of the hearing, Respondent, SARASOTA COUNTY, renewed its Motion to Strike certain allegations of the Petition as insufficient. Respondent’s Motion to Strike is GRANTED in part, as more fully determined in the Conclusions of Law set forth below.
FINDINGS OF FACT
Petitioner, GROWTH-RESTRAINT AND ENVIRONMENTAL ORGANIZATION, INC. (GEO), is a non-profit environmental advocacy organization. By stipulation, GEO is an “affected person” as defined in Section 163.3184(1), Florida Statutes.
Petitioner, ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC. (ECOSWF), is a Florida non-profit corporation which has a number of corporate and individual members in Sarasota
whose corporate purposes may be affected by RU-27. ECOSWF has engaged in a variety of advocacy and educational activities in Sarasota County and submitted oral comments to Sarasota County during the adoption of RU-27.
Petitioner, MIAKKA COMMUNITY CLUB, INC. (MCC), is a non- profit community corporation whose members primarily reside in Sarasota County. By stipulation MCC is an “affected person” as defined in Section 163.3184(1), Florida Statutes.
Petitioner REBECCA AYECH (AYECH) owns property and resides in Sarasota County and submitted oral and written comments to Sarasota County on RU-27. By stipulation AYECH is an “affected person” as defined in Section 163.3184(1), Florida Statutes.
Respondent DEPARTMENT OF COMMUNITY AFFAIRS (DEPARTMENT) is the State land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes pursuant to Sections 163.3184, 163.3189, Florida Statutes.
Respondent SARASOTA COUNTY (COUNTY) is a local government with responsibility to prepare a comprehensive plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171, Florida Statutes.
The Challenged Amendment
Ordinance 96-27, also known as amendment RU-27, was adopted by Sarasota County on April 30, 1996. RU-27 substantially revised the future land use element (FLUE) and future land use map (FLUM).
Sarasota County is approximately 563 square miles in size. The revisions to the FLUM contained in RU-27 as a whole substantially affect approximately 305,000 acres. Petitioners’ only challenge to RU-27 as a whole is that the plan improperly fails to incorporate a five-year time frame for land use. In all other respects, Petitioners’ challenge is limited to two parcels of land comprising approximately 200 acres located immediately east of I-75 and immediately north of Fruitville Road. These parcels are identified as “A” and “C” on page 5 of Petitioners’ Exhibit 40.
On the pre-amendment FLUM, Parcels A and C are designated semi-rural. “Semi-rural” provides for residential densities up to one unit per two acres.
The post-amendment FLUM provided for the following land uses for parcels A and C: the western half of Parcel A was "major employment center/interstate regional office park" (MEC/IROP) and the eastern half was "moderate density residential" (MDR); the northern (approximate) third of Parcel C was "moderate density residential" (MDR), and the southern two thirds was "major employment center" (MEC).
MEC is described in the FLUE as: Coordinated development of industrial, commercial, service and governmental uses within a park-like setting" which is encouraged in MEC. Commercial general uses, which are customarily accessory and incidental to the primary uses allowed within a MEC may be permitted, provided that such commercial uses are located and
oriented internally, are consistent with an adopted Critical Area Plan or Development of Regional Impact, are located at least 300 feet from the boundary and do not exceed five percent of the total land area. Class A quality type development is encouraged, particularly along 1-75 pursuant to FLUE Policy 3.3.5. MDR-type residential densities can be allowed in the MEC districts up to
25 of the area consistent with FLUE Policy 3.1.2. All development within an MEC must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC are: PCD, PID, I, ILW, GU and PRD.
MEC/IROP FLUE policies permit "planned office parks including high technology research and development centers" pursuant to FLUE Policy 3.3.4. All development within an MEC/IROP must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC/IROP are: PCD, PID, I, ILW, GU and PRD.
MDR as described in the FLUE Policy 3.1.1 is development within the Urban Service Area (USA) having "gross densities equal to or greater than two dwelling units per acre and less than five dwelling units per acre." Implementing Zoning Categories for MDR are: RSFI, RSF2, RSF3, RSF4, RMH and PRD.
Subject Properties
Parcels A and C had initially been identified as a "study area" in the transmitted version of RU-27. At the adoption stage public hearing the Sarasota County Planning
Department staff presented recommendations as to the designation of Parcels A and C and the extension of the Urban Service Area to encompass those parcels.
At the time of the adoption of RU-27, Parcel A was substantially undeveloped, and consisted of about 60-70% pine flatwoods; 35% mesic hammock; and three small freshwater wetlands. There was a dolomite waste water treatment facility in the northwest corner. Further, a two-lane paved road oriented north-south ran inside of the western boundary, connecting the mining operation to the north with Fruitville Road to the south and then west to 1-75.
At the time of the adoption of RU-27, Parcel C was mostly cleared open land with approximately a dozen houses and other structures.
Adjacent Area
At the time of RU-27's adoption, immediately north of Parcel A was a Florida Power and Light Company transmission line and easement, and north of the easement was a series of mining operations and a Development of Regional Impact industrial and office park development.
At the time of RU-27's adoption, east of Parcel A was a low density residential area known as the Fox Creek housing development, generally developed with five-acre parcels.
At the time of RU-27's adoption, east of Parcel C was a high density area known as the "Sun `N Fun" recreational vehicle and mobile home park.
At the time of RU-27's adoption, across Fruitville Road and to the south of Parcel C was what is known as the "celery fields" parcel. The celery fields have been obtained by Sarasota County as a regional stormwater facility.
At the time of RU-27's adoption, south of Fruitville Road on both sides of 1-75 were major employment centers with warehousing and industrial uses.
At the time of RU-27's adoption, west of 1-75 and North of Richardson Road was a multi-family residential development under construction.
At the time of RU-27's adoption, at the immediate northeast corner of 1-75 and Fruitville Road, was a MEC. It was established in 1993 in Amendment RU-15. The FLUM amendments changed the land use designation on the parcel to the immediate north of the previously existing MEC from semi-rural to MEC. Petitioners do not challenge this change. Parcel C is contiguous to the eastern boundary of the previously-existing MEC.
A 24-inch force main water pipeline is scheduled to be constructed along Coburn Road, running along the western boundary of Parcel A, and a new water pumping station is planned for the northern corner of Parcel A. Potable water is available to Parcels A and C.
A sanitary sewer (wastewater) pipeline is scheduled to be built by Sarasota County along the north, west and south boundaries of Parcel A.
An analysis of the planning for the MEC and MEC/IROP land uses is set forth at pages 30-34 of RU-27.
The Department's Compliance Review and Finding
On or about December 8, 1995, Sarasota County transmitted a proposed amendment to the comprehensive plan including amendment to the FLUE and FLUM. Sarasota County requested that the Department apply the Objections, Recommendations and Comments review process.
The Department reviewed the proposed amendment, and notified the County on or about March 1, 1996, that the Department had seven objections to the proposed amendment under Chapter 163 and Chapter 9J-5, Florida Administrative Code. None of the objections pertained to Parcels A or C directly. In addition, the Department objected based upon alleged inconsistencies with the Regional Policy Plan, Goal 7, Regional Issue F and Goal 9, Regional Issue E; and based upon inconsistency with the State Comprehensive Plan, Goal 7, Policies
24 and 25 and Goal 9 Policy 3.
None of the state or regional agencies which commented on RU-27 to the Department at the transmittal or adoption stage registered any objections to RU-27.
The Florida Department of Transportation reviewed the amendment and had no objections.
The Southwest Florida Water Management District reviewed RU-27 and registered no objections. The District commented that the proposed amendment did not address the
District's pending Southern Water Use Caution Area rule and its potential effects on land use and development within the County.
The Southwest Florida Regional Planning Council reviewed the proposed RU-27 amendment and determined it to be consistent with the Regional Policy Plan.
The Department of Environmental Protection offered no comments or objections to the amendment.
On or about April 30, 1996, the County transmitted the adopted amendment (Ordinance RU-27) to the Department.
RU-27 was a major revision of the FLUE.
Sarasota County made changes in the transmitted version of RU-27 in the adoption stage, including changes to the FLUM.
Among the changes to the transmitted amendment were: updated (to 1995) population estimates and projections; development capacity calculations; existing land use and cover maps, "minor corrections to the FLUM," updating of the FLUM "to show recent government acquisitions and changes to the FLUM that affected specific relatively small areas," and minor changes to several policies.
The Department determined that the plan amendment adopted in Ordinance RU-27 was in compliance.
The Department published notice of intent to find Ordinance RU-27 in compliance on June 26, 1995, in the Sarasota Herald-Tribune.
Petitioners filed a timely Petition challenging the Department’s intent to find Ordinance RU-27 in compliance.
In Paragraph 4.a. of the Petition, Non-Compliance with Section 163.3177, it is alleged that the subject portion of RU-27 violates Section 163.3171, Florida Statutes, because (1) it causes the FLUM not to be based on the projected population of Sarasota County; (2) it allows urban sprawl into new areas without correcting public facilities deficiencies; (3) it fails to recognize important environmental features (messic hammock, wetlands, pine flatwoods); and (4) it fails to account for I-75 as an evacuation route when it is projected to be severely over- stressed for evacuation purposes.
The evidence fails to establish any requirement that the designation of each parcel be mathematically justified in the plan or the effect of the designations at issue on the demographic analyses supporting the plan. As part of the plan amendment process, Sarasota County analyzed the growth trends in the northern versus the southern half of the county, and found that the northern half of the county had limited residential capacity for the next ten years, with a projected buildout by 2006. The limited supply justified an additional amount of additional residential capacity.
The evidence fails to establish the existence of any public facilities deficiencies that would be affected by the amendment.
Native habitats receive protection from other provisions of the comprehensive plan during the development review process, even under the designations applied in RU-27.
The evidence fails to establish that the amendment would have any adverse impact on I-75’s ability to carry traffic in an emergency. The subject area is not a hurricane evacuation zone, but is planned to serve as a safe area to absorb evacuees from other coastal regions of the county.
Timing of RU-27 vs. the EAR
Petitioners allege that the subject portion of the amendment violates Section 163.3191, Florida Statutes, because it was transmitted and adopted prior to the adoption of Sarasota County’s Evaluation and Appraisal Report (EAR).
Sarasota County’s EAR was adopted on February 20, 1996.
RU-27 was adopted on April 30, 1996.
Sarasota County notified the Regional Planning Council that RU-27 was an EAR-based amendment, but did not specifically notify the Department. The Department, however, considered and reviewed RU-27 as an EAR-based amendment.
Other local governments have failed to specifically designate EAR-based amendments in the past. On such occasions the Department has contacted the local governments to ascertain the status of such amendments during the Department’s review process.
Alleged Inconsistency with State Comprehensive Plan
Petitioners allege that the amendment "does not comply" with the following parts of the State Comprehensive Plan: 187.201(8), (10), (17), (18), (20), (23), (24), Florida Statutes.
The evidence fails to establish any inconsistency with the State Comprehensive Plan.
The Southwest Florida Regional Planning Council found the amendment to be consistent with the State Comprehensive Plan.
Additionally, the more specific and credible expert opinion is that the designations of the parcels at issue are consistent with the State Comprehensive Plan.
Data and Analysis
Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(a) and 9J-5.006, Florida Administrative Code, in that it is not based on relevant and appropriate data and analysis.
The evidence fails to establish the existing Future Land Use Element was not based on appropriate data and analysis, or that the entirety of RU-27 was not based on appropriate data and analysis.
The evidence fails to establish that the data supporting the amendment were not collected and applied in professionally accepted manner.
A consultant’s study prepared for the County in 1989 had estimated the unadjusted demand for new office park development in the I-75 corridor to consume approximately 640 acres by the year 2010. These data, prepared for an I-75 Corridor Plan, were incorporated into the 1989 update of the Comprehensive Plan. Based on this information, the County had designated 770 acres of MEC/IROP land to allow for environmental
constraints. Although located at an I-75 interchange, Parcels A and C had not been designated for Urban uses in part because of drainage problems and the habitat located on parts of Parcel A. Because of recent drainage improvements in this area and more stringent environmental site planning requirements incorporated into the plan after 1989, this particular location has improved substantially as to its suitability for MEC/IROP development.
By designating a portion of this site for MEC/IROP uses, RU-27 increased the supply of MEC/IROP land by approximately 60 to 70 acres. No other MEC/IROP lands were added by RU-27, resulting in a total available supply of approximately 840 to 850 acres. When compared with the 1989 consultant’s study, the total MEC/IROP acreage exceeds absolute demand by approximately 33 percent.
The MDR contained within the subject parcels amounts to approximately 120 acres. At the maximum possible density of five units per acre, 600 residential units could be constructed on these parcels, or 540 units more than the maximum allowable under the previous Semi-Rural designation. The total urban residential capacity of the urban-designated area in RU-27 is 43,912 units, meaning that the new urban development permitted on these parcels constitutes a maximum or 1.23 percent of the total number of potential units. Based on the County’s existing land use controls and other constraints, the County projects that such lands will actually develop at even lower densities than the maximum allowed within the FLUM designations. The actual zoning
density applied in Sarasota County is less than Future Land Use designation, except in the rural area.
In the text of the RU-27 amendment, the County justified the need for the designation of the MDR at this particular location as being to “serve as a transition between lands designated as Major Employment Center and existing Semi- Rural Development.”
Population Projections
Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(e) and 9J-5.006(1)(g), Florida Administrative Code, in that it is not based on required population projections.
RU-27 is based upon residential as well as seasonal population projections.
The MDR areas designated on Parcels A and C by RU-27 were intended to provide a buffer between the newly-created MEC and MEC/IROP land uses on those parcels and existing residential development.
Petitioners essentially challenge the changed land uses on Parcels A and C to new residential MDR capacity based upon the allegation that the expansion of the Urban Service Area to include the parcels is "over-allocated" because it exceeds the 133% market flexibility factor. The evidence, however, fails to show that the land uses designated for Parcels A and C is inconsistent with the projected population growth, particularly
in light of the faster growth rate in the northern portion of Sarasota County.
Planning Time Frames
Petitioners allege that the amendment does not comply with Rule 9J-5.005(4), Florida Administrative Code, because the FLUE does not contain a five-year planning time frame.
The challenged portions of the amendment (Parcels A and
C) do not specifically relate to the planning time frame requirement, however, it is clear that the plan as amended contains at least two planning time frames, 1995-2005 time frame associated with the Urban Service Area and provision of capital improvements, and 1995-2010 for long-range capital improvements planning.
Internal Consistency with Goals, Objectives, Policies
Petitioners allege that the amendment does not comply with Rule 9J-5.005 (5), Florida Administrative Code, due to alleged internal inconsistency between the two FLUM changes and the following parts of the FLUE (as amended by RU-27).
(1) Analysis. The Petition refers to portions of the Analysis section: "Development Capacity of the Urban Area"; "Coordination of Capital Improvements and band Uses"; "Planning for Residential Uses"; "Planning for Industrial Uses"; and "Summary." The evidence does not establish that the changed land uses on Parcels A and C are inconsistent with the totality of the data and analysis which the County considered. The County Commission designated Parcels A, B and C as a "study area", there was a pre-existing MEC on a contiguous parcel, and Parcel B was an urban enclave proximate to the Interstate. The map depicting the urban planning area did not include Parcels A and C; however, the map was intended to include the pre-RU-27 urban areas as a basis for beginning work on the amendment. The evidence does not establish an inconsistency between the Analysis Section and Parcels A and C.
(2) Intent. The Petition did not identify any specific provision of the Intent section alleged to be insistent with the FLUM designation of the two parcels. The Intent Section does not set forth goals, objectives or policy as meant by Rule 9J- 5.005(5)(b), Florida Administrative Code. The evidence does not
establish an inconsistency between the Intent Section and the designation of the two parcels at issue.
(3) Policy 1.2.1. This policy requires that potential land use incompatibilities be mitigated through certain design techniques. This policy applies to the issuance of development orders and rezonings, not plan amendments. The evidence does not establish an internal inconsistency with Policy 1.2.1.
(4) Policy 2.2.1. This policy requires that development orders be conditioned on adequate levels of service. A plan amendment, however, is not a development order. The evidence does not establish an internal inconsistency with Policy 2.2.1.
(5) Policy 2.2.2. This policy requires that public expenditures for infrastructure and services be concentrated to serve areas within the Urban Services Area (USA) boundary. The parcels in question are within the USA boundary. The evidence does not establish an internal inconsistency with Policy 2.2.2.
(6) Policy 2.3.1. This policy calls for a minimum dwelling unit potential within the USA boundary of 133% of the projected housing demand. Parcels A and C are within the USA, therefore no inconsistency exists.
(7) Policy 2.3.2. This policy provides that the Future Urban areas will be considered for inclusion within the USA, based on the Evaluation and Appraisal Report (EAR). The evidence does not establish an internal inconsistency with Policy 2.3.2.
(8) Policy 2.3.4. This policy explains that the FLUM “establishes a long-range maximum limit on the possible intensity of land use,” but not a minimum. The designation of Parcels A and C in this regard is consistent with Policy 2.3.4.
(9) Goal 3. This goal calls for the orderly development of lands needed to accommodate the projected population growth. . . .” The designation of Parcels A and C reflects a balanced approach to population growth in the northern part of Sarasota County. The evidence does not establish an internal inconsistency with Goal 3.
(10) Policy 3.1.1. This policy provides guidelines for the application of the residential density ranges provided in the comprehensive plan to subsequent development orders. The designation of Parcels A and C is not a development order. The evidence does not establish an internal inconsistency with Policy 3.1.1.
(11) Policy 3.1.7. This policy requires the County to amend and adopt appropriate ordinances and plans to promote mixed use, pedestrian and bicycle friendly communities within two years. Within the context of RU-27, the designation of Parcels A and C provides a reasonable plan to promote the mixed use of this property and incorporate the area in an orderly manner. The evidence does not establish an internal inconsistency with Policy 3.1.7.
(12) Objective 4.1. Objective 4.1 provides for the establishment and implementation of planning programs to address
development and redevelopment opportunities. The evidence does not establish an internal inconsistency with Objective 4.1.
(13) Policy 4.1.7. This policy calls for the development and preparation of a subsequent overall plan for the areas east of I-75 in Sarasota County. The policy does not prohibit or otherwise limit the uses previously designated or the uses set forth in RU-27. The evidence does not establish an internal inconsistency with Policy 4.1.7.
(14) Appendix I. Appendix I contains the capacity methodology and the designation of the two parcels at issue. The Petition did not allege that the methodology contained in Appendix I failed to comply with Chapter 163 or Rule 9J-5, and there is no showing of an internal inconsistency.
Concurrency
Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.0055 and 9J- 5.006(2)(a), Florida Administrative Code, because all required public facilities will not be available concurrent to the development permitted by RU-27.
There is no evidence of any inadequacy of the plan’s existing concurrency management systems or their consistency with state statute or rule.
There are no existing public facilities deficiencies at Parcels A and C. The designation of Parcels A and C in the amendment would not exacerbate any existing public facilities deficiencies.
While the designation of Parcels A and C would have some impact on roads, sanitary sewers, stormwater management, and other facilities and services, the evidence does not establish that required facilities will not be available concurrent to development.
Urban Sprawl
Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.006(3)(b)8 and 9J- 5.006(5), Florida Administrative Code, because it allows and encourages urban sprawl.
There is no existing or historic problem of urban sprawl in Sarasota County. Sarasota County has historically provided only the capacity needed to support the population projections.
RU-27 established the urban service area for Sarasota County.
The change in land use for the subject properties in RU-27 did not cause urban sprawl.
Sarasota County has for planning purposes a “tight” plan, in that it contains effective land use controls, works well within the planning timeframes, and contains a much lower allocation of new land for growth than other land use plans reviewed and approved by the Department.
The approximate 200 acres of Parcels A and C do not constitute a “substantial area” of Sarasota County.
Parcels A and C do not constitute a substantial area of the FLUM, which encompasses approximately 305,000 acres.
As determined by the planning reviewers, the changes to the adopted FLUM pertain to relatively small areas.
The changes to the FLUM for Parcels A and C substantially represent an “urban to urban” change.
The rule indicators of urban sprawl are not implicated by the changed land use of Parcels A and C.
Sarasota County’s plan has effective development controls in place to mitigate for or discourage urban sprawl.
The new FLUM categories for Parcels A and C are not properly characterized as “low intensity” or “single-use development.”
The new FLUM categories for Parcels A and C are not properly characterized as “in excess of demonstrated need.”
The new land uses for Parcels A and C constitute "nodal development" which is not urban sprawl and not “radial strip development.”
The new land uses for Parcels A and C do not constitute “leapfrog” development, but constituted “infill” of the existing and surrounding development to Parcels A and C.
102 The amended land uses for Parcels A and C do not reflect premature, poorly-planned development.
Parcels A and C do not have adjacent active agricultural areas with which to conflict.
Regional Policy Plan
Petitioners claim that the amendment does not comply with the following parts of the Regional Policy Plan: Goal 1-9; Policy 10; Goal 11-25; and Policy 1e.
The Department and Southwest Florida Regional Planning Council determined that the amendment is consistent with the Regional Policy Plan.
There is no evidence of record regarding any inconsistency with the Southwest Florida Regional Policy Plan.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this matter. Sections 120.569 and 120.57(1), Florida Statutes (Supp. 1996) and 163.3184(9), Florida Statutes (1995).
The Department is the state land planning agency vested with statutory authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Among the responsibilities of the Department under the Act is the duty to review plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act. Section 163.3184(8), Florida Statutes.
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, the State Comprehensive Plan, the Regional Policy Plan, and Rule 9J-5, Florida Administrative Code. Section 163.3184(l)(b), Florida Statutes.
Sarasota County is a local government which has the duty to adopt comprehensive plan amendments which comply with the Act pursuant to Sections 163.3167(2), 163.3177 and 163.3184, Florida Statutes.
AYECH is an affected person as defined in Section 163.3184(1)(a), Florida Statutes.
MCC is a an affected person as defined in Section 163.3184(1)(a), Florida Statutes.
GEO is a an affected person as defined in Section 163.3184(1)(a), Florida Statutes.
ECOSWF is a an affected person as defined in Section 163.3184(1)(a), Florida Statutes.
Petitioners have the initial burden of going forward with the evidence and the ultimate burden of persuasion to prove the allegations in the Petition regarding compliance of the plan amendment to the exclusion of fair debate.
"Fairly debatable" is a standard which is "a deferential one that requires affirmance of the local government's action if reasonable persons could differ as to its propriety." B & H Travel v. Dept. of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992).
Petitioners are bound by the allegations in their Petition for Administrative Hearing as to the deficiencies in the Plan and have the burden of proof as to those allegations. Sections 120.569 and 120.577(1), Florida Statutes (Supp. 1996); Heartland Environmental Council, Inc. v. Department of Community Affairs and Highlands County, 96 E.R.F.A.L.R. 185 (Dept. of Community Affairs, 1996).
Section 163.3177(6)(a), Florida Statutes, requires a future land use plan to be based, in part, upon "surveys, studies and data" regarding the area and the "the amount of land anticipated to accommodate anticipated growth, the projected population of the area, the character of undeveloped land, and the availability of public services." Petitioners do not dispute
that the Sarasota Plan, as amended by RU-27, is devoid of these planning requirements, rather, they contend that the County's amended land uses for Parcels A and C is not "based upon" such information. More specifically, Petitioners contend that the FLUM as to these two parcels only is not based on population projections; it allows urban sprawl without correcting public facilities deficiencies; it fails to recognize important environmental features (mesic hammock, wetlands, pine flatwoods) and it fails to account for 1-75 as an evacuation route when it is projected to be severely over-stressed for evacuation purposes.
As to the population projections, the revised inventory and analysis portion of RU-27, contains an analysis of projected population. RU-27 specifically, addresses "Development Capacity of the Urban Area," which further references Appendix I, Section 4.
In the analysis of development capacity, the County recognized the need for revisions to the USA boundary which resulted in total estimated year 2005 development potential of 43,912 housing units compared to the 1995 FLUM's estimated USA capacity of housing 40,267 units. Although the estimated development potential of the amended USA is over 200% of projected demand to the year 2005, the Plan recognizes the need for an "over-allocation" to provide for "market flexibility" in that the development capacity for the USA at the beginning of the planning period should be a minimum of 133% of projected demand.
Under these circumstances, it is fairly debatable that the 200% allocation is consistent with a minimum 133% standard.
The "Review of Plans and Plan Amendments for Discouraging the Proliferation of Urban Sprawl" is provided for in Rule 9J-5.006(5), Florida Administrative Code. The rule sets forth the primary indicators of urban sprawl. The weight of the evidence does not support the conclusion that the designation of parcels A and C as contained in RU-27 is indicative of urban sprawl under the rule. Moreover, the rule contemplates an "evaluation of land uses" within the context of "local conditions," which in turn are affected by consideration of "development controls." There is no evidence on these three significant aspects of the urban sprawl analysis which would support the conclusion that the designation of Parcels A and C is urban sprawl under Rules 9J-5.006(5)(h), (i), (j)1, and (k), Florida Administrative Code.
The "primary indicators" of the urban sprawl rule were not established. The MDR and MDR/IROP designations, which require special area plans, are the type of mixed-use development encouraged by the rule. Rule 9J-5.006(5)(l). The MDR designations are appropriate buffers contemplated by the rule and FLUE policies.
Neither the statute, Chapter 9J-5, Florida Administrative Code, nor other plan policies require that all mesic hammock, pine flatwoods, and freshwater wetlands on any given parcel be preserved. Further, no internal inconsistency is
alleged between the FLUM and the Environment Chapter of the Plan. Accordingly, the evidence does not support the conclusion that the FLUM is inconsistent with Section 163.3177, Florida Statutes, on that basis.
The evidence does not support the conclusion that the changed land uses for Parcels A and C would disrupt the use of 1-
75 or any other roadway as an evacuation route. Under current estimates, 1-75 is not projected to be backlogged in the period to 2020.
Petitioners’ allegation that the timing of RU-27 vis- à-vis the EAR sufficiency determination is premised on Section 163.3191, Florida Statutes. However, that citation is inapplicable since the statute which addresses the timing requirement is Section 163.3187(6), Florida Statutes. See also, Section 163.3184(1)(b), Florida Statutes.
The evidence does not support the conclusion that the amendment is inconsistent with the State Comprehensive Plan. There was no showing of specific inconsistency to the Plan, and none of the reviewing agencies, including the Southwest Florida Regional Planning Council, found any inconsistency.
As to the data and analysis, Sarasota County designated the subject property as a study area in the transmittal version of RU-27, reviewed the land use designations for the parcels and determined that the land uses were appropriate. The EAR projected the need for additional MEC and
MEC/IROP acreage in the 2000-2010 time frame, and only a few interchanges exist which can support the MEC/IROP designation.
The evidence does not reflect an inconsistency with the requirement that the plan be based upon resident and seasonal population projections. Rules 9J-5.005(2)(e) and 9J-5.006(1)(g), Florida Administrative Code. The plan was clearly based upon professionally accepted methodologies, including the mid-range University of Florida Bureau of Economic and Business Research estimates.
The evidence presented failed to establish that the amendment was not supported by the requisite data and analysis, or is otherwise not in compliance.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order dismissing the Petition and finding Sarasota County's Comprehensive Plan, as amended, to be in compliance.
DONE and ORDERED this 20th day of March, 1997, in Tallahassee, Florida.
RICHARD HIXSON
Administrative Law Judge
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1997.
COPIES FURNISHED:
Liz Cloud, Chief
Bureau of Administrative Code The Elliot Building
Tallahassee, Florida 32399-0250
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
James F. Murley, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Ross Stafford Burnaman Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd.
Tallahassee, Florida 32399-2100
Daniel J. Lobeck, Esquire 2063 Main Street, Suite 101
Sarasota, Florida 34237
Alan Roddy, Esquire Assistant County Attorney Sarasota County
1549 Ringling Boulevard, 3rd Floor Sarasota, Florida 34236-6772
Stephen D. Rees, Esquire ICARD, MERRILL, CULLIS,
TIMM, FUREN and GINSBURG
2033 Main Street, Suite 600
Sarasota, Florida 34237
| Issue Date | Proceedings |
|---|---|
| Apr. 23, 1997 | Final Order filed. |
| Mar. 20, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held January 7-9, 1997. |
| Feb. 24, 1997 | Department of Community Affairs Proposed Recommended Order filed. |
| Feb. 24, 1997 | Sarasota County`s Proposed Recommended Order filed. |
| Feb. 24, 1997 | Petitioner`s Motion for Extension of Time to Serve Petitioners` Proposed Recommended Order rec`d (via facsimile) |
| Feb. 07, 1997 | (3 Volumes) Transcript filed. |
| Feb. 03, 1997 | Petitioners` Exhibit 17 filed. |
| Jan. 17, 1997 | Letter to RH from A. Roddy Re: Transcript filed. |
| Jan. 14, 1997 | Petitioners` Exhibits No. 22 and 60 and Sarasota County`s Exhibit No.3 filed. |
| Jan. 07, 1997 | CASE STATUS: Hearing Held. |
| Jan. 06, 1997 | (DCA) Prehearing Stipulation filed. |
| Jan. 06, 1997 | Intervenor`s Motion In Limine; (Intervenors) Notice of Hearing (filed via facsimile). |
| Jan. 06, 1997 | Respondent Sarasota County`s Motion to Strike (filed via facsimile). |
| Jan. 06, 1997 | (Sarasota County) Motion to Quash Subpoenas Duces Tecum w/Attachments(filed via facsimile). |
| Jan. 03, 1997 | (DCA) Request for Official Recognition filed. |
| Dec. 30, 1996 | (DCA) Agreed Motion to Continue Deposition Telephonically; (DCA) Notice of Resumption of Taking Deposition (filed via facsimile). |
| Dec. 24, 1996 | (Sarasota County) Supplemental Response After Hearing filed. |
| Dec. 20, 1996 | (Respondent) Supplemental Response Afrer Hearing (filed via facsimile). |
| Dec. 20, 1996 | Petitioner`s Response to Sarasota County`s Motion to Compel (filed via facsimile). |
| Dec. 20, 1996 | Petitioners` Motion for Extension of Time to Serve Answers to Respondent Sarasota County`s First Set of Interrogatories (filed via facsimile). |
| Dec. 18, 1996 | (Respondent) Notice of Telephonic Hearing (filed via facsimile). |
| Dec. 16, 1996 | (Petitioners) Notice of Service of Answers to Interrogatories filed. |
| Dec. 16, 1996 | (Petitioners) Notice of Service of Answers to Interrogatories; Cover Letter (filed via facsimile). |
| Dec. 16, 1996 | (Joint) Stipulation to Intervene; Cover Letter (filed via facsimile). |
| Dec. 12, 1996 | (From J. Boone) Notice of Hearing (filed via facsimile). |
| Dec. 12, 1996 | (Sarasota County) Motion to Compel w/cover letter filed. |
| Dec. 05, 1996 | (DSCA) 4/Notice of Taking Deposition (filed via facsimile). |
| Dec. 05, 1996 | Petitioners` Motion for Extension of Time to Serve Answers to Respondent Department of Community Affairs First Set of Interrogatories; Cover Letter (filed via facsimile). |
| Dec. 04, 1996 | (Respondent) Notice of Sending Request for Production to Petitioners GEO, ECOSWF, MIAKKA Community Club, Inc., and Becky Ayech; Sarasota County`s Request for Production to Petitioners GEO ESCOWF, MIAKKA Community Club, Inc., and Becky Ayech (filed via fac |
| Nov. 14, 1996 | Case No/s: 96-3425 & 96-3427 unconsolidated. |
| Nov. 12, 1996 | Notice of Voluntary Dismissal of Petition By Petitioners, Ansin and Gildersleeve, Trustees filed. |
| Oct. 31, 1996 | Notice of Petitioners, Ansin and Filbersleeve, Trustees, Service of Answers to First Set of Interrogatories Propounded by Respondent, Department of Community Affairs (for Case no. 96-3425GM) filed. |
| Oct. 30, 1996 | Order of Consolidation sent out. (Consolidated cases are: 96-3425GM,96-3427GM) |
| Oct. 30, 1996 | Case No/s 96-3425GM, 96-3427GM, 96-3581GM: unconsolidated. |
| Oct. 30, 1996 | Notice of Service of Department of Community Affairs First Set of Interrogatories to Environmental Confederation of Southwest Florida, Inc.; Notice of Service of Department of Community Affairs First Set of Interrogatories to Growth Restraint and Environm |
| Oct. 30, 1996 | Notice of Service of Department of Community Affairs First Set of Interrogatories to Becky Ayech; Notice of Service of Department of Community Affairs First Set of Interrogatories to Miakka Community Club, Inc.(filed via facsimile) filed. |
| Oct. 28, 1996 | Petitioner Lee F. Pallardy`s Notice of Voluntary Dismissal filed. |
| Oct. 18, 1996 | Response of Petitioners, Ansin and Gildersleeve, to Motion to Strike Filed by Respondent, Department of Community Affairs (for Case no. 96-3427GM) filed. |
| Oct. 16, 1996 | Response of Petitioners, Ansin and Gildersleeve, to Motion to Strike Filed by Respondent, Department of Community Affairs (for Case no. 96-3427GM) filed. |
| Oct. 11, 1996 | Petitioners` Motion for Extension of Time to Serve Answers to Respondent Sarasota County`s First Set of Interrogatories (filed via facsimile). |
| Oct. 08, 1996 | Petitioners` Motion for Extension of Time to Serve Answers to Respondent`s First Set of Interrogatories filed. (from S. Rees) |
| Oct. 07, 1996 | Order Granting Motion for Extension of Time sent out. (re: interrogatories) |
| Oct. 04, 1996 | Petitioner`s Motion for Extension of Time to Serve Answers to Respondent`s First Set of Interrogatories filed. |
| Oct. 03, 1996 | (DCA) Notice of Telephonic Hearing (filed via facsimile). |
| Oct. 03, 1996 | (Sarasota County) Notice of Compliance Agreement Negotiation (filed via facsimile). |
| Sep. 16, 1996 | Petitioner`s Objection to Respondent Department of Community Affairs` Motion to Strike (for Case no. 96-3581GM) filed. |
| Sep. 10, 1996 | (Petitioners) Petition to Intervene filed. |
| Sep. 09, 1996 | Joint Response to Notice of Assignment and Initial Order (for Case no. 96-3425GM) filed. |
| Sep. 05, 1996 | Order of Consolidation and Notice of Hearing sent out. (Consolidated cases are: 96-3425GM, 96-3427GM & 96-3581GM; Hearing set for Jan. 7-10 & 13-14, 1997; 9:00am; Sarasota) |
| Sep. 05, 1996 | Petitioners` Response to Motion to Dismiss; Affidavit as to Standing of Environmental Confederation of Southwest Florida, Inc.; Affidavit as to Standing of Growth-Restraint and Environmental Organization (GEO), Inc.; Cover Letter (filed via facsimile) rec |
| Sep. 03, 1996 | (Ross S. Burnaman) Notice of Related Cases; (DCA) Prehearing Statement (filed via facsimile). |
| Aug. 26, 1996 | (Sarasota County) Notice of Telephone Hearing filed. |
| Aug. 15, 1996 | Petitioners` Prehearing Statement filed. |
| Aug. 12, 1996 | Petitioners' Prehearing Statement (filed via facsimile). |
| Aug. 02, 1996 | Notice of Assignment and Initial Order sent out. |
| Aug. 01, 1996 | (Respondent) Motion to Dismiss (filed via facsimile). |
| Jul. 30, 1996 | Notification card sent out. |
| Jul. 25, 1996 | Notice of Related Cases (Related Cases Are 96-3425GM thru 96-3427GM) filed. |
| Jul. 22, 1996 | Cover Letter From Daniel J. Lobeck; Agency referral letter; Petition for Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 20, 1997 | Recommended Order | Evidence did not show that amendment to comprehensive plan was not in compliance with applicable rules and statutes. |
