STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SARASOTA SHOPPINGTOWN, LLC, )
)
Petitioner, )
)
vs. ) Case No. 07-4598GM
) SARASOTA COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) SARASOTA ASSOCIATES A-I, LLC; ) SARASOTA ASSOCIATES B-II, LLC; ) SARASOTA C-III, LLC; SARASOTA ) ASSOCIATES D-IV, LLC; SARASOTA ) ASSOCIATES E-V, LLC; HONORE ) ASSOCIATES I, LLC; DESOTA ROAD ) ASSOCIATES I, LLC, )
)
Intervenors. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Florida, on June 17-20, 2008.
APPEARANCES
For Petitioner: Christopher Torres
Greenberg Traurig, P.A. 625 East Twiggs Street Tampa, Florida 33602
Sherry A. Spiers Greenberg Traurig, P.A.
101 East College Avenue Tallahassee, Florida 32301
For Respondent Sarasota County:
Alan W. Roddy
Assistant County Attorney Office of the County Attorney
1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236
For Respondent Department of Community Affairs: Lynette Norr
Assistant General Counsel
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399
For Intervenors: Martha Harrell Chumbler
Nancy G. Linnan Carlton Fields, P.A. Post Office Drawer 190
Tallahassee, Florida 32303
H. Ray Allen, II Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601
STATEMENT OF THE ISSUES
The ultimate issue is whether Sarasota County's comprehensive plan amendments adopted by Ordinance No. 2007-64 (Plan Amendments), as amended by remedial plan amendments adopted by Ordinance No. 2008-33 (Remedial Plan Amendments), are in compliance, as provided by Section 163.3184(1)(b), Florida Statutes, with respect to: 1) whether the county's designation of several segments of University Parkway as Level of Service
(LOS) D for concurrency review, on the basis of a claim that the road is "constrained," is supported by data and analysis;
2) whether the supporting traffic analysis was conducted in a professionally acceptable manner; and 3) whether the identified transportation facilities are financially feasible.
PRELIMINARY STATEMENT
On July 10, 2007, Sarasota County adopted Ordinance 2007-64, which changes the future land use map (FLUM) designations on certain property proposed for development by Intervenors.
On September 14, 2007, Department of Community Affairs (DCA) filed a Notice of Intent to find the Plan Amendments not in compliance. On October 5, 2007, DCA transmitted the file to the Division of Administrative Hearings to conduct a formal hearing. By that time, the file contained petitions to intervene from Petitioner and Intervenors. On October 8, 2007, the Administrative Law Judge entered an Order granting both petitions. One week later, the Administrative Law Judge, at the request of the parties, abated the case so they could pursue settlement negotiations.
On April 30, 2008, DCA filed a Notice of Filing Cumulative Notice of Intent and Request for Realignment of Parties. The notice states that Sarasota County adopted the Remedial Plan Amendments on March 19, 2008, and that DCA had found the Plan
Amendments, as amended by the Remedial Plan Amendments (Cumulative Plan Amendments), to be in compliance. On May 1, 2008, the Administrative Law Judge, in accordance with Section 163.3184(16)(f)1., Florida Statutes, entered an Order realigning the parties, as reflected in the style set forth above.
On May 9, 2008, Petitioner filed a Petition for Formal Administrative Proceeding (Petition). The Petition alleges that the Cumulative Plan Amendments seek to change the future land use designations of 275 acres at the intersection of Interstate
75 (I-75) and University Parkway in Sarasota County from Major Employment Center, which is primarily for industrial or office- park uses, to designation(s) to support a "super-regional shopping center" with 1.68 million square feet of retail, drawing traffic from Sarasota, Manatee, Charlotte, Hardee, and DeSoto counties.
The Petition alleges that Sarasota County failed to comply with financial feasibility requirements by requiring a supporting traffic analysis through five years--2012--rather than through buildout--2009; failed to comply with financial feasibility requirements by relying on supporting traffic analysis that was fundamentally flawed due to manual downward adjustments in model outputs to halve the traffic study area; failed to require supporting traffic data and analysis that were professionally acceptable; and improperly reduced the LOS from C
to D for University Parkway, which is not constrained, but is a hurricane evacuation route.
On May 12, 2008, Intervenors filed a Demand for Expeditious Resolution, pursuant to Section 163.3189(3)(a), Florida Statutes. The Administrative Law Judge set the hearing for June 17-20, 2008, and, due to scheduling issues, transferred the case to the undersigned Administrative Law Judge.
At the hearing, Petitioner called four witnesses and offered into evidence 25 exhibits: Petitioner Exhibits 2, 3,
5-11, 13, 15-27, 29, and 30. Sarasota County called no witnesses and offered into evidence two exhibits: County Exhibits 1-2. DCA called one witness and offered into evidence three exhibits: DCA Exhibits 1 and 5-6. Intervenors called three witnesses and offered into evidence ten exhibits: Intervenor/Benderson/Associates Exhibits 1-6, 9-10, 12, and 13. The parties offered into evidence 21 exhibits: Joint Exhibits 1-21. The Sarasota County comprehensive plan was admitted as ALJ Exhibit 1. All exhibits were admitted, but Petitioner Exhibit 15 was not admitted for the truth.
The court reporter filed the transcript on June 23, 2008. On July 3, 2008, the parties filed proposed recommended orders.
FINDINGS OF FACT
Background
Petitioner owns the Westfield Sarasota Square Mall in Sarasota County. The mall is located at U.S. Route 41 and Beneva Road. Petitioner timely submitted written and oral comments to the Plan Amendments and Remedial Plan Amendments.
Having purchased the property in July 2002, Intervenors are the developers of Sarasota Interstate Park of Commerce (SIPOC) in Sarasota County. The development is located at the southwest quadrant of the interchange of I-75 and University Parkway. The boundary between Sarasota and Manatee counties is somewhere within the right-of-way of University Parkway between I-75 on the east (or a point just east of I-75) and U.S. Route
301 on the west.
University Parkway is an east-west arterial, multilane road that extends to the east of I-75 past a large multiuse development in Manatee County known as Lakewood Ranches. To the west, University Parkway extends past the Sarasota airport to its terminus at U.S. Route 41 in the vicinity of New College.
Honore Avenue is a north-south road (at least it is in the vicinity of University Parkway) and is the first road west of SIPOC. The first road south of SIPOC, DeSoto Road is an east-west road terminating just west of I-75 on the east and a short distance west of Honore Avenue on the west.
Cattlemen Road is a major north-south road that runs just west of I-75 and crosses two roads with I-75 interchanges to the south of the University Parkway interchange: Fruitville Road and Bee Ridge Road. Until SIPOC, the northern end of Cattlemen Road was south of University Parkway. However, Intervenors are constructing North Cattlemen Road from University Parkway to the north (directly across from the point at which Cooper Creek Boulevard terminates at University Parkway), past DeSoto Road, to Richardson Road, which is the northern terminus of Cattlemen Road at present. Richardson Road is just north of Fruitville Road.
On July 27, 1993, Sarasota County issued a development order (DO) for a development of regional impact for SIPOC. Pursuant to the DO, the approved use for SIPOC Phase I was 633,888 square feet of retail, and the approved uses for SIPOC Phase II were 215,210 square feet of retail, 547,488 square feet of light industrial, 240,982 square feet of office, 500 hotel rooms, and 750 multifamily dwelling units.
Phase I of SIPOC is substantially complete and has resulted in the construction of a SuperTarget at the site. This case involves the development that will constitute Phase II of the SIPOC.
On July 10, 2007, at the request of Intervenors, Sarasota County adopted two ordinances concerning SIPOC: Ordinance No. 2006[sic]-80 and Ordinance No. 2007-64.
Ordinance No. 2006-80 amends the SIPOC DO to approve the following uses: 1,680,000 square feet of retail, 220,000 square feet of office, 500 hotel rooms, and 1750 multifamily dwelling units (Amended DO). The Amended DO, which was never challenged, is effective on the date that the Plan Amendments described in Ordinance No. 2007-64 are found in compliance.
The buildout date of the Amended DO is December 31, 2009. For Phase II, the traffic impact intensities may not exceed 6405 gross p.m. peak hour trip ends or 3795 net new p.m. peak hour trip ends. Amended DO, p. B-6. The Master Development Plan depicts the proposed development, which fronts onto University Parkway, as divided into eastern and western sections by proposed North Cattlemen Road (and a 330-wide FPL transmission easement alongside the east side of North Cattlemen Road). From north to south, on the west side of the road and transmission line are commercial/office, commercial/residential, residential, and a conservation easement in the back of the parcel. On the east side of the road and transmission line are commercial/residential/office, residential, and a large stormwater management easement in the back of the parcel.
Amended DO Condition H addresses transportation.
Condition H.1 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase I or II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.1 states:
No Construction Plan approval shall be issued for any SIPOC Phase I or II development until such time as contracts for construction of the following improvements have been executed, and no Certificate of Occupancy nor temporary Certificate of Occupancy shall be issued until such time as these improvements have been accepted by Sarasota County.
Construction of the University Parkway at North Cattlemen Road intersection, including the following turn lane additions:
One eastbound right turn lane for a total of one;
One westbound left turn lane for a total of two;
Two northbound left turn lanes for a total of two;
Two northbound through lanes for a total of two; and
Two northbound right turn lanes for a total of two.
Construction of a northbound right turn lane at the Honore Avenue/DeSoto Road intersection.
Construction of DeSoto Road as a divided two lane arterial from Honore Avenue to North Cattlemen Road.
Construction of North Cattlemen Road as a divided four lane roadway from University Parkway to DeSoto Road.
These improvements have been identified as being required in order to provide adequate traffic circulation.
Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements, except the County shall assist in the acquisition of required right-of-way not under the ownership or control of the Applicant, provided that the Applicant shall be responsible for the expense thereof (except as otherwise set forth in agreements between the County and the Applicant).
Amended DO, p. B-19.
Amended DO Condition H.2 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.2 states:
Construction Plan approvals shall not be issued for any SIPOC Phase II development until such time as contracts for the construction of the following improvements have been executed, and no certificate of occupancy nor temporary certificate of occupancy shall be issued until such time as these improvements have been accepted by Sarasota County.
Construction of the University Parkway at Honore Avenue intersection including the following turn additions:
one northbound left turn lane for a total of two;
one westbound left turn lane for a total of two;
one northbound through lane for a total of two; and
one northbound right turn lane for a total of one,
prior to 40 percent of the DRI buildout (1518 net new p.m. peak hour trips).
Construction of the University Parkway at Cooper Creek Boulevard/North Cattlemen Road intersection including the following lane additions and/or modifications:
reconfiguration of the inside northbound through lane to a left turn lane for a total of three;
one southbound through lane for a total of one;
one southbound right turn lane for a total of one
prior to 60 percent of the DRI buildout (2277 net new p.m. peak hour trips).
Construction of a northbound left turn lane at the University Parkway at I-75 East Ramps intersection for a total of three prior to 50 percent of the DRI buildout or 1898 net new p.m. peak hour trips.
Signalization of Honore Avenue at DeSoto Road intersection when signal warrants are met.
Construction of a roundabout at the North Cattlemen Road at DeSoto Road intersection.
Construction of North Cattlemen Road as a divided four lane roadway from DeSoto Road to Richardson Road.
Construction of Fruitville Road at Cattlemen Road intersection including the following lane additions:
one northbound through lane for a total of two;
one northbound left turn lane for a total of two;
one southbound through lane for a total of two;
one eastbound left turn lane for a total of two;
one eastbound through lane for a total of four; and
one westbound left lane for a total of two.
Construction of Cattlemen Road at the North Access Driveway intersection including the following traffic control type and lane additions:
Signalization of the intersection;
One northbound left turn lane for a total of one;
Two northbound through lanes for a total of two;
One northbound through/right turn lane for a total of one;
Two southbound left turn lanes for a total of two;
Two southbound through lanes for a total of two;
One southbound right turn lane for a total of one;
Two eastbound left turn lane [sic] for a total of two;
One eastbound through/right lane for a total of one;
Two westbound left turn lane [sic] for a total of two;
One westbound through lane for a total of one and;
Two westbound right turn lanes for a total of two.
Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway.
Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway.
These improvements have been identified as required in order to provide adequate traffic circulation.
Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements.
Amended DO, pp. B-19 to B-21.
Amended DO Condition H.4 states:
Sarasota County acknowledges that with the construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new pm, peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that:
If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5);
If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless Funding Commitments for the improvement(s) required to maintain the adopted [LOS] have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual
monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOS]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity.
Sarasota County acknowledges that with construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new p.m. peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that:
If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in the [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5);
If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the
adopted [LOS] for that facility, no further construction plan approval shall be issued unless the Funding Commitments for the improvement(s) required to maintain the adopted [LOS](s) have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOSs]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity.
Amended DO, pp. B-22 to B-23.
Amended DO Condition H.4.c identifies 21 intersections and one road segment (I-75 southbound from University Parkway to Fruitville Road) that shall be monitored during the capacity reservation period. Condition H.4.c provides:
If in the Annual Traffic Monitoring Report, the [LOS] on any of the intersections or intersection approaches fall [sic] below the adopted [LOS], no further site and development plan approval shall be issued unless the required improvement(s) are made by the [Intervenors], or Funding Commitments for the improvement(s) have been provided by the [Intervenors], another private person, or a responsible entity. . . .
Amended DO Condition H.4.c identifies, by road segment, the number of equivalent p.m. peak hour trips to be
reserved during that period. The Amended DO defines the capacity reservation period as the period commencing with the effective date of the Amended DO and ending with the earlier of December 31, 2009, or the point at which cumulative SIPOC development, for which development orders have been issued, generates more than 6405 gross p.m. peak hour trip ends or more than 3795 net new p.m. peak hour trip ends.
Amended DO Condition H.5 requires Intervenors to establish an annual traffic monitoring program, which is "to monitor the cumulative impacts of the development on the roadways, intersections, and intersection approaches in the traffic impact area." This report is also used for traffic impact and concurrency evaluation purposes for any SIPOC development submitted to Sarasota County after the expiration of the Facility Reservation Period. Amended DO, p. B-26.
Amended DO Condition H.6 provides:
Development Order applications, including Final Development Order applications, for any portion of the development submitted during the annual concurrency evaluation period in effect for a given monitoring report, shall not be approved if the annual concurrency evaluation contained in that report indicates that traffic resulting from the approval of said Development Order will impact any road, intersection, or intersection approach in the traffic impact area that is operating (or projected to operate) below the adopted [LOS] for that facility. Notwithstanding the above, a Development Order application may be
approved if one of the following mitigative actions, or both in combination, are committed to by the [Intervenors] (as a condition of approval for that Development Order), or, by another responsible entity:
Other traffic impact reduction measures are implemented, including but not limited to transportation system management (TSM) strategies, intended to eliminate the impact of the SIPOC development traffic on the deficiently operating facility(ies)
. . . [or]
Funding Commitments, as defined in Conditions A.11.a.i-iii, are provided for the improvement(s) necessary to eliminate the [LOS] deficiency on the road(s) and/or intersection(s) by the SIPOC DRI development.
Amended DO, p. B-27.
Amended DO Condition A.11 defines "Funding Commitments" as follows:
"Funding Commitments" shall mean the fulfillment of an action necessary to ensure the completion of any road or intersection improvement required by this [Amended DO] or identified in any subsequent Annual Traffic Monitoring Report prior to the time the impacts from the development occur. These actions include one or any combination of the following:
The provision of a binding commitment by a private person or responsible entity
. . . for the design, engineering, and actual construction of the improvement to be completed when the improvement is identified as being necessary in the approved Annual Traffic Monitoring Report as required in this [Amended DO]; or
A commitment for actual construction and completion of the improvement pursuant to an approved Developer Agreement; or
For the purpose of reviewing a "Final Development Order," as that term is
defined in Sarasota County's Concurrency Management Regulations . . .:
The placement of the construction phase for an improvement in the current i.e., first year of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or
The placement of the construction phase for an improvement in the current i.e., first year of Manatee County's adopted Capital Improvement Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of Manatee County; or
The placement of the construction phase for an improvement in the current i.e., first year of the [DOT]'s adopted
5-Year Work Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of [DOT].
Amended DO, p. B-3.
Funding Amended DO Condition A.11.IV.iv adds:
For the purposes of reviewing a development order that is not a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations
. . .:
The placement of the construction phase for an improvement within the first five years of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or,
The placement of the construction phase for an improvement within the first five years of Manatee County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Manatee County; or,
The placement of the construction phase for an improvement within the first five years of the Florida Department of Transportation's . . . adopted 5-Year Work Program for roads and intersections under the jurisdiction of [the Florida Department of Transportation].
Amended DO, pp. B-3 to B-4.
By Ordinance No. 2007-64, Sarasota County adopted the Plan Amendments changing the FLUM designations on SIPOC. After DCA found the Plan Amendments not in compliance, by Ordinance No. 2008-33, Sarasota County adopted the Remedial Plan Amendments. The procedural history of the Plan Amendments and Remedial Plan Amendments is set forth in the Preliminary Statement and incorporated by reference. It is important to note that the Cumulative Plan Amendments apply exclusively to SIPOC.
The Remedial Plan Amendments add a new paragraph to the Transportation chapter of the Sarasota County comprehensive plan. With the existing, unchanged language in the first paragraph and the new language in the second paragraph, this part of the Transportation chapter now reads:
Although the [LOS] standard . . . provides an overall goal toward which the County can strive, the adoption of a[n LOS] as high as "C" peak hour, based on a 100th highest hour design criteria, for constrained and backlogged roadways would not be environmentally or financially feasible.
Constrained County roadways are defined as exhibiting a[n LOS] lower than the adopted
standard and not being able to attain the adopted standard because prohibitive costs or environmental limitations prevent the construction of at least two additional through lanes. Backlogged County roadways are defined as roadways operating below the adopted standard which do not have prohibitive financial or environmental constraints but are not scheduled for major capacity improvement in the County's Five Year Schedule of Capital Improvements.
Thus, the LOS for constrained roadways, i.e. prohibited due to physical or other policy limitations or backlogged roadways, i.e. currently un-funded in the 5-Year Schedule of Capital Improvements, is to maintain the current [LOS] with minimum degradation.
Between U.S. 301 and I-75, University Parkway lies along the Manatee/Sarasota County line. The generalized [LOS] data of Table 6-2 shows University Parkway between
U.S. 301 and I-75 to have been operating at
. . . LOS D in 2003. University Parkway has been constructed as a six-lane divided arterial roadway and is not planned to be widened to include additional general purpose lanes. Also, University Parkway has an adopted LOS "D" for purpose of evaluating transportation concurrency in Manatee County and absent any indication to the contrary would have an adopted LOS "C" for Sarasota County concurrency purposes. To resolve this discrepancy, to acknowledge current operating conditions, and based on the interlocal agreement with Manatee County regarding access control and maintenance responsibilities for University Parkway, Sarasota County considers the adopted LOS on University Parkway to be "D" for evaluating transportation concurrency. Therefore, University Parkway has been included in "Table 6-5: Designated Backlogged and Constrained Roadways in Sarasota County" as constrained at LOS D.
Ordinance No. 2008-33, Section 2.
Presumably, the "current conditions" on University Parkway to which the above-cited language refers is to 2008 because, as noted in the following section, the 2006 directional peak hour volumes of the University Parkway segments west of
I-75 were all LOS B, except for five such segments at LOS C. In any event, the Remedial Plan Amendments add seven segments of University Parkway from I-75 to a point west of the SIPOC, but east of U.S. Route 301, as "constrained" with an LOS D. Ordinance No. 2008-33, Section 3.
The Remedial Plan Amendments provide that the SIPOC is in Special Planning Area #1--a new FLUM designation. They add:
The [SIPOC DRI] Substantial Deviation Application for Development Approval (ADA) serves as supporting data and analysis for the area identified on the . . . FLUM as the SIPOC DRI--Special Planning Area 1. As required, the SIPOC DRI ADA is a comprehensive analysis of the suitability of the area for the development as well as the proposed impacts of the project. This DRI analysis can be used by Sarasota County to guide the timing, location, type and amount of future development. Thus, the Application for Development Approval, sufficiency responses and [Amended DO] provide supporting data and analysis for the land use designation on the FLUM.
Ordinance No. 2008-33, Section 4.
The Remedial Plan Amendments amend the future land use element of the Sarasota County comprehensive plan to incorporate the above-described density and intensity limits, as well as
hotel rooms and dwelling units, identified above in the Amended DO. Ordinance No. 2008-33, Section 6.
The Remedial Plan Amendments identify a new Five-Year Schedule of Capital Improvements, Table 10-3, which is obviously limited to SIPOC. For traffic circulation, the new capital improvement schedule provides (all costs are in millions'):
Project Pre-2008 | 2008 | 2009 | 2010 | 2011 | Future | Total |
Add DeSoto Rd. 2.27 | 2.5 | 0.27 | 0.27 | 0.15 | 0 | 5.5 |
Add N. Cattle man Rd.- 5.0 Richardson Rd. | 0 | 5.0 | 21.0 | 6.3 | 2.5 | 39.0 |
Add University Pkwy./Honore 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Ave. Inter- section | ||||||
Add University Pkwy. Northbound 0 | 0 | 0 | 0 | 0 | 0 | 0 |
Off-ramp [to I-75] | ||||||
Ordinance No. 2008-33, | Section | 9. |
The Remedial Plan Amendments further identify Special Planning Area 1 as follows:
Special Planning Area 1 is the . . . SIPOC DRI. The Substantial Deviation Application for Development Approval (ADA) provides data and analysis regarding its significant and adverse impacts to local and regional roadways. [Intervenors], in coordination with Sarasota County, ha[ve] committed to provide funding and right-of-way as needed from the DRI property to mitigate for the improvements required to maintain the adopted [LOS] on area roadways . . .
resulting from the impacts of the SIPOC DRI. The required improvements to the roadway system . . . are provided in the [Amended DO] and summarized as follows:
Improvements to the roadway included in the County's Five-Year Capital Improvements Program (CIP) are as follows:
North Cattlemen Road from Richardson Road to University Parkway. This project has been programmed in the CIP in the amount of $39,907,103 . . ..
DeSoto Road from Harold Avenue to North Cattlemen Road. This project has been programmed in the CIP in the amount of
$5,462,227 . . ..
Improvements to the intersection of University Parkway and Honore Avenue. This project will be funded by [Intervenors]. The current construction estimate is
$2,250,000 . . ..
Improvements to the northbound exit ramp of I-75. This project will be funded by [Intervenors]. The current construction estimate is $2,000,000 . . ..
A public transit transfer facility station will be designed, permitted and constructed by [Intervenors] and will be designed to accommodate a minimum of four buses and will be constructed at such time as Sarasota County Area Transit establishes service to the development. The estimated cost is $300,000 . . ..
Ordinance No. 2008-33, Section 10.
The Remedial Plan Amendments become effective when DCA enters a final order finding them to be in compliance.
Ordinance No. 2008-33, Section 14.
Whether Adoption of LOS D for University Parkway Is Supported by Data and Analysis
The present record is devoid of evidence that any of these segments of University Parkway are constrained. Nothing in the record suggests that the constraints of prohibitive costs or significant natural resources preclude the widening of University Parkway.
By definition, these segments of University Parkway were backlogged, prior to the reduction in their LOS standard to D, as they were operating below their adopted LOS standard of C and were omitted from the five-year capital improvement schedule for capacity enhancement sufficient to restore a C LOS standard. Backlogged segments remain deficient and are to be maintained so as to minimize further degradation. Of course, by reducing the LOS standard to the actual LOS--D--Sarasota County relieves these University Parkway segments of their backlogged status. Instead, the clear intent of the county was to reduce the LOS standard of these segments, not to treat them and their failure to attain LOS C as special cases.
The second of the cited paragraphs above essentially designates these segments of University Parkway as LOS D, not because they are constrained or were (prior to the new designation) backlogged, but because: 1) Manatee County designates the same segments as LOS D, 2) the segments are
operating at LOS D, and 3) Manatee County is unlikely to share the cost of enhancing the capacity of these segments when they are operating at their (Manatee-County) adopted LOS standard. Sarasota County's proposed recommended order, at paragraph 19, candidly concedes these points.
Without regard to Sarasota County's confusing attempt to designate the University Parkway segments as constrained or backlogged, the three cited reasons for lowering the LOS standard to D for these segments of University Parkway are data and analysis supporting the action taken by Sarasota County.
Petitioner has failed to prove to the exclusion of fair debate that the designation of the affected University Parkway segments as LOS D is not consistent with the criterion of supporting data and analysis.
Whether Supporting Traffic Data Are Appropriate and Traffic Data Were Collected and Applied in a Professionally Acceptable Manner
Kimley-Horn and Associates, Inc., (KH) performed the traffic analysis in connection with the Amended DO and Cumulative Plan Amendments. In November 2005, KH prepared a Transportation Methodology Statement (TMS) for use in conjunction with the SIPOC Phase II DRI Substantial Deviation (from the DO).
The TMS briefly describes Phase II of the SIPOC development. The TMS slightly overstates, by percentage, retail
uses by 120,000 square feet (using 1,800,000 square feet, rather than 1,680,000 square feet) and substantially understates, by percentage, office uses by 120,000 square feet (using 100,000 square feet, rather than 220,000 square feet), but, obviously, the total of the two uses is the same as the total stated in the Amended DO.
The TMS states that KH will use the trip generation rates published by the Institute of Transportation Engineers, Trip Generation, 7th Edition, 2003. The TMS notes that hotel trips require a different source due to their exclusion from Trip Generation.
The TMS states that KH will determine trip "general trip distribution of project traffic" by "application of the Florida Standard Urban Transportation Model Structure" (FSUTMS), which is a transportation planning model. The TMS states that KH will use FSUTMS for "project distribution" and "general assignment of project traffic to the roadway network."
Trips are first distributed between attractor land uses and producer land uses and then are assigned to specific facilities. Thus, it is necessary to distribute trips between SIPOC and various offsite locations and, using this information, to assign traffic to the roadway network in the vicinity of the attractors.
The TMS adds:
In addition to [FSUTMS], existing traffic patterns adjacent to the project site, including the location of production- and attraction-based land uses, will be used as supplement data to estimate project traffic assignment. A copy of the distribution and electronic files of the input files to be used in this model will be provided in the analysis report to the appropriate review agencies.
The TMS states that, in distributing project traffic, KH will use the existing roadway network plus committed improvements in the first three years of Manatee County's current capital improvement program, Sarasota County's current capital improvement program, and Florida Department of Transportation's (DOT's) Work Program.
The TMS states that KH will obtain the necessary socio-economic projections for the buildout year of 2009 from the Sarasota/Manatee Area Transportation Study and will supplement these data to include certain other approved DRIs, which are listed. The TMS states that the analysis report will summarize the socio-economic adjustments.
The TMS states that KH will estimate internal capture and pass-by capture of project traffic based on the review of FSUTMS in Trip Generation, 2nd Edition, June 2004--as well as other ITE-related documents and engineering judgment applied to the characteristics of SIPOC, Phase II. Internal capture is a
function of mixed-use developments, such as SIPOC, in which persons using the retail, office, or residential components of the single development remain within the development, rather than enter the roadways surrounding the development. Pass-by capture describes the function of a development interrupting a trip on the surrounding roadway system and later releasing the trip back onto the surrounding roadway system.
The TMS adds that the total pass-by capture trips will be estimated for the retail part of SIPOC, Phase II, and will be limited to 10 percent of the future background traffic estimates adjacent to the project site. The TMS adds that KH will document all assumptions and applied procedures in the analysis report. The resulting reduction in internal capture and pass-by capture trips will, according to the TMS, produce net, new trips, which KH will use to identify the transportation impact study area.
The TMS states that KH will review the impacts of project traffic on the adjacent roadway network following the requirements of Section 380.06, Florida Statutes, and Florida Administrative Code Rule 9J-2.045, which are consistent with the rules of DCA. Relying on the procedures used in the Phase I transportation analysis, which had been recently approved, KH will then identify the study area as "all roadway segments for which SIPOC net, new project traffic will consume 5.0 percent or
greater of the . . . LOS C directional, peak-hour service volume of each affected roadway link located within Sarasota County, including University Parkway and I-75." For roadways in Manatee County, excluding I-75, the LOS will be D. The TMS states that peak-hour service volumes will be estimated based on the most recent information available from DOT and the Transportation Research Board, Highway Capacity Manual, 2000 Edition.
In particular, the TMS notes that KH will use four- lane, divided capacity for North Cattlemen Road from University Parkway to DeSoto Road and two-lane, divided capacity for North Cattlemen Road from DeSoto Road to Richardson Road and DeSoto Road from Honore Avenue to North Cattlemen Road. The TMS adds that KH will use six-lane, divided capacity for University Parkway from I-75 to Lakewood Ranch Boulevard to the east and the proposed ramp improvements to the University Parkway/I-75 interchange. The TMS identifies the LOS standards of various road segments surrounding SIPOC, including LOS D for University Parkway from U.S. Route 301 to Lakewood Ranch Boulevard. (University Parkway east of I-75 is entirely in Manatee County.)
The TMS identifies the analysis period as the p.m., peak season, peak hour for both existing and future conditions. For the existing condition, Intervenors shall obtain recent traffic count data.
The TMS notes that KH will forecast future nondevelopment (background) traffic for the buildout year of 2009, using the results of the FSUTMS model, forecasted traffic projections from public agencies, and actual historical traffic counts from the study area. Comparing the FSUTMS outputs for 2005 and 2009, KH will determine the appropriate growth rates for specific roadways within the study area. By applying those growth rates to the existing traffic data, KH will determine future background traffic volumes. The TMS states that the analysis report will contain complete documentation of all assumptions and applied procedures.
The TMS states that KH will perform roadway link capacity analysis for all regionally significant roadways and any subregional roadways in the study network that provide primary access to SIPOC. The TMS identifies the sources of procedures for this analysis and assures that the analysis report will contain electronic files with the results of the roadway link capacity analysis.
The TMS states that KH will assess project traffic for potential improvements where it contributes at least five percent of the appropriate LOS peak hour directional service volume of a regional roadway in the transportation impact study area. KH will identify improvements only when the roadway is expected to operate below its adopted LOS peak hour service
volume. The analysis report will identify improvements attributed to SIPOC only if project traffic consumes at least five percent of the adopted LOS peak hour service volume or the "critical movements of the intersections located at the endpoints of an impacted roadway segment." The TMS states that KH will perform similar analyses of intersections in terms of their LOSs and need for improvements when operating below their adopted LOS standards.
KH circulated the TMS among various agencies, including Sarasota County, DOT, and the Southwest Florida Regional Planning Council (RPC). None of these agencies offered any criticism of the proposed methodology.
As part of their application for development approval that led to the Amended DO, Intervenors filed a Substantial Deviation from the SIPOC DRI. Part V of this document is Public Facilities, and Section A of Part V is Transportation. This Transportation Substantial Deviation document shall be referred to as the "TSD."
At the time of the preparation of the TSD, Phase I of SIPOC was under construction, so KH combined the land uses and their associated traffic for both phases for the analysis contained in the TSD. KH based its analysis on 2009 projections because that is the year of buildout of Phase II.
The TSD states that KH used current policies of Sarasota County and RPC to identify the transportation study area, which comprises the regionally significant roadway links, intersections, and interchanges on which Phases I and II project trips associated with SIPOC consume at least five percent of the adopted LOS. The TSD identifies the adopted LOS as C for each affected roadway link in Sarasota County, including University Parkway west of I-75 and I-75 in Sarasota and Manatee counties, and D for roadways in Manatee County.
Evidently, at the time of the preparation of this part of the TSD, Sarasota County had not yet identified the need to lower the LOS for University Parkway to D. However, TSD Table
5.A.2 reports that the University Parkway segments west of I-75 have an adopted LOS D. University Parkway would obviously be in the transportation study area regardless whether KH has used a LOS standard of C or D for its segments west of I-75.
The TSD states that KH used the existing roadways plus roadway improvements funded for construction for the first three years in the capital improvement programs of Sarasota and Manatee counties and the DOT Work Program, except that KH used five years of the DOT Work Program for construction of I-75 improvements.
The TSD states that KH used ITE's, Trip Generation, 7th Edition (2003) to determine that SIPOC, through Phase II,
would generate 68,894 daily trip ends and 6405 trip ends in the p.m., peak hour, consisting of 3148 inbound and 3257 outbound, as well as 2158 trip ends in the a.m. peak hour, consisting of 1143 inbound and 1015 outbound. The TSD states that KH used an internal capture rate of 33 percent and a pass-by capture rate of less than 10 percent of future background traffic.
Subtracting the internal capture and pass-by capture rates from the total gross trips, TSD Table 5.A.5 reports that the total, net, new external project trips is 38,120 daily, including 1708 in and 1817 out during p.m. peak hour and 713 in and 585 out during a.m. peak hour.
The TSD describes the process by which KH calculated 2009 total traffic, which consists of SIPOC traffic plus background (i.e., nonSIPOC) traffic. KH inputted into FSUTMS socioeconomic data provided by the Sarasota/Manatee County Metropolitan Planning Organization (MPO), supplemented by data from other approved DRIs in the area. The TSD details the process by which KH isolated the effects of SIPOC in projecting background traffic. For project traffic, the TSD states that KH used FSUTMS output to distribute trips and, with "minor refinements based upon existing and proposed attractive-type land uses near the project site," to develop roadway assignment percentages. TSD, p. 12.
TSD Table 5.A.1 reports the LOS service volumes for road segments in the vicinity of SIPOC, the projected traffic assignment (expressed as a percentage of the LOS service volume) assigned to each road segment, and an indication whether the five-percent threshold has been met, so as to require the inclusion of the road segment in the transportation study area. The TSD states that KH also applied the percentages to the trip generation estimates, with an adjustment for background traffic, to determine projected traffic volumes through Phase II. A revised version of this table is in the Third Sufficiency Response.
TSD Table 5.A.2 shows service volumes for existing roadways based on their adopted LOSs. For instance, all depicted University Parkway segments west of I-75 bear an LOS D, which produces a service volume of 2790. The service volume of 2790 is for peak hour conditions. Using p.m. peak hour traffic counts conducted by KH, Table 5.A.3 indicates the actual p.m. peak hour roadway volumes for 2006, divided by direction. For the University Parkway segments west of I-75, the existing volumes are all at least 400 trips below 2790, so as to earn LOS Bs for all segments, except five, which are at LOS C. In general, Table 5.A.3 reports that all road segments in the study area were within their adopted LOS standards for 2006, and Table
5.A.4 reports that all intersections in the study area were within their adopted LOS standards for 2006, as well.
In projecting 2009 traffic volumes, the TSD describes the process undertaken by KH to determine the volume of Honore Avenue traffic that would be diverted to North Cattlemen Road, once the latter facility is constructed. KH also assigned a minimal amount of traffic to DeSoto Road between Honore Avenue and North Cattlemen Road to account for the use of this new facility by background traffic. For project traffic, KH made "minor adjustments," of the type noted above, in assigning traffic to road segments in the study area.
Projecting 2009 conditions, TSD Table 5.A.6 shows the directional p.m. peak hour traffic volumes for the project, background, and total. For instance, eastbound and westbound, the University Parkway segment from North Cattlemen Road/Copper Creek Boulevard west to Honore Avenue will have project volumes of 436 and 463 trips, background volumes of 2725 and 2672 trips, and total volumes of 3161 and 3135 trips, which would exceed the LOS D volume of 2790 trips reported above in TSD Table 5.A.2. TSD Table 5.A.7 reports, by road segment, the ratio of project traffic to total traffic. On the segment discussed immediately above, the project will constitute about 14 percent of peak hour total traffic in both directions. On other segments, such as the North Cattlemen Road and DeSoto Road segments that will
primarily serve SIPOC, peak hour project traffic will be about 80-90 percent of peak hour total traffic.
The TSD states that KH identified a road segment as critical and in need of further analysis if the 2009 projections revealed that it was operating below its adopted LOS standard and project traffic consumed at least five percent of its adopted peak-hour directional LOS volume TSD Table 5.A.8 reports the result of the roadway analysis, which, with "detailed arterial analysis," finds all segments, including the above-mentioned Honore/Cooper Creek segment of University Parkway, to be operating in 2009 at their adopted LOS or better. However, despite the application of "detailed arterial analysis," Table 5.A.8 designates five of the University Parkway segments, including the Honore/Cooper Creek segment, and three segments of Honore Avenue as critical links. Each of these eight segments was designated a critical link in both directions.
TSD Table 5.A.9 identifies the intersections in the study area and projects that five of them will, by 2009, fall below their adopted LOS standard. Table 5.A.9 includes recommended improvements to restore LOSs to adopted levels or better. For the intersections at Honore Avenue and DeSoto Road and North Cattlemen Road and DeSoto Road, the improvement is to add signals. For the intersections at University Parkway and
Honore Avenue and University Parkway and North Cattlemen/Cooper Creek, the improvements are to add two new turn lanes at each intersection. For the intersection at University Parkway and the I-75 east ramps, the improvement is to construct a new turn or ramp lane.
In connection with the DRI-approval process, Sarasota County and DOT issued comments and questions, which prompted Intervenors' engineering firm to file at least three sufficiency reports. In the First Sufficiency Report, the RPC noted that a four-year planning horizon (2005-09) was a relatively short timeframe for using FSUTMS, so KH needed to check outputs for "reasonableness." In the Second Sufficiency Report, KH had to justify to Sarasota County KH's detailed assumptions and conclusions, such as its internal capture rate of 33 percent for am peak hour and its refusal to use an annual growth rate in traffic on University Parkway east of I-75 of 15 percent (as suggested by the FSUTMS output). KH also had to respond to DOT comments by adding to a map trip distribution percentages to certain road segments and correcting some LOS levels used in certain of the TSD tables.
In the Third Sufficiency Response Table 1, KH identified the recommended transportation improvements to be funded by Intervenors as follows:
Roadway Improvement Timeframe
Honore Ave. & Construct north- Phase I DeSoto Rd. bound (NB) right-
turn lane.
University Pkwy. Construct EB right- Phase I & W. Project Drive turn lane.
University Pkwy. Construct 2 NB left- Phase I & N. Cattlemen Rd. turn lanes, 2 NB
through lanes, 2 NB right-turn lanes, 1 EB right-turn lane,
and 2 WB left-turn lanes.
N. Cattlemen Rd. Construct 4-lane Phase I
divided road from University Pkwy to DeSoto Rd.
DeSoto Rd. Construct 2-lane Phase I divided road from
Honore Ave. to
N. Cattlemen Rd.
University Pkwy. Construct 2nd NB left- Phase II & Honore Ave. turn lane and 2nd WB
left-turn lane. Con- vert NB right-turn lane to through lane and construct new NB right-turn lane.
University Pkwy. & Convert SB right-turn Phase II Cooper Creek Blvd./ lane to through lane
N. Cattlemen Rd. and construct new SB
right-turn lane.
University Pkwy. Construct 3rd NB Phase II & I-75 E ramps left-turn lane.
Honore Ave. Signalize when Phase II
& DeSoto Rd. warranted.
N. Cattlemen Rd. Signalize when Phase II & DeSoto Rd. warranted.
N. Cattlemen Rd. Construct 2-lane Phase II
divided or possibly 4-lane divided from DeSoto Rd. to Richardson Rd.
The reviewing agencies ultimately approved the KH transportation analysis, but Petitioner claims that the transportation analysis was not professionally acceptable. Even Petitioner's witnesses offered no objection to the capture rates and traffic volumes used by KH. The thrust of Petitioner's objections to the traffic analysis is not to the inputs or model, but to the manual adjustments that KH made to the model outputs when assigning traffic to specific road segments. Some of these adjustments resulted in the removal of certain road segments from the transportation study area and thus from further analysis of the adverse impacts from SIPOC.
The KH employee responsible for this project, Robert Agrusa, has 23 years' experience performing traffic studies and
20 years' experience using FSUTMS. Mr. Agrusa has worked in the Sarasota area nearly exclusively for over 15 years and has worked on the traffic impacts of DRIs.
FSUTMS is a model whose original purpose was to assist long-range transportation planning, thus the comment by the RPC reviewer for the need to use care in using FSUTMS for the relatively short timeframe involved in this exercise. The
model's sensitivity is limited as to attractive land uses near the subject project. For instance, the model fails to differentiate between a convenience store and a regional shopping mall; both are simply retail land uses. The engineer using FSUTMS for the purpose for which it was used in this planning exercise must examine the outputs carefully, compare them to existing and future land uses, and adjust the model- generated trip assignments based on his or her professional judgment.
According to a Sarasota County transportation engineer, adjustments to FSUTMS output are more common in the
I-75 corridor where the model's traffic analysis zones are less precise. Other authorities likewise support manual adjustments to model outputs.
Among the manual adjustments described by Mr. Agrusa was an increase in the number of trips absorbed by large residential areas west of SIPOC, both north and south of University Parkway. These areas include 3000-4000 dwelling units that, in his professional judgment, were inadequately weighed by FSUTMS in distributing trips. For similar reasons, Mr. Agrusa made a similar adjustment in assignments in the area south of University Parkway and north of Fruitville Road, where even more dwelling units are located.
Another manual adjustment described by Mr. Agrusa illustrates well the issue raised by Petitioner. Mr. Agrusa increased the trips on I-75, north and south of University Parkway, to reflect the regional draw of SIPOC, especially its retail uses. No transportation engineer in this case disagrees that SIPOC is a regional draw. An increase in I-75 trips means a corresponding decrease of trips on University Parkway, Honore Avenue, and North Cattlemen Road. However, the magnitude of such changes was typically limited to 2-3 percentage points, and each percentage point of net new trips is only 40 two-way trips or 80 one-way trips.
As Petitioner contends, small changes can result in large effects. Mr. Agrusa raised the percentage of project trips on I-75 south of University Parkway from nine percent to
12 percent. As already noted, this would lighten the projected traffic on other segments, especially North Cattlemen Road and Honore Avenue. By raising the percentage only to 12, though, Mr. Agrusa did not cause the burdened interstate segment to have to be included in the study area because, at 12 percent, the project contributed 4.99 percent of this segment's volume. Had Mr. Agrusa raised the percentage to 12.5 percent, the five percent threshold would have been met, and this segment of I-75 would have had to have been included in the study area. But
Mr. Agrusa testified that he did not restrict this increase to
lower the volumes on road segments already in the study area and raise it as far as possible without adding the increasingly burdened segment to the study area; absent evidence of some impropriety in this adjustment, it is impossible to find that it was not professionally acceptable, especially in the absence of objection from DOT as to exclusion of I-75 from the study area.
All transportation engineers, including Petitioner's witness, agreed that a manual adjustment was indicated to increase the assignment of trips to I-75; they disagreed only as to the extent of the increase. Projecting traffic volumes even for just four years is necessarily a rough-hewn process, which, in this case, did not even assign an input to the cost of fuel and its effect on traffic volumes. The magnitude of the changes for which Petitioner contends would introduce into this process more precision than the process can support. The projection is for only four years, so, with or without manual adjustments to model outputs, the potential for error is reduced when compared to longer planning horizons. Given the detailed methodology and analytic exercise described above, the multiple-agency review, and the absence of affirmative evidence of bad faith, KH collected appropriate data in a professionally acceptable manner and applied the data, in a professionally acceptable manner, to identify the study area, the impacted road segments and
intersections, and the improvements necessary to maintain adopted LOS standards on these segments and intersections.
Petitioner has failed to prove to the exclusion of fair debate that the data and analysis regarding the Cumulative Amendments are inconsistent with the criteria that the date be appropriate to the plan provisions and that the data be collected and applied in a professionally acceptable manner.
Whether the Identified Transportation Facilities Are Financially Feasible and Properly Scheduled in the Capital Improvement Program
As of the date of the final hearing, Intervenors had already constructed all of the Phase I transportation improvements (Amended DO Conditions H.1.a-d) and the following Phase II transportation improvements: the roundabout at North Cattlemen Road and DeSoto Road (Amended DO Condition H.2.e), the roundabout at North Cattlemen Road and northern Access Drive (Amended DO Condition H.2.i), and the roundabout at North Cattlemen Road and the southern Access Drive (Amended DO Condition H.2.j). As of the date of the final hearing, Intervenors had almost completed construction of the signalization of Honore Avenue and DeSoto Road (Amended DO Condition H.2.d). As of the date of the final hearing, a third party had completed construction of intersection improvements at Fruitville Road and Cattlemen Road (Amended DO Condition H.2.g).
As of the date of the final hearing, Intervenors had delivered to Sarasota County a letter of credit or performance bond of $33 million--sufficient to pay for the construction of North Cattlemen Road from DeSoto Road to Richardson (Amended DO Condition H.2.f) and the North Access Drive (Amended DO Condition H.2.h), for which the combined cost is estimated to be
$29,517,244, and the construction of the intersection improvements at University Parkway at Cooper Creek/North Cattlemen (Amended DO Condition H.2.b), for which the cost is estimated to be $3,100,000.
This leaves only two transportation projects from the Amended DO Condition H for Intervenors to complete: construction of the intersection improvements at University Parkway and Honore Avenue (Amended DO Condition H.2.a), for which the cost is estimated to be $2,250,000, and construction of the east ramp improvements at I-75 and University Parkway
(Amended DO Condition H.2.c), for which the cost is estimated to be $2,000,000. Intervenors secured its undertaking to pay for these remaining transportation improvements by providing Sarasota County with financial assurance--in the form of new capital contribution agreements--adequate for these two improvements plus the construction of the transit station, but Intervenors entered into these agreements after the adoption of the Cumulative Plan Amendments.
Based on the KH traffic analysis, which has not been shown to have been unreliable or unprofessional, these transportation improvements will offset the impacts of SIPOC, Phases I and II, sufficient to avoid a violation of any adopted LOS standard for any road segment or intersection. If, for some reason, the improvements were not to be adequate, the monitoring program in the Amended DO will ensure that development orders will be suspended, pursuant to the conditions contained in the Amended DO, the reference in the Remedial Plan Amendments to Intervenors' financial undertakings in the Amended DO (thus incorporating them into the comprehensive plan), and concurrency provisions in the Sarasota County comprehensive plan, unless and until these traffic impacts are offset by transportation improvements sufficient to restore service volumes to the adopted LOS standards.
Additionally, the Remedial Plan Amendments contain a five-year schedule of capital improvements that adequately describes the relevant transportation improvements and the years of funding.
The KH traffic analysis drives the finding that the transportation improvements already completed and to be undertaken by Intervenors will prevent any road segment or intersection from falling below the adopted LOS standard due to impacts from SIPOC traffic. As a backup, the Amended DO
provides for monitoring of traffic volumes and suspends development if and when SIPOC traffic causes any road segment or intersection to fall below its adopted LOS standard. In turn, these findings inform findings as to the consistency of the undertaken capital improvements with the criteria of financial feasibility and scheduling capital improvements.
Petitioner has failed to prove to the exclusion of fair debate that the Cumulative Plan Amendments are not consistent with the criteria of financial feasibility and scheduling capital improvements.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 163.3184(9), (10), and (16)(f), Fla. Stat. (2007).
Pursuant to Section 163.3184(16)(f)1, Florida Statutes, DCA's issuance of a notice of intent to find the Cumulative Amendments in compliance necessitated a realignment of the parties and proceeding under Section 163.3184(9), Florida Statutes. Following realignment, pursuant to these provisions, Petitioner has the burden of proving to the exclusion of fair debate that the Cumulative Plan Amendments are not in compliance.
"In compliance" means "consistent" with Section 163.3177, Florida Statutes, and Florida Administrative Code Chapter 9J-5, among other things.
Consistency with Section 163.3177, Florida Statutes, and Florida Administrative Code Chapter 9J-6 is not defined by statute or rule. However, Section 163.3177(10)(a), Florida Statutes, explains the meaning of consistency with other sources of authority:
The Legislature finds that in order for the department to review local comprehensive plans, it is necessary to define the term "consistency." Therefore, for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.
Applying these notions of consistency to the issue of consistency with Chapter 163, Part II, Florida Statutes, and Florida Administrative Code Chapter 9J-5, the issue is to
determine if the provision of a plan or plan amendment or supporting data and analysis is compatible with and furthers a requirement of Chapter 163, Part II, Florida Statutes, or criterion of Florida Administrative Code Chapter 9J-5. If so, the plan provision or data and analysis are consistent with the subject rule or statute.
Section 163.3177(9) and (10), Florida Statutes, authorizes "affected persons" to participate as parties in litigation concerning whether a plan or plan amendment is in compliance. Section 163.3177(1)(a), Florida Statutes, defines an "affected person" to include a person owning property or owning or operating a business within the boundaries of the local government whose plan or plan amendment is under challenge, provided such person submitted oral or written comments between the transmittal hearing and adoption of the plan or plan amendment. Petitioner has proved standing.
The requirement of supporting data and analysis arises at several points in Chapter 163, Part II, Florida Statutes, and Florida Administrative Code Chapter 9J-5. For instance,
Section 163.3177(8), Florida Statutes, states: "All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved."
Addressing the necessity for supporting data and the process of collecting data, as well as questions of methodology
in data collection, Section 163.3177(10)(e), Florida Statutes, provides:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted. However, the department shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, Florida Administrative Code, shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
Requiring supporting data and analysis, prescribing in detail the meaning of this requirement, and addressing acceptable sources of data, Florida Administrative Code Rule
9J-5.005(2) provides:
Data and Analyses Requirements.
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that
particular subject at the time of adoption of the plan or plan amendment at issue.
Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data and analyses described in this chapter and whether the data were collected and applied in a professionally acceptable manner. All tables, charts, graphs, maps, figures and data sources, and their limitations, shall be clearly described where such data occur in the above documents. Local governments are encouraged to use graphics and other techniques for making support information more readily useable by the public.
This chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government comprehensive plan data base so long as methodologies are professionally accepted.
Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
Identifying the specific criteria applicable to transportation analysis, Florida Administrative Code Rule 9J-5.019(3) states:
TRANSPORTATION ANALYSIS REQUIREMENTS. The element shall be based upon the following analyses which address all modes of transportation and support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C.
An analysis of the existing transportation system levels of service and system needs based upon existing design and operating capacities; most recently available estimates for average daily and peak hour vehicle trips; existing modal split and vehicle occupancy rates; existing public transit facilities, including ridership by route, peak hour capacities and headways; population characteristics, including transportation disadvantaged; and the existing characteristics of the major trip generators and attractors within the community.
An analysis of the availability of transportation facilities and services to serve existing land uses.
* * *
(d) An analysis of the growth trends and travel patterns and interactions between land use and transportation, and the compatibility between the future land use and transportation elements, including land use compatibility around airports.
* * *
An analysis of the projected transportation system levels of service and system needs based upon the future land use categories, including their densities or intensities of use as shown on the future land use map or map series, and the projected integrated transportation system. The analysis shall demonstrate integration and coordination among the various modes of transportation, including rail, airport and seaport facilities. The analysis shall address the need for new facilities and
expansions of alternative transportation modes to provide a safe and efficient transportation network and enhance mobility. The methodologies used in the analysis, including the assumptions used, modeling applications, and alternatives considered shall be included in the plan support document. The analysis shall address the effect of transportation concurrency management areas, if any pursuant to subsection 9J-5.0055(5), F.A.C., and the effect of transportation concurrency exceptions, if any, pursuant to subsections 9J-5.0055(6) and (7), F.A.C.
The analysis shall consider the projects planned for in the Florida Department of Transportation’s Adopted Work Program, long range transportation plan and transportation improvement program of the metropolitan planning organization, and the local transportation authority(ies), if any, and compatibility with the policies and guidelines of such plans.
The analysis shall demonstrate how the local government will maintain its adopted level of service standards for roads and transit facilities within its jurisdiction and how the level of service standards reflect and advance the purpose of this section and the goals, objectives, and policies of the future land use element and other elements of the comprehensive plan.
* * *
Petitioner has failed to prove that the designation of the University Parkway segments as LOS D is unsupported by data and analysis. In reducing these roadways' adopted LOSs from C to D, Sarasota County explained that the jurisdictional responsibility for this facility is shared with Manatee County, which already had designated the affected segments as LOS D.
Although data and analysis do not exist in the present record to support this action on the ground that these segments are constrained or even backlogged, the better reading of the action taken by the county is that it simply chose to reduce the adopted LOS, and this choice as an appropriate reaction to the data, as reflected by this record.
Likewise, Petitioner has failed to prove that the Cumulative Plan Amendments are not supported by appropriate data or that KH failed to collect or use data and apply these data in a professionally acceptable manner. Nothing in the record suggests a flaw in the original data that KH collected, which appears limited to some peak hour traffic counts, or the sources of data on which KH relied. The issue is whether the manual adjustments that Mr. Agrusa made to the FSUTMS output, which impacted the scope of the study area and the volumes projected for specific road segments, was professionally unacceptable, thus producing unreliable data and analysis that would undermine Sarasota County's attempt to ensure that the traffic impacts from SIPOC did not cause any road segments or intersections to go below their adopted LOSs.
The Legislative intent as to methods of data collection is clear: the issue is not to determine which of two professionally acceptable methods is superior. If multiple methods are professionally acceptable, the local government may
rely on whichever method among them that it chooses. The criterion of applying data in a professionally acceptable manner implies the same range of choice for the local government.
For transportation analysis, Florida Administrative Code Rule 9J-5.019(3) imposes specific criteria, not all of which apply to a development-specific plan amendment, as distinguished from the overall plan or a plan amendment of general applicability. Significantly, none of the above-cited provisions prohibits manual adjustment to model outputs. As to modeling, Rule 9J-5.019(3) provides only: "The methodologies used in the analysis, including the assumptions used, modeling applications, and alternatives considered shall be included in the plan support document." In the face of manual adjustments not shown to deviate from professional acceptable practice, this criterion is met by disclosure and documentation, which the KH documents contain.
Petitioner has also failed to prove that the Cumulative Plan Amendments are not consistent with the criteria of financial feasibility and a capital improvements schedule.
The requirement of financial feasibility is stated in Section 163.3177(2), Florida Statutes, which provides:
. . . the comprehensive plan shall be financially feasible. Financial feasibility shall be determined using professionally accepted methodologies and applies to the 5- year planning period, except in the case of
a long-term transportation or school concurrency management system, in which case a 10-year or 15-year period applies.
Similarly, Florida Administrative Code Rule
9J-5.016(3)(c)(1)f requires that a comprehensive plan contain policies that establish criteria to evaluate capital improvement projects, one of which criteria must address financial feasibility.
Addressing financial feasibility and the capital improvements schedule, Section 163.3177(3)(a)5, Florida Statutes, states:
A schedule of capital improvements which includes publicly funded projects, and which may include privately funded projects for which the local government has no fiscal responsibility, necessary to ensure that adopted level-of-service standards are achieved and maintained. For capital improvements that will be funded by the developer, financial feasibility shall be demonstrated by being guaranteed in an enforceable development agreement or interlocal agreement pursuant to paragraph (10)(h), or other enforceable agreement.
These development agreements and interlocal agreements shall be reflected in the schedule of capital improvements if the capital improvement is necessary to serve development within the 5-year schedule.
. . .
Also addressing financial feasibility and the schedule of capital improvements, Florida Administrative Code Rule
9J-5.016(4) states:
Requirements for Capital Improvements Implementation.
The comprehensive plan shall contain:
The schedule of capital improvements, for which the local government has fiscal responsibility, selected for the first five fiscal years, by year, after the adoption of the comprehensive plan, which shall reflect the need to reduce existing deficiencies, remain abreast of replacements, and to meet future demand including:
Project description and general location; and
Determination of consistency with individual comprehensive plan elements.
A list of projected costs and revenue sources by type of public facility for the five year period. Only for the purpose of determining the financial feasibility of the capital improvements element, projected revenue sources may include a local government’s present intent to increase the level or amount of a revenue source which is contingent on ratification by public referendum.
For concurrency purposes, Florida Administrative Code Rule 9J-5.0055(3)(c) acknowledges the role of developer agreements:
For transportation facilities (roads and mass transit designated in the adopted local government comprehensive plan), at a minimum, a local government shall meet the following standards to satisfy the concurrency requirement, except as otherwise provided in subsections (4)-(7) of this section.
At the time a development order or permit is issued, the necessary facilities and services are in place or under construction; or
A development order or permit is issued subject to the conditions that the necessary facilities and services needed to
serve the new development are scheduled to be in place or under actual construction not more than three years after issuance of a certificate of occupancy or its functional equivalent as provided in the adopted local government five-year schedule of capital improvements. The schedule of capital improvements may recognize and include transportation projects included in the first three years of the applicable, adopted Florida Department of Transportation five year work program. The Capital Improvements Element must include the following policies:
The estimated date of commencement of actual construction and the estimated date of project completion.
A provision that a plan amendment is required to eliminate, defer, or delay construction of any road or mass transit facility or service which is needed to maintain the adopted level of service standard and which is listed in the five- year schedule of capital improvements; or
At the time a development order or permit is issued, the necessary facilities and services are the subject of a binding executed agreement which requires the necessary facilities and services to serve the new development to be in place or under actual construction no more than three years after the issuance of a certificate of occupancy or its functional equivalent; or
At the time a development order or permit is issued, the necessary facilities and services are guaranteed in an enforceable development agreement, pursuant to Section 163.3220, F.S., or an agreement or development order issued pursuant to Chapter 380, F.S., to be in place or under actual construction not more than three years after issuance of a certificate of occupancy or its functional equivalent. [Section 163.3180(2)(c), F.S.]
There is no doubt in the present record as to the financial feasibility of the transportation improvements
required of SIPOC. They have already been constructed or their construction has been financially secured. The parties were reluctant to address post-adoption financial security posted by Intervenors--a limitation that applies to data, not necessarily financial feasibility. However, in multiple forms, Intervenors have undertaken to construct these improvements, and they have secured this undertaking.
There is some conflict as to whether the capital improvement schedule must list developer-provided infrastructure. The first sentence of Section 163.3177(3)(a)5, Florida Statutes, leaves this choice to the local government, but the last cited sentence of this statute requires the inclusion of any developer-provided infrastructure, if the capital improvement is necessary to serve development within the five-year timeframe of the schedule. On the other hand, Florida Administrative Code Rule 9J-5.016(4)(a)1 requires inclusion in the schedule of only those projects for which the local government has fiscal responsibility. This rule is consistent with the overall purpose of capital improvements provisions in comprehensive plans, which, as stated by Florida Administrative Code Rule 9J-5.016, is:
. . . to estimate the cost of improvements for which the local government has fiscal responsibility, to analyze the fiscal capability of the local government to finance and construct improvements, to adopt
financial policies to guide the funding of improvements and to schedule the funding and construction of improvements in a manner necessary to ensure that capital improvements are provided when required based on needs identified in the other comprehensive plan elements.
Certainly, the five-year capital improvements schedule contained in the Remedial Plan Amendments includes substantially all, if not all, of the transportation improvements to be provided, if not already provided, by Intervenors. Although the underlying traffic analysis covers a period shorter than the period covered by the five-year schedule, the focus of this schedule is on plan amendments directed to SIPOC, which is planned to reach buildout over the period covered by the traffic analysis. (In the event that buildout is delayed, other provisions in the development documents govern the availability of final development orders and assure concurrency.) Given the clear enforceability of this developer undertaking, adequate means for monitoring traffic impacts relative to capacity of road segments and intersections in the study area, and suspension of further development if traffic impacts become excessive, the Cumulative Plan Amendments, as focused exclusively on SIPOC, substantially respond to the requirements and criteria of a five-year capital improvements schedule.
Much of the hearing and proposed recommended orders were devoted to proportionate-share analysis concerning financial feasibility and capital improvements generally. This analysis was necessarily predicated upon a rejection of the KH traffic analysis, so as to leave open the possibility of traffic impacts from SIPOC causing road segments and intersections to fall below their adopted LOS standards. Because the KH traffic analysis has been accepted, proportionate-share analysis is irrelevant to this case. As noted by Section 163.3180(16)(f), Florida Statutes, the proportionate-share approach emerges only if concurrency would otherwise prevent the issuance of a final development order:
If the funds in an adopted 5-year capital improvements element are insufficient to fully fund construction of a transportation improvement required by the local government's concurrency management system, a local government and a developer may still enter into a binding proportionate-share agreement authorizing the developer to construct that amount of development on which the proportionate share is calculated if the proportionate-share amount in such agreement is sufficient to pay for one or more improvements which will, in the opinion of the governmental entity or entities maintaining the transportation facilities, significantly benefit the impacted transportation system. . . . The funding of any improvements that significantly benefit the impacted transportation system satisfies concurrency requirements as a mitigation of the development's impact upon the overall transportation system even if there remains
a failure of concurrency on other impacted facilities.
It is
RECOMMENDED that the Department of Community Affairs enter a final order finding the Cumulative Plan Amendments to be in compliance.
DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2008.
COPIES FURNISHED:
Lynette Norr
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Christopher Torres Greenberg Traurig, PA
625 East Twiggs Street, Suite 100
Tampa, Florida 33602
Stephen E. Demarsh
Office of the County Attorney
1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236-6808
Alan W. Roddy
Office of the County Attorney
1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236
Martha Harrell Chumbler Carlton Fields, P.A.
215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190
Shaw Stiller, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2160
Thomas Pelham, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 31, 2008 | Agency Final Order | |
| Aug. 08, 2008 | Recommended Order | Petitioner failed to prove that reducing LOS of a road lacked supporting data and analysis, that traffic data and analysis were inappropriate, and that the remedial plan amendment relied on transportation improvements not financially feasible |
