STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
1000 FRIENDS OF FLORIDA, INC., | ) | |||
and ROSA DURANDO, | ) ) | |||
Petitioners, | ) | |||
) | ||||
vs. | ) | Case | No. | 06-4544GM |
) | ||||
PALM BEACH COUNTY and | ) | |||
DEPARTMENT OF COMMUNITY | ) | |||
AFFAIRS, | ) | |||
) | ||||
Respondents, | ) | |||
) | ||||
and | ) ) | |||
SALVATORE J. BALSAMO and | ) | |||
LANTANA FARM ASSOCIATES, INC., | ) | |||
) | ||||
Intervenors. | ) | |||
| ) |
RECOMMENDED ORDER
The final hearing in this case was held on October 6 through 8, 2008, in West Palm Beach, Florida, and on October 23 and 24, 2008, in Tallahassee, Florida, before Bram D.E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners 1000 Friends of Florida, Inc., and Rosa Durando:
Lisa Interlandi, Esquire Robert Hartsell, Esquire Richard Grosso, Esquire Everglades Law Center, Inc. 818 U.S. Highway 1, Suite 8
North Palm Beach, Florida 33408
For Respondent Department of Community Affairs:
Samuel Dean Bunton, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-7018
For Respondent Palm Beach County:
Amy Taylor Petrick, Esquire
Palm Beach County Attorney’s Office
301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401-4705
For Intervenors Salvatore J. Balsamo and Lantana Farm Associates, Inc.:
Gary K. Hunter, Jr., Esquire Gary P. Sams, Esquire Vinette D. Godelia, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
STATEMENT OF THE ISSUES
The issues in this case are whether the Palm Beach County Comprehensive Plan amendments which changed the future land use designations for a 97.55-acre parcel and a 26.23-acre parcel through the adoption, respectively, of Ordinance 2006-28 and
Ordinance 2006-29, are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2007).1
PRELIMINARY STATEMENT
On August 21, 2006, the County adopted Ordinance 2006-28 (Balsamo amendment) and Ordinance 2006-29 (Lantana Farm amendment), which, respectively, amended its Comprehensive Plan to change the future land use designations for a 97.55-acre parcel (Balsamo property) and a 26.23-acre parcel (Lantana Farms property) from Rural Residential, one unit per ten acres (RR-10) to Low Residential, one unit per acre (LR-1). On October 23, 2006, the Department of Community Affairs published a Notice of Intent to find Ordinances 2006-28 and 2006-29 “not in compliance.” On November 13, 2006, the Department filed a petition at DOAH to challenge the amendments.
Salvatore J. Balsamo, Lantana Farm Associates, Inc., 1000 Friends of Florida, Inc., and Rosa Durando filed petitions to intervene in the proceeding, which were granted.
In February 2007, the case was placed in abeyance to provide the parties an opportunity to settle their disputes. On March 14, 2008, following the Department’s execution of compliance agreements with the County, the Department published an Amended Notice of Intent to find Ordinance 2006-28 and Ordinance 2006-29 “in compliance.” 1000 Friends and Durando
filed an amended petition to intervene, and the parties were then realigned as they now appear in the case style.
Petitioners subsequently abandoned some of the allegations that they had made in their amended petition regarding the Balsamo amendment.
The final hearing was held in West Palm Beach and Tallahassee pursuant to the expeditious resolution provisions of Section 163.3189, Florida Statutes, which were invoked by Balsamo.
At the final hearing, the parties’ Joint Exhibits 1 through
57 were admitted into evidence. Petitioners presented the testimony of fact witnesses Joanne Davis and Rosa Durando, expert planning witnesses Charles Pattison, Lorenzo Aghemo, and Richard Post. Petitioners’ Exhibits 3, 4, 5, 9, 10 through 14, 16, 19, 20, 26, and 27 were admitted into evidence. The Department presented the expert planning testimony of
Richard Post. DCA Exhibit 1 was admitted into evidence. The County presented the expert planning testimony of Isaac Hoyos. County Exhibit 3 was admitted into evidence. Balsamo presented the expert planning testimony of Robert Bentz and Tom Beck.
Balsamo Exhibits 1, 2, 4, and 5 were admitted into evidence. Lantana Farm presented the expert planning testimony of Kiernan Kilday and Tom Beck. Lantana Farm Exhibit 2 was admitted into evidence.
The ten-volume Transcript of the final hearing was prepared and filed with DOAH. The parties timely filed Proposed Recommended Orders which were carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT PART I - GENERAL
The Parties
The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and amendments, and determining whether a plan or amendment is “in compliance.”
Palm Beach County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3187, Florida Statutes.
Salvatore J. Balsamo is the owner of the Balsamo property and the applicant for the Balsamo amendment.
Lantana Farm Associates, Inc., is the owner of the Lantana Farm property and the applicant for the Lantana Farm amendment.
Rosa Durando owns property and has resided since 1959 in unincorporated Palm Beach County, approximately one mile south of Lantana Road and half a mile west of State Road 7. She made comments to the County during the time beginning with the
transmittal hearing for the Balsamo and Lantana Farm amendments and ending with the adoption of the amendments.
Durando has been active for many years to preserve environmentally sensitive lands within Palm Beach County. She has a strong interest in growth management, water management, and environmental protection issues in the County.
1000 Friends of Florida, Inc., is a Florida not-for- profit corporation created in 1986 for the purpose of advocating the effective implementation of Chapter 163, Part II, Florida Statutes. Its main office is in Tallahassee. It also maintains an office in Palm Beach County, with a single employee, who is a planner.
1000 Friends has about 400 members who reside in, own property, or own or operate a business in Palm Beach County. That number constitutes a substantial number of its members.
1000 Friends submitted comments, recommendations, and objections to the County during the time beginning with the transmittal hearing for the Balsamo and Lantana Farm amendments and ending with the adoption of the amendments.
It was not shown that 1000 Friends has ever applied for or been issued a license or permit to operate a business in the County.
1000 Friends has been involved in many Palm Beach County planning issues. It has participated in local hearings,
advocated planning principles, distributed planning information to the citizens of the County, and has been a party in planning- related litigation.
The Decision Making Process
On April 5, 2006, the Board of County Commissioners held a public hearing to consider whether the Balsamo and Lantana Farm amendments should be approved for transmittal to the Department. The County planning staff recommended denial for several reasons, including its determinations that the need for the amendments and justification for the tier changes (tiers are discussed in detail below) was not adequately demonstrated, and that the proposed amendments would contribute to urban sprawl. However, the Board voted to transmit the Balsamo and Lantana Farm amendments to the Department.
The Department reviewed the amendments and issued its Objections, Recommendations and Comments (ORC) Report on
June 23, 2006. The ORC Report stated the Department’s objections to the amendments due to internal inconsistency, public facilities impacts, lack of data and analysis, and lack of need.
On August 21, 2006, the Board of County Commissioners held a public hearing to determine whether the Balsamo and Lantana Farm amendments should be adopted. The County planning
staff again recommended denial. The Board voted to adopt the amendments.
On October 20, 2006, the Department issued a Statement of Intent to find the Balsamo and Lantana Farm amendments “not in compliance.” The Statement of Intent identified several compliance issues, including internal inconsistency, the failure to conduct a tier study, lack of need, and urban sprawl. The Statement of Intent also alleged inconsistency with provisions of the State Comprehensive Plan and Strategic Regional Policy Plan.
In December 2007, the Department executed a compliance agreement with the County and Balsamo. In February 2008, the Department executed a compliance agreement with the County and Lantana Farm. The agreements indicate that the Department’s compliance issues had been resolved by the submission of additional data and analysis supporting the amendments. 1000 Friends and Durando did not join in the agreements.
On March 14, 2008, the Department issued an Amended Notice of Intent to find Ordinance 2006-28 and Ordinance 2006-29 “in compliance” and the parties were subsequently realigned as they now appear in the case style.
The Managed Growth Tier System
In addition to changing the land use designations for the Balsamo and Lantana Farm properties from RR-10 to LR-1, the challenged amendments change the County’s Tier Map to make the properties part of the Urban/Suburban Tier. They were formerly in the Rural Tier. The tier change is necessary because the
LR-1 land use designation is not permitted in the Rural Tier.
The County’s Managed Growth Tier System was created in 1999 and places all lands in the County into one of five tier classifications: Urban/Suburban, Exurban, Rural, Agricultural Reserve, and Glades, which are intended to define distinct geographical areas within the County that “allow for a diverse range of lifestyle choices, and livable, sustainable communities.”
The Urban/Suburban Tier and Rural Tier are described in the Future Land Use Element (FLUE) of the Comprehensive Plan as follows:
Urban/Suburban Tier: The Urban/Suburban Tier shall include all land within the Urban Service Area, as depicted on the Service Areas Map in the Map Series. These areas have a development pattern generally characterized as urban or suburban, considering the intensity and/or density of development. The Urban/Suburban Tier shall be afforded urban levels of service.
Rural Tier: The Rural Tier shall be located outside the Urban Service Area and east of the Water Conservation Area, Twenty Mile
Bend, and the J.W. Corbett Wildlife Management Area, and shall include large tracts of lands, as well as lands platted prior to the adoption of the 1989 Comprehensive Plan with a predominant density of 1 dwelling unit per 10 acres, but less than 1 dwelling unit per 5 acres.
These areas shall be afforded rural levels of service.
The Urban/Suburban and Rural Tiers are more fully described elsewhere in the FLUE as follows:
Urban/Suburban Tier. This tier is expected to accommodate the bulk of the population and its need for employment, goods and services, cultural opportunities, and recreation. It supports a variety of lifestyle choices, ranging from urban to residential estate; however, the predominant development form in the unincorporated area is suburban in character. The older communities are primarily in municipalities, within approximately two miles of the Atlantic Ocean. Most of the neighborhoods within the tier are stable and support viable communities. However, due to the period in which many of the coastal communities were built and the County’s efforts to keep pace with rapid growth in its western areas, some of the eastern areas did not receive a full complement of urban services.
Rural Tier. The Rural Tier includes agricultural land and rural settlements that range in density from primarily 1 dwelling unit per 5 acres to 1 dwelling unit per 20 acres. These areas support large agricultural operations as well as single- family homes with small family-owned agricultural businesses, including equestrian related uses. Due to the declining availability of land and the increase in population in the Urban and Exurban Tiers, the Rural Tier is beginning
to experience pressure for urban densities and nonresidential intensities normally associated with a more urban area. The strategies in the Rural Tier are established to protect and enhance rural settlements that support agricultural uses and equestrian uses.
The County’s Tier Map assigns tiers to lands within the municipalities, but the municipal governments are not subject to the tiers and their land use decisions do not have to be consistent with the provisions of the Palm Beach County Comprehensive Plan related to tiers. However, intergovernmental coordination, a part of the comprehensive planning process, requires that adjacent local governments consider such matters as the compatibility of land uses at jurisdictional boundaries. The Tier Re-designation Process
In 2005, the County amended the criteria for a tier re- designation to allow private applications for tier re- designations. Requirements were also added for a tier study to be conducted to determine whether the tier re-designation was justified and for a parcel to be contiguous to the tier to which it would be assigned. These requirements were added to discourage piecemeal development, urban sprawl, and land use incompatibility.
The Balsamo and Lantana Farm applications for tier re- designation were the first private applications reviewed by the County pursuant to the new criteria.
Tier re-designation is governed by Policy 1.1-b:
In addition to the criteria for amending a future land use designation, the County shall apply the following standards to allow for the redesignation of a Tier to respond to changing conditions.
The County shall not approve a change in tier boundaries unless each of the following conditions are met:
The area to be reassigned to another tier must be contiguous to the tier to which it would be assigned; and,
A Study must be conducted to determine the appropriate tier designation of the area and its surroundings, in order to avoid piecemeal or parcel-by-parcel redesignations. If a neighborhood plan or study recognized by the Board of County Commissioners includes the area and makes recommendations concerning tier boundaries, such neighborhood plan or study may serve as the Study required by this policy.
Additionally, the following factors shall be considered, as part of the required Study, to evaluate the merit of the potential Tier redesignation:
The availability of sufficient land to accommodate growth within the long range planning horizon, considering existing development approvals;
The need to balance future land uses, considering the impact of continued development on an area and/or its demographics, as identified through a Specific Area Plan within a Sector Plan or through the Community Planning Process;
For redesignations to the Urban/Suburban Tier, the necessity of designating additional land for urban/suburban
development in the particular location, considering any infill or redevelopment opportunities available within the Urban Redevelopment Area (URA) or Revitalization and Redevelopment Overlay (RR-O);
For any redesignation subtracting land from the Rural and/or Exurban Tiers, the impact on the lifestyle and character of these tiers, including maintaining physical contiguity of existing neighborhoods and land use compatibility;
The ability of the property to maximize the use of existing and/or planned public facilities and services under the proposed tier designation;
For redesignations to the Urban/Suburban Tier, the potential for the Tier redesignation to further County land use goals and objectives, such as mixed-use development in appropriate locations, provision and geographic dispersal of affordable and workforce housing and/or improvement of public transit; and,
The presence or absence of natural or built features which currently serve as, or have potential to serve as, logical demarcations between Tiers.
Some tier re-designation factors may warrant more weight than others in the review of a particular tier re- designation application. Policy 1.1-b does not indicate that a negative conclusion with respect one or more factors requires the denial of a requested tier re-designation. However, the County’s Planning Director stated that a project should meet “at least most” of the pertinent factors to justify approved.
PART II - BALSAMO
The Balsamo Property and Surrounding Land Uses
The Balsamo property is located on the north side of Northlake Boulevard, approximately .75 miles east of the intersection of Northlake Boulevard with Coconut Boulevard.
The property has been mostly cleared of vegetation.
It was actively farmed for vegetable production in the past, but is now being used as pasturage for cattle and goats.
The Balsamo property is located in a part of the County where the irregularly shaped boundaries of the unincorporated County, the City of Palm Beach Gardens, and the City of West Palm Beach either touch or come close to one another. Based on the Tier Map, it is also one of the few areas of the County where three tiers (in this case, Urban/Suburban, Exurban, and Rural) come together.
To the west and north of the Balsamo property is the Vavrus property, over 4,000 acres in size, consisting of improved pasture land and large wetland areas. The area of the Vavrus property that is contiguous to the Balsamo property on the west has a land use designation of RR-20, one unit per 20 acres. Other areas of the Vavrus property are designated RR-10.
To the east of the Balsamo property is a municipal golf course. The Vavrus property and the golf course are both
located within the City of Palm Beach Gardens. Their land use designations were assigned by the City.
Further east, on the north side of Northlake Boulevard, are two gated residential developments, Osprey Isles and Carleton Oaks. These developments consist of clustered, quarter-acre lots. They are within the jurisdiction of the County. They have a land use designation of LR-1, the same designation which the Balsamo amendment gives to the Balsamo property. In this same area are a cemetery and land designated Commercial Low/Office.
Osprey Isles, Carlton Oaks, the cemetery, and the commercial parcel are all within a relatively narrow Urban/Suburban “peninsula” extending north into a Rural Tier area of the City of Palm Beach Gardens. See Map LU 1.1 in the Comprehensive Plan.
South of the Balsamo property, across Northlake Boulevard, is Bayhill Estates, a gated golf course-oriented, residential community with a density of one unit per two acres. West of Bayhill Estates is the Acreage, an old subdivision with about 40,000 residents and developed at 1 unit per 1.25 acres with individual water wells and septic tanks. Bayhill Estates and the Acreage are within the Exurban Tier.
Southwest of the Balsamo property, and across Northlake Boulevard from the Vavrus tract, are two institutional
land uses. The closer one is the site for a proposed new post office. Further west is Pierce Hammock Elementary School.
Southeast of the Balsamo property is the Rustic Lakes development, a subdivision with a land use designation of RR-5 (one unit per five acres). Rustic Lakes is in the Rural Tier. Along the northeast corner of Rustic Lakes, fronting on Northlake Boulevard, is a parcel designated Commercial Low/Office, which is also in the Rural Tier.
East of Rustic Lakes is the Ibis development, the largest gated, golf course development in the area, which consists of approximately 2,000 clustered homes with a gross density of 1.25 dwelling units per acre. At the northeast corner of the Ibis development, fronting on Northlake Boulevard, are the Shoppes of Ibis, an 80,000 square-foot neighborhood commercial retail center, anchored by a Publix grocery store and with other uses, including a gas station, banks and restaurants. Both Ibis and the Shoppes at Ibis are located within the City of West Palm Beach and in the Urban/Suburban Tier.
Northlake Boulevard is a four-lane, divided, arterial roadway programmed for expansion to six lanes.
Potable water and sewer lines are located along the southern boundary of the Balsamo property. Schools, emergency medical services, fire, and police services are also available to serve the property.
Internal Consistency Policy 1.1-b 1(a) - Contiguity
Petitioners contend that the Balsamo amendment is inconsistent with FLUE Policy 1.1-b 1(a), which states that a tier boundary shall not be changed unless the land to be assigned to another tier is contiguous to the tier to which it would be assigned. Petitioners assert that the Balsamo property is not contiguous to the Urban/Suburban Tier because it is not physically touching the tier.
The term “contiguous” is not defined in the context of the FLUE policies related to tier re-designation. Petitioners, themselves, offered testimony about the dictionary meanings of “contiguous” that included the accepted meanings of “in close proximity,” “near,” and “close.”
Petitioners referred to some statements of the County planning staff that were made at the time the contiguity requirement was added to the FLUE, which suggest that the term “contiguous” was intended to mean physical touching. However, these statements were not made in the context of a discussion of whether any other meaning might sometimes be appropriate. The County has not abandoned the notion that lands to be assigned to a tier usually must be physically touching the tier to which it would be assigned.
The County used a “functional contiguity” analysis in determining that the Balsamo property was contiguous to the Urban/Suburban Tier. The County concluded that, because the property was separated from the tier boundary by land within a municipality (Palm Beach Gardens) and the intervening municipal land use is suburban in character (municipal golf course), the Balsamo property was functionally contiguous to the Urban/Suburban Tier.
Although a “functional contiguity” approach might be reasonable under some circumstances, its application in the Balsamo amendment is inconsistent with the Managed Growth Tier System. Here, instead of reassigning both the Balsamo property and the golf course to the Urban/Suburban Tier, the County determined that the golf course should remain in the Rural Tier and leap-frogged over the golf course to assign only the Balsamo property to the Urban/Suburban Tier.
Respondents emphasize that the County has no regulatory jurisdiction over the municipal golf course. They suggest, therefore, that its Rural Tier designation can be ignored or discounted. However, that is not how the County’s Tier System was designed. The County chose to recognize and account for land uses on adjacent municipal lands as part of the Tier System, not because the County could thereby control the future uses of municipal lands, but because recognizing adjacent
uses within the municipalities furthered the purpose of the Tier System to “allow for a diverse range of lifestyle choices, and livable, sustainable communities.” Therefore, the tier assignments given to municipal lands cannot be ignored or discounted.
Respondents also emphasize that the golf course use is suburban in character and, therefore, is not incompatible with the LR-1 land use designation for the Balsamo property.
However, that does not erase the inconsistency stated above. The golf course is in the Rural Tier and is not incompatible with rural land uses. In approving the Balsamo amendment while preserving the Rural Tier designation for the golf course, the County acted inconsistently, and its action shows a failure to review Balsamo’s requested tier re-designation comprehensively as required by Policy 1.1-b, with attention to the lands surrounding the Balsamo property and consideration of their appropriate tier designations.
Policy 1.1-b 1(b) – The Study
Petitioners contend that the Balsamo amendment is inconsistent with Policy 1.1-b 1(b) which requires that a study be conducted for any tier re-designation to determine the appropriate tier designation of the “area and its surroundings.” The policy contains a statement that, if any property not within a Sector Plan area is removed from a tier through the future
land use amendment process, “the Planning Division shall conduct a Study” to determine “if and how tier boundaries need to be further adjusted in the area of the property.”
Petitioners argue that this means the study must be initiated and produced by the County planning staff, which was not done for the Balsamo amendment. The County’s position, on the other hand, is that the requirement for a tier re- designation study can be satisfied by an applicant’s data and analysis and other information produced during the amendment process and reviewed by the County planning staff.
Petitioners attack the data and analysis submitted by Balsamo as lacking the comprehensiveness that is required for a tier study. However, that is an attack on the content of Balsamo’s study. Petitioners did not show that it is impossible for an applicant’s data and analysis to be comprehensive.
The County interpretation of its study requirement to allow for applicant-generated studies does not impair the achievement of the goals, objectives, or policies of the Comprehensive Plan because the interpretation does not prevent the investigation, presentation of data, or analysis of all relevant factors that were intended by the requirement for a tier re-designation study.
The County’s allowance for an applicant-generated study also avoids the disputes that could arise if the County
delays in conducting the study, or if the applicant wants to augment a County study.2
Policy 1.1-b 2 – Sufficiency of the Study
In this case, however, the study presented by Balsamo was not the comprehensive analysis required by Policy 1.1-b. The data and analysis submitted by Balsamo almost exclusively addresses the suitability of the LR-1 land use designation for the Balsamo property and its compatibility with other land uses
in the area. It does not adequately address the appropriateness of other land use designations in the area, how other land uses in the area have been affected by changed conditions, how other land uses in the Rural Tier would be affected by the Balsamo amendment, and whether other tier re-designations are justified for the area.
Balsamo’s allegation that there is a deficit of residential land uses in the County tends to contradict his contention that his tier re-designation study is sufficiently comprehensive. The Balsamo study does not address the deficit comprehensively. If there is a deficit, it should be addressed comprehensively by the County rather than by the piecemeal granting of private applications to convert rural lands to allow for urban densities at the fringe of urban infrastructure and services.
In a comprehensive tier study, if higher residential densities are needed, the County can also consider where best to increase densities.
Before discussing how the Balsamo amendment measures against the seven tier re-designation factors in Policy 1.1-b.2, it is noted that the policy begins with a statement that the tier re-designation process was established “to respond to changed conditions.” Balsamo’s argument that there are changed conditions that justify the requested tier re-designation is not persuasive because the land use changes in the area have not changed the fundamental character of the Balsamo property as the beginning of the rural and agricultural area that extends west.
Balsamo relies in large part on changes that have occurred in the adjacent tiers. Lands that are located at the boundary of a tier, by definition, will be located next to lands where different uses currently exist or are allowed to develop. Recent development activities in the adjacent tier, if in conformance with the land use designations for lands in the tier, should usually not be given great weight when considering whether changed conditions justify a tier change.3
More important changed conditions would include an increase or decrease in the need for a certain type of land use, new conditions that have the effect of isolating a parcel or an
area from similar lands uses, or other circumstances that materially reduce the appropriateness of the allowed uses. Policy 1.1-b 2 – Tier Re-designation Factors
The first of the seven factors in Policy 1.1-b is “The availability of sufficient land to accommodate growth within the long range planning horizon, considering existing development approvals.”
In his application for the land use change and tier re-designation, Balsamo claimed that there is a need to increase the allowable density on the Balsamo property from 10 to 97 dwelling units because of the housing demand created by the Scripps Research Institute and “ancillary development” on the Vavrus property. These projects, however, were substantially modified and are no longer being proposed in the vicinity of the Balsamo property.
As part of its periodic Evaluation and Appraisal Report (EAR), the County reviews the Managed Growth Tier System to evaluate the need to re-designate lands in response to any projected increases in population growth within the long-range planning horizon. This evaluation process is supposed to include a consideration of the criteria in Policy 1.1-b. The 2004 EAR concluded that the County’s projected population by 2025 “can be accommodated on developable lands under the current adopted Plan,” and, therefore, “the western boundaries of the
coastal tiers do not need to be expanded further west in order to accommodate projected population and development activities beyond the County’s planning horizon of 2025.” The term “coastal tiers,” is not used in the Comprehensive Plan, but is used by the County to refer to all of the tiers that are east of the conservation areas and the Everglades Agricultural Area, including the Urban/Suburban Tier.4
Balsamo presented expert opinions that the buildout date for the County was not 2025, but closer to 2015, based on needs assessments conducted in conjunction with the Scripps project and another large development proposal (Callery Judge Groves).5
The opinions expressed that the allowable density on the Balsamo property needs to be increased to accommodate an imminent housing deficit in the County are given little weight because there is insufficient supporting data in the record that can be reviewed to determine the credibility of the opinions.6 The opinions were not based on comprehensive need assessments conducted by the expert witnesses who expressed the opinions, but on need assessments they had seen that were produced by other consultants.
The need assessments referred to were conducted in the context of unusually large mixed-use projects that were never developed. Many of the assumptions supporting the conclusions
of the need assessments are no longer accurate. Which conclusions in the need assessments might still be reliable cannot be determined from the record. The nation’s economic downturn has reduced population growth in the County. In contrast, the needs assessments cited by Balsamo’s planning experts were conducted during a housing market boom.
It is significant that the County’s planning staff and the Department’s planning staff, who were aware of these previous need assessments when they reviewed the Balsamo amendment, determined that there was no need to increase residential density on the Balsamo property.
The first tier re-designation factor does not support the Balsamo amendment.
The second tier re-designation factor is “The need to balance future land uses, considering the impact of continued development on an area and/or its demographics.” There are a variety of land uses in the area of the Balsamo property, but there is currently some imbalance between residential and non- residential uses, with a need for more non-residential uses. The requested LR-1 land use designation for the Balsamo property would worsen to some degree the current imbalance of uses.
The second tier re-designation factor does not support the Balsamo amendment.
The third tier re-designation factor is “the necessity of designating additional land for urban/suburban development in the particular location, considering any infill or redevelopment opportunities in the Urban Redevelopment Area (URA) or Revitalization and Redevelopment Overlay (RR-O).”
Petitioners did not identify or describe the infill or redevelopment opportunities in the URA and RR-O, but argued that any development outside of the URA and RR-O inhibits the County’s objectives regarding these two areas. The record evidence is ambiguous with regard to whether this factor includes a consideration of infill opportunities elsewhere in the Urban/Suburban Tier. Petitioners had the burden of proof and failed to demonstrate that infill opportunities elsewhere in the Urban/Suburban Tier are a valid consideration under this factor. The Balsamo amendment would have little or no effect on infill opportunities in the URA and RR-O.
The Balsamo amendment is neutral with respect to the third tier re-designation factor.
The fourth tier re-designation factor is “the impact on the lifestyle and character” of the Rural Tier.
In 1998, the Western Northlake Corridor Land Use Study (WNCLUS) was produced. The WNCLUS was a joint effort of the County and the Cities of Palm Beach Gardens and West Palm Beach to examine existing land use patterns and future land uses along
Northlake Boulevard, west of the West Palm Beach Water Catchment Area, and south of the Beeline Highway, an area that includes the Balsamo property. The purpose of the WNCLUS was to determine the appropriate land uses in the area that would “preserve and enhance the rural character, while recognizing and planning for limited urban development.”
Balsamo asserts that the WNCLUS is outdated and “inappropriate as data and analysis” because public water and sewer lines have been extended further west than they existed in 1998. Neither this change, nor the others noted by Balsamo, negate the general relevance of the findings and recommendations of the WNCLUS, which are still worth considering.
The WNCLUS concluded that, “The data and analysis do not support the conversion of rural residential land to an urban density within the Planning Horizon,” and “[t]he rural lands within the study area should retain the RR-10 or RR-20 land use designations.”
Much of Balsamo’s evidence addressed the proposition that the LR-1 land use designation is compatible with, and even more like, nearby land uses. Petitioners believe the LR-1 land use is incompatible with the adjacent rural and agricultural land uses. Changing the land use designation of the Balsamo property from RR-10 to LR-1, alone, would not create significant incompatibility with other land uses in the Rural Tier in this
area of the County. However, by reducing the total area of rural lands in this portion of the Rural Tier, and by placing urban density in this location, the amendment detracts to a small degree from the area’s “lifestyle and character.” The changes that have occurred near the Balsamo property have not isolated it from other rural and agricultural lands nor have they materially reduced the appropriateness of its use for agriculture or rural residential development.
Petitioners contend that the Balsamo amendment would create a precedent for the re-designation of other Rural Tier lands that would eventually destroy the rural character of the area. However, the other Rural Tier lands near the Balsamo property are within the jurisdiction of Palm Beach Gardens. The Balsamo precedent would have to have its effect on the land use decisions of the City of Palm Beach Gardens. It is too speculative to make a factual finding that the Balsamo amendment would result in future City actions that adversely
affect the character and lifestyle of rural lands in the area of the Balsamo property.
The fourth tier re-designation factor does not support the Balsamo amendment.
The fifth tier re-designation factor is “The ability of the property to maximize the use of existing and/or planned public facilities and services.”
Public facilities and services are available to the Balsamo property and, therefore, the fifth tier re-designation factor supports the Balsamo amendment.
The sixth tier re-designation factor is whether the re- designation furthers County land use goals and objectives, “such as mixed-use development in appropriate locations, provision and geographic dispersal of affordable and workforce housing and/or improvement of public transit.”
Balsamo does not further any goals and objectives related to mixed-use development or improvement of public transit. Balsamo would have to comply with the County’s minimum workforce housing requirement, applicable to all new developments.
Petitioners assert that it is inconsistent with the Tier System to put workforce housing in the Rural Tier, but the Balsamo amendment would not put workforce housing in the Rural Tier. The amendment would put workforce housing on the Balsamo property in the Urban/Suburban Tier.
Under generally accepted planning principles, placing affordable housing far from job centers and the services usually associated with persons of low or moderate income is not “preferred.”
The Balsamo amendment is neutral or slightly positive with respect to the sixth tier re-designation factor, but only
because it is assumed that this factor was not intended to involve a balancing of any goals and objectives that are furthered by the amendment with other goals and objectives that are impaired.
The seventh tier re-designation factor is “The presence or absence of natural or built features which currently serve as, or have the potential to serve as, logical demarcations between tiers.” Petitioners contend that the Balsamo amendment creates an irregular tier boundary with no clear natural or built feature to serve as a logical demarcation.
Although the County included this factor to be considered in the review of a tier re-designation proposal, it must be considered in the context of a tier system in which the more fundamental objective is to delineate areas with “common characteristics, including physical development patterns and service provision,” which create “communities that share common characteristics” and “lifestyles.” Many of the current tier boundaries are based on natural and built features, but some boundaries follow property lines. In the vicinity of the Balsamo property, the tier boundaries are based on a combination of a built feature, Northlake Boulevard, and property boundaries.
The Balsamo amendment would create a small, isolated piece of Urban/Suburban Tier and, therefore, it detracts from the objective to have the tier boundaries be as regular as possible.
The boundary change is not justified by a need to better delineate the communities or lifestyles in the area.
The seventh tier re-designation factor does not support the Balsamo amendment.
Overall, the tier re-designation for the Balsamo property is not justified under the tier re-designation factors in Policy 1.1-b.
Policy 2.2-b
FLUE Policy 2.2-b requires demonstration of need for any proposed future land use change:
Before approval of a future land use amendment, the applicant shall provide an adequate justification and a demonstrated need for the proposed future land use, and for residential density increases demonstrate that the current land use is inappropriate.
An adequate justification and demonstrated need for the land use change from RR-10 to LR-10 for the Balsamo property was not provided by Balsamo. The current RR-10 land use designation was not shown to be inappropriate for the property. Policy 2.2-c
Policy 2.2-c states that the County shall use the “County Directions” in the introduction section of the FLUE to guide future land use decisions. The County Directions are general statements that are not identified as goals, objectives, or policies of the Comprehensive Plan.
Petitioners claim that the Balsamo amendment is inconsistent with “Policy 2.2-c, FLUE Section 1-A – C,” but sections A and B are not part of the County Directions, which are only in section C. Section C includes a statement that the County will direct the location, type, intensity, and form of development that respects the characteristics of a particular area, prevents urban sprawl, and provides public facilities and services in a cost-efficient manner.
For the reasons set forth above, the County’s approval of the Balsamo amendment is inconsistent with Policy 2.2-c. Policy 2.2.1-b
Petitioners contend that the Balsamo amendment is inconsistent with Policy 2.2.1-b of the FLUE, which requires that residential land uses be protected from encroachment of incompatible future land uses. The more persuasive evidence does not show that the Balsamo amendment would be inconsistent with Policy 2.2.1-b.
Urban Sprawl
Policy 1.1-d states that, “The County shall not modify the Tier System if the redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006.5, [sic] Florida Administrative Code.” Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl to be considered in the review of a comprehensive plan
amendment to determine whether the presence of multiple indicators “collectively reflect a failure to discourage urban sprawl.” Petitioners claim that the Balsamo amendment “triggers” six of the indicators.7 Only these six indicators are discussed below.
The first indicator is the designation for development of “substantial areas of the jurisdiction” as low-intensity,
low-density, or single-use development or uses in excess of demonstrated need.” Fla. Admin. Code R. 9J-5.006(5)(g)1.
Balsamo argued that his property represents a tiny fraction of the total area of the County, so that this indicator cannot be triggered by the Balsamo amendment. However, the wording of the rule does not make the indicator applicable exclusively to an amendment that would, by itself, designate a substantial land area for low-density uses. The wording allows for a consideration of whether an amendment contributes to the local government’s total low-density land uses “in excess of demonstrated need.”
Petitioners did not prove that there is an excessive amount of low-density residential development in the County.
The second indicator is the designation of urban development in “radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.” Fla. Admin. Code R. 9J-5.006(5)(g)3.
Petitioners contend that the Balsamo amendment would contribute to a strip urban pattern. The Balsamo amendment would extend a suburban use along the north side of Northlake Boulevard. If every extension of a suburban or urban use qualifies as a “strip,” this indicator would be rendered meaningless. The addition of the Balsamo amendment to the existing configuration of land uses in the area does not create strip sprawl.
The third indicator is the failure to provide a “clear separation between rural and urban uses.” Fla. Admin. Code R. 9J-5.006(5)(g)9.
This indicator is triggered because the Balsamo amendment would result in an isolated area of urban use within the Rural Tier. The boundary between the Balsamo property and contiguous Rural Tier lands would be Balsamo’s property lines. The municipal golf course is a better separation and buffer between urban and rural uses in this area than the Balsamo property with a LR-1 land use designation.
The fourth primary indicator is the discouragement of infill development or the redevelopment of existing neighborhoods and communities. Fla. Admin. Code R. 9J- 5.006(5)(g)10.
The Balsamo amendment discourages infill and redevelopment because it is “outfill.” It diminishes the
effectiveness of existing incentives and measures to promote infill and urban redevelopment within the Urban/Suburban Tier by allowing urban development to go “outside.”
The fifth indicator is failure to encourage an attractive and functional mix of uses. Fla. Admin. Code R. 9J- 5.006(5)(g)11.
The Balsamo amendment does not provide for a mixed- use development and there is no shortage of LR-1 and comparable land uses in the area of the Balsamo property. Therefore, the Balsamo amendment does not encourage a mix of uses. Furthermore, the Balsamo amendment detracts from the existing “functional mix” of uses because it would eliminate the buffer now provided by the golf course and is less compatible with the adjacent rural lands if developed at one unit per acre.
The sixth indicator of urban sprawl is causing “poor accessibility among linked or related land uses.” Fla. Admin. Code R. 9J-5.006(5)(g)12.
There are no directly linked land uses adjacent to the Balsamo property, so poor accessibility between linked uses is not an applicable consideration. Northlake Boulevard gives the Balsamo property access to non-residential uses east of the property.
Several of the indicators of urban sprawl in Florida Administrative Rule 9J-5.006(5) could also describe poorly
planned future land use amendments that do not constitute urban sprawl. Although the Balsamo amendment exhibits some of the indicators of urban sprawl, Petitioners did not prove that the presence of these indicators collectively reflect a failure of the County to discourage urban sprawl.
Strategic Regional Policy Plan
Petitioners claim that the Balsamo amendment is inconsistent with certain provisions of the Strategic Regional Policy Plan adopted by the Treasure Coast Regional Planning Council. In the Pre-hearing Stipulation, Petitioners identified three provisions at issue. Petitioners are held to their stipulation and no finding is made with regard to the other provisions that Petitioners addressed in their Proposed Recommended Order.
Regional Policy 9.1.1.1 is to “Encourage patterns of development and programs which reduce dependency on the automobile, encourage and accommodate public transit, and reduce the overall use of fossil fuels.” The Balsamo amendment does not further this regional policy because it places more residences distant from the urban center and other vehicle destinations. However, Petitioners did not show that the adverse effect of the Balsamo amendment, in this respect, would be significant.
Regional Policy 7.1.3.1 is to “Encourage patterns and forms of development and redevelopment that maximize public
transportation alternatives, minimize the use of the Region’s collector and arterial roadway network, and reduce the total amount of daily vehicle miles traveled.” For the same reason stated above, the Balsamo amendment does not further this regional policy. However, Petitioners did not show that the adverse effect of the Balsamo amendment, in this respect, would be significant.
Regional Strategy 2.1.2 is to “discourage sprawling development patterns to ensure compatibility of urban areas, natural preserves and open spaces.” The Balsamo amendment will detract from the rural character and lifestyle in this area of the Rural Tier, but Petitioners did not show that there would be any significant incompatibility.
State Comprehensive Plan
In their amended petition, Petitioners adopted by reference the Department’s original position that the Balsamo amendment was inconsistent with provisions of the State Comprehensive Plan set forth in Chapter 187, Florida Statutes. However, in the Pre-Hearing Stipulation, Petitioners did not identify consistency with the State Comprehensive Plan as remaining at issue. Petitioners are held to their stipulation and, therefore, no findings regarding the State Comprehensive Plan are made here.
PART III – LANTANA FARM
The Lantana Farm Property and Surrounding Land Uses
The Lantana Farm property is located approximately 1500 feet west of the intersection of Lantana Road and State Road
The property is three quarters of a mile long from its eastern to western boundary, but only 369 feet deep at its widest point.
The property was in active agricultural use in the past but is currently vacant. A drainage ditch runs along the Property’s south boundary.
The Lantana Farm property is within the Rural Tier, as are lands to the east, south, and west of the property. The Lantana Farm property shares a boundary with the Urban/Suburban Tier along the property’s northern border. It is a quarter of a mile west of the Urban/Suburban Tier boundary formed by SR 7.
Lantana Road extends west of SR 7 to a point near the middle of the northern boundary of the Lantana Farm property.
It is not all paved and does not appear to be a County maintained road.
The land uses north of the Lantana Farm property, within the Urban/Suburban Tier, are designated LR-1, but are developed at various densities between about .5 and 3.0 units per acre.
To the east, between the Lantana Farm property and the Urban/Suburban Tier boundary at SR 7, are a four-acre parcel and a one-acre parcel, both with RR-10 land use designations. The four-acre parcel is zoned General Commercial. General Commercial zoning is not allowed within the Rural Tier, but the parcel was zoned before the County implemented its Managed Growth Tier System.
These two parcels are included with the Lantana Farm parcel in the Lantana Farm amendment and would be placed in the Urban/Suburban Tier. However, the parcels still retain their RR-10 land use designations. The RR-10 land use is not an allowed use within the Urban/Suburban Tier. There was no explanation given for why the land use designations for these two parcels were not changed as part of the Lantana Farm amendment. It was simply stated that these discrepancies would be corrected later.
South of the Lantana Farm property are three parcels of land, all with RR-10 land use designations. Two of the parcels, each approximately 35 acres in size, have television broadcasting antennas located on them. The other parcel is an 80-acre commercial wholesale nursery with warehouses, loading structures, and growing areas. Further south, is the Heritage Farms residential subdivision which has an RR-10 land use designation, but is developed at an average of one unit per five
acres, and the South Florida Area National Cemetery, which has an RR-10 designation.
To the west of the Lantana Farm property is the Homeland subdivision with an RR-5 land use designation (one unit per five acres). The Lantana Farm property is separated from Homeland by a power line easement and a canal.
Commercial and industrial uses in the area include industrial warehouse uses extending from the easternmost boundary of the Lantana Farm property, commercial uses and a gas station at the northwest intersection of SR 7 and Lantana Road, a Super Target at the northeast corner of the intersection, and other commercial uses along SR 7.
Public water and sewer lines are near the Lantana Farm property. Schools, emergency medical services, fire and police services are also available to serve the property.
Internal Consistency Policy 1.1-b 1(b) – The Study
Petitioners contend that the Lantana Farm amendment is inconsistent with Policy 1.1-b 1(b) which requires that a study be conducted for any tier re-designation to determine the appropriate tier designation of the “area and its surroundings.” The policy contains a statement that, if any property not within a Sector Plan area is removed from a tier through the future land use amendment process, “the Planning Division shall conduct
a study” to determine “if and how tier boundaries need to be further adjusted in the area of the property.”
Petitioners argue that this means the study must be initiated and produced by the County planning staff, which was not done for the Lantana Farm amendment. The County’s position, on the other hand, is that the requirement for a tier re- designation study can be satisfied by an applicant’s data and analysis and other information produced during the amendment process and reviewed by the County planning staff.
Petitioners attack the data and analysis submitted by Lantana Farm as lacking the comprehensiveness that is required for a tier study. However, that is an attack on the content of Lantana Farm’s study. Petitioners did not show that it is impossible for an applicant’s data and analysis to be comprehensive.
The County interpretation of its study requirement to allow for applicant-generated studies does not impair the achievement of the goals, objectives, or policies of the Comprehensive Plan because the interpretation does not prevent the investigation, presentation of data, or analysis of all relevant factors that were intended by the requirement for a tier re-designation study.
The County’s allowance for an applicant-generated study also avoids the disputes that could arise if the County
delays in conducting the study, or if the applicant wants to augment a County study.8
Policy 1.1-b.2 – Sufficiency of the Study
In this case, however, the study presented by Lantana Farm was not the comprehensive analysis required by
Policy 1.1-b. The data and analysis submitted by Lantana Farm almost exclusively addresses the suitability of the LR-1 land use designation for the Lantana Farm property and its compatibility with other land uses in the area. It does not adequately address the appropriateness of other land use designations in the area, how other land uses in the area have been affected by changed conditions, how other land uses in the Rural Tier would be affected by the Lantana Farm amendment, and whether other tier re-designations are justified for the area.9
Lantana Farm’s allegation that there is a deficit of residential land uses in the County tends to contradict its contention that the tier re-designation study is sufficiently comprehensive. The Lantana Farm study does not address the deficit comprehensively. If there is a deficit, it should be addressed comprehensively by the County rather than by the piecemeal granting of private applications to convert rural lands to allow urban densities at the fringe of urban infrastructure and services.
In a comprehensive tier study, if higher residential densities are needed, the County can consider where best to increase densities.
Before discussing how the Lantana Farm amendment measures against the seven tier re-designation factors in Policy 1.1-b.2, it is noted that the policy begins with a statement that the tier re-designation process was established
“to respond to changed conditions.” Lantana Farm relies in part on the changes that have occurred in the adjacent Urban/Suburban Tier. Lands that are located at the boundary of a tier, by definition, will be located next to lands where different uses currently exist or are allowed. Therefore, recent development activities in the adjacent tier, if in conformance with the land use designations for lands in the tier, usually should not be given great weight when considering whether changed conditions near a parcel justify a tier change.
More important changed conditions would include an increase or decrease in the need for a certain type of land use, new conditions that have the effect of isolating a parcel or an area from similar lands uses, or other circumstances that materially reduce the appropriateness of the allowed uses. Policy 1.1-b.2 – Tier Re-designation Factors
The first of the seven factors in Policy 1.1-b is “The availability of sufficient land to accommodate growth
within the long range planning horizon, considering existing development approvals.”
As part of its periodic Evaluation and Appraisal Report (EAR), the County reviews the Managed Growth Tier System to evaluate the need to re-designate lands in response to any projected increases in population growth within the long-range planning horizon. This evaluation process is supposed to include the consideration of the criteria in Policy 1.1-b. The 2004 EAR concluded that the County’s projected population by 2025 “can be accommodated on developable lands under the current adopted Plan,” and, therefore, “the western boundaries of the coastal tiers do not need to be expanded further west in order to accommodate projected population and development activities beyond the County’s planning horizon of 2025.” The term “coastal tiers,” is not used in the Comprehensive Plan, but is used by the County to refer to all of the tiers that are east of the conservation areas and the Everglades Agricultural Area, including the Urban/Suburban Tier.10
Lantana Farm presented expert opinions that the buildout date for the County was not 2025, but closer to 2015, based on needs assessments conducted in conjunction with the Scripps project and another large development proposal (Callery Judge Groves).
The opinions expressed that the allowable density on the Lantana Farm property is needed to accommodate an imminent housing deficit in the County are given little weight because there are insufficient supporting data in the record that can be reviewed to determine the credibility of the opinions.11 The opinions were not based on comprehensive need assessments conducted by the expert witnesses who expressed the opinions, but on need assessments they had seen that were produced by other consultants.
The need assessments referred to were conducted in the context of unusually large mixed-use projects that were never developed. Many of the assumptions supporting the conclusions of the need assessments are no longer accurate. Which conclusions of the need assessments might still be reliable cannot be determined from the record. The Nation’s economic downturn has reduced population growth in the County. In contrast, the needs assessments cited by Lantana Farm’s planning experts were conducted during a housing market boom.
It is significant that the County’s planning staff and the Department’s planning staff, who were aware of these previous need assessments when they reviewed the Lantana Farm amendment, determined that there was no need to increase residential density on the Lantana Farm property.
The first tier re-designation factor does not support the Lantana Farm amendment.
The second tier re-designation factor is “The need to balance future land uses, considering the impact of continued development on an area and/or its demographics, as identified through a Specific Area Plan within a Sector Plan or through the Community Planning process.” Because the Lantana Farm property is not addressed in any such specific plan, this factor is not applicable.
The third tier re-designation factor is “the necessity of designating additional land for urban/suburban development in the particular location, considering any infill or redevelopment opportunities in the Urban Redevelopment Area (URA) or Revitalization and Redevelopment Overlay (RR-O).”
Petitioners did not identify or describe the infill or redevelopment opportunities in the URA and RR-O, but argued that any development outside of the URA and RR-O inhibits the County’s objectives regarding these two areas. The record evidence is ambiguous with regard to whether this factor includes a consideration of infill opportunities elsewhere in the Urban/Suburban Tier. Petitioners had the burden of proof and failed to demonstrate that infill opportunities elsewhere in the Urban/Suburban Tier are a valid consideration under this factor.
The Lantana Farm amendment would have little or no affect on the URA and RR-O.
The Lantana Farm amendment is neutral with respect to the third tier re-designation factor.
The fourth tier re-designation factor is “the impact on the lifestyle and character” of the Rural Tier.
The existence of a genuine agricultural “lifestyle” in this area of the Rural Tier was not shown. The land uses surrounding the Lantana Farm property cause it (and the wholesale nursery site) to be somewhat isolated from other agricultural uses. The size and dimensions of the Lantana Farm property limit the kinds of agricultural operations it can accommodate. The property is also isolated from other RR-10 developments. The other residential developments in the Rural Tier are more RR-5 in character and “lifestyle” than RR-10.
However there is a rural residential lifestyle and character in this area. The LR-1 land use designation for Lantana Farm property will detract to a small degree from the rural residential lifestyle and character.
Petitioners contend that the Lantana Farm amendment will lead to other tier re-designations that, together, would substantially detract from the rural lifestyle and character of the Rural Tier in this area. However, there are a few factors, primarily the frontage along the Lantana Road extension, that
create a material distinction between the properties included in the Lantana Farm amendment from the parcels to the south.
Therefore, it is too speculative to find that the Lantana Farm amendment would lead to the re-designation of the southern parcels from the Rural Tier to the Urban/Suburban Tier.
The fourth tier re-designation factor does not support the Lantana Farm amendment.
The fifth tier re-designation factor is “The ability of the property to maximize the use of existing and/or planned public facilities and services.”
Public facilities and services are currently available to the Lantana Farm property, except that the Lantana Road extension, a partially unpaved road, is not currently suitable to serve increased residential densities.
The Lantana Farm amendment is neutral or somewhat supported by the fifth tier re-designation factor.
The sixth tier re-designation factor is whether the tier re-designation would further County land use goals and objectives, “such as mixed-use development in appropriate locations, provision and geographic dispersal of affordable workforce housing and/or improvement of public transit.”
Lantana Farm would comply with the County’s minimum workforce housing requirements and provide two affordable housing units out of the 26 dwelling units on the property. All new
residential developments must comply with the workforce housing requirement. The other identified County land use goals and objectives are not furthered by the Lantana Farm amendment.
Petitioners assert that it is inconsistent with the Tier System to put workforce housing in the Rural Tier, but the Lantana Farm amendment would not put workforce housing in the Rural Tier. The amendment would put workforce housing on the Lantana Farm property in the Urban/Suburban Tier.
Under generally accepted planning principles, placing affordable housing far from job centers and the services usually associated with persons of low or moderate income is not “preferred.”
The Lantana Farm amendment is neutral or slightly positive with respect to the sixth tier re-designation factor, but only because it is assumed that this factor was not intended to involve a balancing of any goals and objectives that are furthered by the amendment with other goals and objectives that are impaired.
The seventh tier re-designation factor is “The presence or absence of natural or built features which currently serve as, or have the potential to serve as, logical demarcations between tiers.”
Although the County included this factor to be considered in the review of a tier re-designation proposal, it
must be considered in the context of a system in which the more fundamental objective is to delineate areas with “common characteristics, including physical development patterns and service provision,” which create “communities that share common characteristics” and “lifestyles.” Many of the current tier boundaries are based on natural and built features, but some of the boundaries coincide with property lines.
In the vicinity of the Lantana Farm property, the tier boundaries are built features -- roadways and a canal. The Lantana Farm amendment would not make the tier boundary in this area more definite or more regular. It would make the boundary less clearly demarked and harder to maintain.
The seventh tier re-designation factor does not support the Lantana Farm amendment.
Overall, the tier re-designation for the Lantana Farm property is not justified under the tier re-designation factors in Policy 1.1-b.
Policy 2.2-b
FLUE Policy 2.2-b requires a demonstration of need for any proposed future land use change:
Before approval of a future land use amendment, the applicant shall provide an adequate justification and a demonstrated need for the proposed future land use, and for residential density increases demonstrate that the current land use is inappropriate.
The record evidence does not provide an adequate justification and demonstrated need to change the future land use for the Lantana Farm property from RR-10 to LR-1. Although an RR-5 land use designation might be more appropriate for the Lantana Farm property, the current RR-10 land use designation is not inappropriate.
Policy 2.2-c
Policy 2.2-c states that the County shall use the “County Directions” in the introduction section of the FLUE to guide future land use decisions. The County Directions are general statements that are not identified as goals, objectives, or policies of the Comprehensive Plan.
Petitioners claim that the Lantana Farm amendment is inconsistent with “Policy 2.2-c, FLUE Section 1-A – C,” but sections A and B are not part of the County Directions, which are only in section C. Section C includes a statement that the County will direct the location, type, intensity, and form of development that respects the characteristics of a particular area, prevents urban sprawl, and provides public facilities and services in a cost-efficient manner.
For the reasons set forth above, the County’s approval of the Lantana Farm amendment is inconsistent with Policy 2.2-c.
Policy 2.2-f
Petitioners contend that the Lantana Farm amendment is inconsistent with Policy 2.2-f of the Comprehensive Plan which prohibits piecemeal development or development which creates residual parcels. However, Petitioners did not meet their burden to show that the Lantana Farm amendment was “piecemeal development” or created a “residual parcel,” as those terms are defined in the Comprehensive Plan.
Policy 2.2.1-b
Petitioners contend that the Lantana Farm amendment is inconsistent with Policy 2.2.1-b of the FLUE, which requires that residential land uses be protected from encroachment of incompatible future land uses. The more persuasive evidence does not show that the Lantana Farm amendment would be inconsistent with Policy 2.2.1-b.
Urban Sprawl
Policy 1-1-d states that, “The County shall not modify the Tier System if the redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006.5 [sic], Florida Administrative Code.” Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl to be considered in the review of a comprehensive plan amendment to determine whether the presence of multiple indicators “collectively reflect a failure to discourage urban
sprawl.” Petitioner contend the Lantana Farm amendment triggers seven of the indicators. Those are the only indicators addressed below.
The first indicator that Petitioners contend is triggered is the designation for development of “substantial areas of the jurisdiction” as low-intensity, low density, or single-use development or uses in excess of demonstrated need.” Fla. Admin. Code R. 9J-5.006(5)(g)1.
Lantana Farm argued that its property represents a tiny fraction of the total area of the County, so this indicator cannot be triggered by the Lantana Farm amendment. However, the wording of the rule does not make the indicator applicable exclusively to an amendment that would, by itself, designate a substantial land area for low-density uses. The wording allows for a consideration of whether an amendment contributes to the local government’s total low-density land uses “in excess of demonstrated need.”
Petitioners did not prove that there is an excessive amount of low-density residential development in the County.
The second primary indicator is the designation of urban development in “radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.” Fla. Admin. Code R. 9J-5.006(5)(g)3.
Petitioners contend that the Lantana Farm amendment would contribute to a strip urban pattern. However, the Lantana Farm amendment would simply “drop” the Urban/Suburban Tier boundary that is north of the Lantana Farm property uniformly to the south. Therefore the amendment would not create a strip. The addition of the Lantana Farm property to the existing configuration of tier boundaries does not create strip sprawl.
The third primary indicator that Petitioners claim is triggered is “allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services.” Fla. Admin. Code R. 9J-5.006(5)(g)8.
No evidence was presented by Petitioners regarding any proportional increase in time, money, and energy for providing and maintaining services that would result from the Lantana Farm amendment. Petitioners simply offered a conclusory statement that the amendment constituted inappropriate timing of the conversion of rural lands.
The fourth indicator is the failure to provide a “clear separation between rural and urban uses.” Fla. Admin. Code R. 9J-5.006(5)(g)9.
The Lantana Farm amendment would create a new tier boundary for the Urban/Suburban Tier that is not as clear a separation between rural and urban uses as currently exists.
The fifth primary indicator is the discouragement of infill development or the redevelopment of existing neighborhoods and communities. Fla. Admin. Code R. 9J-5.006(5)(g)10.
The Lantana Farm amendment discourages infill and redevelopment because it is “outfill.” It diminishes the effectiveness of existing incentives and measures to promote infill and urban redevelopment within the Urban/Suburban Tier by allowing urban development to go “outside.”
Lantana Farm argues that the kind of suburban use provided in the Lantana Farm amendment serves a different market than in the URA and RR-O. That is probably correct, but does not address the opportunity to increase densities in other areas of the Urban/Suburban Tier.
The sixth indicator is failure to encourage an attractive and functional mix of uses. Fla. Admin. Code R. 9J- 5.006(5)(g)11.
There is no shortage of LR-1 and comparable land uses in the area of the Lantana Farm property. The Lantana Farm amendment does not encourage a functional mix of uses. Furthermore, the LR-1 density does not function well with the other rural residential uses in the Rural Tier.
The seventh indicator of urban sprawl is causing “poor accessibility among linked or related land uses.” Fla. Admin. Code R. 9J-5.006(5)(g)12.
There are no directly linked land uses adjacent to the Lantana Farm property, so poor accessibility between linked uses is not an applicable consideration. Lantana Road gives the Lantana Farm property access to non-residential uses east of the property.
Several of the indicators of urban sprawl in Florida Administrative Rule 9J-5.006(5) could also describe poorly planned future land use amendments that do not constitute urban sprawl. Although the Balsamo amendment exhibits some rule’s indicators of urban sprawl, Petitioners did not prove that the presence of these indicators collectively reflect a failure of the County to discourage urban sprawl.
Strategic Regional Policy Plan
In the Pre-Hearing Stipulation, Petitioners claim that the Lantana Farm amendment is inconsistent with three provisions of the Strategic Regional Policy Plan adopted by the Treasure Coast Regional Planning Council. Petitioners are held to their stipulation and, therefore, no findings are made here regarding other provisions addressed by Petitioners in their Proposed Recommended Order.
Regional Policy 9.1.1.1 is to “Encourage patterns of development and programs which reduce dependency on the automobile, encourage and accommodate public transit, and reduce the overall use of fossil fuels.” The Lantana Farm amendment
does not further this regional policy because it places more residences at the edge of public infrastructure and services, and distant from the urban center. However, Petitioners did not show that the adverse effect of the Lantana Farm amendment, in this respect, would be significant.
Regional Policy 7.1.3.1 is to “Encourage patterns and forms of development and redevelopment that maximize public transportation alternatives, minimize the use of the Region’s collector and arterial roadway network, and reduce the total amount of daily vehicle miles traveled.” For the same reason stated above, the Lantana Farm amendment does not further this regional policy. However, Petitioners did not show that the adverse effect of the Lantana Farm amendment, in this respect, would be significant.
Regional Strategy 2.1.2 is to “discourage sprawling development patterns to ensure compatibility of urban areas, natural preserves and open spaces.” Although the Lantana Farm amendment would detract from the rural character of this area of the Rural Tier, Petitioners did not show that that it would cause any significant incompatibility.
State Comprehensive Plan
In their amended petition, Petitioners adopted by reference the Department’s original position that the Lantana Farm Amendment was inconsistent with certain provisions of the
State Comprehensive Plan set forth in Chapter 187, Florida Statutes. However, Petitioners did not identify any State Comprehensive Plan issues in the Pre-Hearing Stipulation. Petitioners are held to their stipulation and, therefore, no findings regarding the State Comprehensive Plan are made here.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Sections 120.569, 120.57(1), and 163.3184(9), Florida Statutes.
Under Chapter 163, Part II, Florida Statutes, the Department has the duty to review local government comprehensive plan amendments and to determine whether the amendments are “in compliance.”
The term “in compliance” is defined in Section 163.3184(1)(b), Florida Statutes:
In compliance means consistent with the requirements of ss. 163.3177, 13.31776, when a local government adopts an educational facilities element, 163.3178, 163.3180,
163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable.
This Recommended Order addresses only the “in compliance” issues identified by Petitioners in the parties’ Pre-Hearing Stipulation.
Standing
In order to have standing to challenge a plan amendment, a challenger must be an “affected person,” which is defined as a person who resides, owns property, or owns or operates a business within the local government whose comprehensive plan amendment is challenged, and who submitted comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing and ending with amendment’s adoption. See § 163.3184(1)(a), Fla. Stat.
Petitioner Durando and Respondents Balsamo and Lantana have standing as affected persons.
In general, an association has standing to sue on behalf of its members when a substantial number of them would otherwise have standing to sue in their own right and the interests that the association seeks to protect are germane to its purposes. See Fla. Home Builders Ass’n v. Dept. of Labor
and Employment Security, 412 So. 2d 351 (Fla. 1982). Petitioner 1000 Friends of Florida made comments on the Balsamo and Lantana Farm amendments during the County’s comprehensive plan amendment process on behalf of a substantial number of its members who own
property or operate a business within the County. Therefore, 1000 Friends meets the requirements for associational standing. Burden of Proof
As the parties maintaining this action to assert that the Balsamo and Lantana Farm amendments are not in compliance, Petitioners have the burden of proof.
Standard of Proof
Section 163.3184(9)(a), Florida Statutes, provides that an amendment “shall be determined to be in compliance if the local government’s determination of compliance is fairly debatable.”
Petitioners argued that the preponderance of the evidence standard should be applied to the ultimate conclusion as to whether the amendments are in compliance, because the settlement agreements entered into by the Department and the County did not resolve the issues raised by the Department in its Statement of Intent. See § 163.3184(16)(f)2., Fla. Stat. By Order dated September 10, 2008, the Administrative Law Judge rejected that argument, ruling that the determination as to whether the settlement agreement resolved the issues raised by the Department was solely for the Department to decide.
The term “fairly debatable” is not defined in Chapter 163, Florida Statutes, but the Supreme Court of Florida, in Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997), held that,
“The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.” Id. at 1295.
Quoting from City of Miami Beach v. Lachman, 71 So. 2d. 148, 152 (Fla. 1953), the Court stated further that “an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point a logical deduction that in no way involves its constitutional validity.”
Compliance Determination
Subsection 163.3177(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5)(a) require the elements of a comprehensive plan to be internally consistent. Plan amendments must preserve the internal consistency of the plan. See
§ 163.3187(2), Fla. Stat. Land use map amendments must reflect the existing goals, objectives and policies of the comprehensive plan. Fla. Admin. Code R. 9J-5.005(5)(b).
It is beyond fair debate that the Balsamo and Lantana Farm amendments cause the Comprehensive Plan to be internally inconsistent.
There are mechanisms in the Comprehensive Plan, especially the Managed Growth Tier System, that are well-designed to discourage urban sprawl. The Comprehensive Plan, as a whole, does not fail to discourage urban sprawl. Although the Balsamo
and Lantana Farm amendments exhibit a few of the indicators of urban sprawl in Florida Administrative Code Rule 9J-5.006(5), Petitioners did not prove beyond fair debate that the County, in adopting the Balsamo and Lantana Farm amendments, failed to discourage urban sprawl.
Related to their claim regarding urban sprawl, Petitioners contend that the Balsamo amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which requires that comprehensive plans and land development regulations provide strategies which maximize the use of existing facilities and services “through redevelopment, urban infill development and other strategies for urban revitalization.” The County’s Comprehensive Plan provides adequate strategies to achieve these benefits, including the Managed Growth Tier System. In adopting the Balsamo amendment, the County did not remove these strategies from its Comprehensive Plan. Instead, the County failed to apply them. The Balsamo amendment is not inconsistent with Section 163.3177(11)(c), Florida Statutes, because the Comprehensive Plan contains the required strategies.
Petitioners contend that the Balsamao and Lantana Farm amendments are inconsistent with Florida Administrative Code Rule 9J-5.006(3)(b)1. and (c)2., which require that a local government’s FLUE contain certain objectives. Petitioners
failed to show that the FLUE does not contain the required objectives.
Although the Balsamo and Lantana Farm amendments do not further the three policies of the Strategic Regional Policy Plan discussed above, Petitioners did not prove that it is beyond fair debate that the amendments are inconsistent with the Strategic Regional Policy Plan, as a whole.
It is beyond fair debate that the Balsamo and Lantana Farm amendments are not in compliance, as defined in Section 163.3184(1)(b), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order determining that the Balsamo and Lantana Farm amendments are not in compliance.
DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida.
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2009.
ENDNOTES
1/ All citations to the Florida Statutes are to the 2007 codification.
2/ The County put off the re-examination and update of the Western Northlake Corridor Land Use Study, which includes the Balsamo property.
3/ The tier re-designations for the Osprey Isles, Menorah Gardens, and Carleton Oaks properties were recommended in the Western Northlake Corridor Land Use Study in 1998. The properties were formerly designated Institutional and Industrial, which was determined to be inappropriate for the area.
4/ The discussion in the EAR does not foreclose a demonstration that a tier change is justified in a particular area, but it does not support the proposition that the Urban/Suburban Tier needs to be moved westward to accommodate a general housing deficit.
5/ Balsamo did not analyze traffic or other public infrastructure levels of service based on a 2015 County buildout.
6/ Balsamo’s attempt to move one need assessment into evidence was denied following a hearsay objection. Joint Exhibit 1, which is the Balsamo application, appears to contain some information from the Scripps need assessment. Although an expert may identify the matters upon which he or she relied in forming an opinion, including inadmissible matters, it would circumvent the hearsay rule to allow the expert to discuss the findings and conclusions contained in inadmissible reports and articles. See Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006); Carratelli v. State, 832 So. 2d 850 (Fla. 4th DCA 2002); Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997).
7/ Petitioners address the indicator in Florida Administrative Code Rule 9J-5.006(5)(g)4. in their Proposed Recommended Order, but they voluntarily struck this allegation from their amended complaint, as discussed in the Order issued on August 15, 2008.
8/ See n. 2, supra.
9/ It is acknowledged that the inclusion of the small parcels to the east of the Lantana Farm parcel was the result of an analysis of the appropriate tier designations for those parcels. It is still concluded that the study conducted by Lantana Farm was inadequate as a comprehensive analysis of the appropriate tier designations for the surrounding area.
10/ See note 4, supra. 11/ See note 6, supra.
COPIES FURNISHED:
Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100
Tallahassee, Florida 32399-2100
Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325
Tallahassee, Florida 32399-2160
Jane M. West, Esquire
308 Lawrence Road Pownal, Maine 04069
Lisa Interlandi, Esquire Everglades Law Center, Inc. 818 US Highway 1, Suite 8 Lake Park, Florida 33408
Brian Joslyn, Esquire
Boose, Casey, Cikin, Lubitz, Martens, McBane & O'Connell
Northbridge Center, 19th Floor
515 North Flagler Drive
West Palm Beach, Florida 33401-4626
William G. McCormick, Esquire Ruden, McClosky, Smith, Schuster
& Russell, P.A.
200 East Broward Boulevard, 15th Floor Fort Lauderdale, Florida 33301
Gary K. Hunter, Jr., Esquire Hopping, Green & Sams
Post Office Box 6526 Tallahassee, Florida 32314-6526
Joseph D. Farish, Jr., Esquire
Law Office of Joseph D. Farish, Jr., LLC Post Office Box 4118
West Palm Beach, Florida 33402
Robert N. Hartsell, Esquire Everglades Law Center
818 U. S. Highway 1, Suite 8 North Palm Beach, Florida 33408
Samuel Dean Bunton, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Amy Taylor Petrick, Esquire
Palm Beach County Attorney's Office
300 North Dixie Highway, Third Floor West Palm Beach, Florida 33401-4705
NOTICE OF RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written exceptions within
15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 19, 2010 | Agency Final Order | |
| Dec. 14, 2009 | Agency Final Order | |
| Jan. 23, 2009 | Recommended Order | Two amendments to the Future Land Use Map of the Palm Beach County Comprehensive Plan are not in compliance with state law because they create internal inconsistancies. |
