STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SEERINA FARRELL, ARIEL HORNER, ADELE SIMONS, MARJORIE HOLT, RONALD BROOKE, KELLY SEMRAD, AND CORNER LAKES ESTATES HOMEOWNERS ASSOCIATION, INC.,
vs.
Petitioners,
Case No. 16-4556GM
ORANGE COUNTY,
Respondent,
and
BANKSVILLE OF FLORIDA, INC.; CHCG LAND SERVICES, LLC; ROLLING
RANCH, LTD.; MARY RYBOLT LAMAR, INDIVIDUALLY; AND MARY RYBOLT LAMAR, AS TRUSTE OF THE ELOISE A. RYBOLT REVOCABLE TRUST,
Intervenors.
/
RECOMMENDED ORDER
A duly-noticed final hearing was held in this matter in Orlando, Florida, on March 27 through 29, 2017, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings.
APPEARANCES
For Petitioner Ronald Brooke:
Jane West, Esquire Jane West Law, P.L.
24 Cathedral Place, Suite 504 St. Augustine, Florida 32084
For Petitioners (except Ronald Brooke):
Ralf Gunars Brookes, Esquire Ralf Brookes Attorney
1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904
For Respondent Orange County:
Elaine Marquardt Asad, Esquire Orange County Government
201 Rosalind Avenue, 3rd Floor Post Office Box 1393
Orlando, Florida 32801
For Intervenor Banksville of Florida, Inc.:
David A. Theriaque, Esquire
Brent Spain, Esquire Theriaque & Spain
433 North Magnolia Drive Tallahassee, Florida 32308-5083
For Intervenor CHCG Land Services, LLC:
Scott A. Glass, Esquire Shutts & Bowen, LLP
300 South Orange Avenue, Suite 1000 Orlando, Florida 32801
For Intervenors Rolling R. Ranch, Mary Rybolt Lamar, and Mary Rybolt Lamar as Trustee:
Thomas P. Wert, Esquire
Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A.
420 South Orange Avenue, Suite 700 Orlando, Florida 32801
STATEMENT OF THE ISSUE
Whether Orange County Comprehensive Plan Amendments 2015-2- P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on
July 12, 2016 (the Plan Amendments), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2016).1/
PRELIMINARY STATEMENT
On July 12, 2016, Orange County (the County) adopted the Plan Amendments, which establish a new future land use category, Lake Pickett, in the County’s 2010-2030 Comprehensive Plan (Comprehensive Plan), and amend the County’s Future Land Use Map (FLUM) to designate 1,237 acres within the new category.
On August 11, 2016, Petitioners filed a Petition with the Division of Administrative Hearings (Division) challenging the Plan Amendments as internally inconsistent with the Comprehensive Plan, not based on relevant and appropriate data, and not providing meaningful and predictable standards for the use and development of land and meaningful guidelines for more detailed land development regulations, in violation of the Community Planning Act, chapter 163, Part II, Florida Statutes.
The case was originally assigned to Administrative Law Judge Bram Canter, and was transferred to the undersigned on August 18, 2016. On August 25, 2016, the undersigned granted Unopposed Petitions to Intervene filed by Banksville of Florida,
Inc. (Banksville), and CHCG Land Services, LLC (CHCG). Rolling R. Ranch, Ltd.; Mary Rybolt Lamar, Individually; and
Mary Rybolt Lamar, as Trustee of the Eloise A. Rybolt Revocable Trust (the Rybolt Intervenors) moved to intervene on
February 22, 2017, which motion was granted on March 9, 2017. On October 31, 2016, Petitioners filed a Second Amended
Motion to Amend Petition, which clarified and narrowed the issues in dispute, but in which Petitioner Brooke did not join. Petitioner Brooke obtained separate counsel. On November 2, 2016, the undersigned granted Petitioner Brooke’s Motion for Leave to File Brooke’s Amended Petition, which was deemed filed as of October 31, 2016, and the remaining Petitioners’ Second Amended Motion to Amend Petition. Subsequent to filing the Amended Petition for Hearing, Petitioner, Emily Bonilla, voluntarily dismissed her Petition.
A variety of other pre-hearing events are reflected on the docket, including Banksville’s demand for expeditious resolution, and subsequent withdrawal of same; CHCG’s withdrawal from the proceedings and subsequent renewed Petition to Intervene; as well as the temporary transfer of this case back to Administrative Law Judge Bram Canter in order to accommodate the demand for expeditious resolution, and subsequent re- transfer to the undersigned when the demand was withdrawn.
The case was initially set for final hearing January 9 through 12, 2016, in Orlando, Florida. In late December 2016, the final hearing was rescheduled for March 27 through 29, 2016.
The final hearing commenced as rescheduled. The parties’ Joint Exhibits J1 through J4 were admitted in evidence.
Petitioners Ariel Horner, Seerina Farrell, Adele Simons, Kelly Semrad, and Marjorie Holt testified on their own behalves and presented the testimony of Dr. John Fauth, accepted as an expert in conservation biology, vertebrate and invertebrate zoology, and statistical analysis; Ariel Horner, accepted as an expert in Florida ecology and ecosystem conservation; and Thomas Hawkins. Mr. Hawkins’ qualification as an expert in land use planning and growth management was challenged by Intervenor Banksville at the final hearing. Having heard Mr. Hawkins testimony and considered his background and education, the undersigned hereby accepts Mr. Hawkins as an expert in the areas tendered.
Petitioners’ Exhibits P1, P6A, P7, and P8 were admitted in evidence.
Richard Andrade testified on behalf of Corner Lakes Estates Homeowners’ Association (Corner Lakes), which offered no documentary evidence.
Petitioner Ronald Brooke testified on his own behalf and presented the testimony of Lara Diettrich, accepted as an expert in comprehensive planning, land use, and zoning. Petitioner
Brooke’s Exhibits P12 through P15, P35, P43, and P44 were admitted in evidence.
Respondent, Orange County (the County), and Intervenors jointly presented the testimony of John Weiss, accepted as an expert in transportation engineering and planning; Elizabeth Johnson, accepted as an expert in environmental conservation; and Alberto Vargas, accepted as an expert in land use planning and growth management. Banksville additionally presented the testimony of Jim Hall, accepted as an expert in land use planning and growth management; John Miklos, accepted as an expert in environmental and ecological assessments and environmental and ecological planning; and Dwight Saathoff.
Respondent and Intervenors’ Joint Exhibits J1 through J5, J8 through J16, J19, J21, J24 through 26, J28, J33, J36, J37, J45,
and J47 through J49 were admitted in evidence.
The undersigned granted the Rybolt Intervenor’s request for official recognition of three documents: (1) A Memorandum of Agreement between Rolling R. Ranch, Ltd., and the St. Johns River Water Management District (WMD) dated December 5, 2008;
(2) A special warranty deed between the same parties dated December 5, 2008; and (3) a quitclaim deed given by the St. Johns River WMD to the County dated February 19, 2009.
Certified copies of the three documents were incorporated into the record.
The six-volume Transcript of the final hearing was filed with the Division on May 11, 2017. The undersigned granted the parties’ Joint Motion for an Extension of Time to Submit Proposed Recommended Orders, and a subsequent Unopposed Motion for Extension of Time to Submit Proposed Recommended Orders from Intervenor Banksville. The parties timely filed Proposed Recommended Orders on June 16, 2017, which have been carefully considered by the undersigned in the preparation of this
Recommended Order.
FINDINGS OF FACT
The Parties and Standing
Petitioners, Seerina Farrell, Ariel Horner, Adele Simons, Marjorie Holt, and Kelly Semrad (the Individual Petitioners), own property and reside in the County. The Individual Petitioners submitted written or verbal comments, recommendations, or objections to the County during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of same (the Comment Period).
Petitioner, Ronald Brooke, owns property and resides in the County. Petitioner Brooke submitted written or verbal comments, recommendations, or objections to the County during the Comment Period.
Petitioner, Corner Lakes, owns property adjacent to the property subject to the Plan Amendments and operates a business in the County. Corner Lakes, by and through its representative, submitted comments, recommendations, or objections to the County during the Comment Period.
The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167.
Intervenor Banksville is one of the co-applicants for the Plan Amendments and owns real property directly affected by the Plan Amendments. Banksville timely submitted oral or written comments to the County in support of the Plan Amendments during the Comment Period.
Intervenor CHCG is one of the co-applicants for the Plan Amendments and is the agent of one of the owners of property directly affected by the Plan Amendments. CHCG timely submitted comments to the County in support of the Plan Amendments during the Comment Period.
The Rybolt Intervenors are owners of property directly affected by the Plan Amendments and submitted comments to the County in support of the Plan Amendments during the Comment Period.
The Property
The property subject to the Plan Amendments is 2,796 acres of land located in eastern Orange County between State Road 50 (SR 50 or Colonial Drive) on the south and the Orange/Seminole County line on the north.
The property lies wholly within the Econlockhatchee River Basin (Econ River Basin) and is open, active pasture land. The southern portion of the property is bounded on the west by South Tanner Road, a county road that intersects with SR 50 on the southwest corner of the subject property. Just beyond South Tanner Road to the west lies the Econlockhatchee Sandhills Conservation Area (ESCA).
The northern portion of the subject property is directly adjacent to the County-mandated area buffering the Econlockhatchee River (Econ River).
The subject property is bounded on the east by existing vested residential neighborhoods known as “rural settlements.” Corner Lake rural settlement is adjacent to the southern portion of the property, and Lake Pickett rural settlement is adjacent to the northern portion. Both of the adjoining rural settlements are served by Chuluota Road, another county road which intersects with SR 50 just beyond the frontage of the subject property. Chuluota Road runs north, where it intersects with Lake Pickett Road, which roughly bisects the
subject property, and continues to run north to its intersection with McCulloch Road at the Seminole County border.
The ESCA is approximately 710 acres of undeveloped property east of the Econ River previously used as pasture. Intervenors, Rolling R. Ranch and Rybolt, conveyed the property to the St. Johns River WMD in November 2008.
The following language in the Agreement for Sale or Purchase is relevant to the case at hand:
It is the intention of the Seller [Intervenors Rolling R. Ranch and Rybolt] to develop Seller’s Retained Lands into a mixed use project with Development of Regional Impact review and approval for substantial density. . . . Buyer expressly agrees Buyer, as a neighboring property owner, shall not require any buffering or setbacks on Seller’s Retained Lands. In the event any local authority requires a setback between the Property and the Seller’s Retained Lands, Buyer will accept 50% of such setback to be placed upon the Property up to a maximum of 35 feet. No roads, swales, ditches, fencing, landscaping, or other improvements shall be constructed by Seller within any setback area on the Property.
The ESCA is owned by the St. Johns River WMD and, in part, by the County.
The ESCA is a significant natural resource managed for a public benefit, namely, protection of the Econ River Basin, within which the Plan Amendments are located.
The ESCA also hosts hiking and horseback riding trails and is open to the public for passive recreation use.
The Plan Amendments
The Plan Amendments comprise both a text amendment to the Future Land Use Element (FLUE) of the County’s Comprehensive Plan and an amendment to the County’s FLUM.
The Text Amendment
The text amendment creates “Lake Pickett” (LP) as a new future land use category within FLUE Goal 6: Protection of Rural Land Resources and Other Assets. LP is codified in FLUE Objective 6.8, which limits the application of the category to the area designated as the “Lake Pickett Study Area,” or LPSA, established on the County’s FLUM by the corresponding map amendment, and describes the geographic boundaries of the LPSA. Acknowledging that the new category will allow dense development within rural areas, Objective 6.8 provides that “[t]he LP designation manages the transition of development from surrounding rural neighborhood densities and preservation areas to more dense development clustered towards the center of the [LPSA].”
Objective 6.8 provides that “[c]ompatibility is ensured on LP designated lands through the use of ‘Transect Zones’,” among other practices. “Transect Zones allow
development to occur by gradually transitioning from less to more dense development.” The objective continues, as follows:
Each Transect Zone shall have a stated density unique to that Transect, and each series of Transect Zones shall build upon each other from the least dense Transect to the most dense Transect. Transect Zones allow contiguous rural character to be preserved which may include like-to-like lot configurations along the boundary.
Objective 6.8 is implemented by new Policies 6.8.1 through 6.8.15, which establish “Guiding Principles” for all future development in the LPSA; define the type, density and intensity of development in each Transect Zone; provide for buffers and other compatibility measures along the perimeter; and provide requirements for open space, community space, agricultural uses, community centers, the street network, trail system, a “green infrastructure plan,” neighborhood schools, and service by public infrastructure, including water and wastewater.
Policy 6.8.2 provides for the following Transect
Zones:
T1 Natural/Wetland: “[N]atural lands” and areas that will remain undeveloped and/or designated for agriculture use, passive recreation, conservation, or related activities ”
T2 Rural: “[S]parsley settled lands in open or cultivated states.” The policy allows an “average density” of two dwelling units per acre (2du/acre).
T3 Edge: “[P]redominately single-family detached residential uses within walkable neighborhoods” and includes community buildings, community gardens and parks, and “central focal point uses” which are undefined. The policy allows an “average density” of 5du/acre, a maximum floor area ratio (FAR) of .25, or a combination thereof.
T4 Center: Allows a “mix of residential
. . . and non-residential uses, including commercial, office, service, and civic uses that serve a Lake Pickett community as well as the surrounding area.” The policy allows an “average residential density” of 6du/acre and an “average non- residential intensity” of .15 FAR. The policy requires location of “higher concentrations of development” within the “most southerly portion” of the Lake Picket Study Area “adjacent to SR 50, at a maximum FAR of 1.0.”
Policy 6.8.8 calls for development of two separate communities: one north and one south of Lake Pickett Road.
Policy 6.8.9 requires development to be organized into neighborhoods, maximum size of 125 acres each, organized around a “centralized focal point” such as a park, community garden, community center, civic building or use, day care facility, or “a similar type of use.” Neighborhoods shall contain a mix of housing styles and/or lot sizes “located within a 1/4-mile from the centralized focal point,” which shall “average a minimum of one acre in size,” and be connected to trails or “complete streets.”
Policy 6.8.14 requires all development within the LPSA to be served by public water, wastewater, and reclaimed water facilities operated by the County, but acknowledges the County may require the developer to prepay for a portion of the capacity necessary to serve the development.
Objective 6.9 and its implementing policies dictate the process for the property owners to obtain a FLUM amendment to LP.
The FLUM amendment application must include a draft Conceptual Regulating Plan (CRP), a proposed development program, a justification statement, an Orange County Public Schools (OCPS) Consistency Determination Application, a Transportation Study, and a proposed community meeting schedule.
The CRP is described as “a general and illustrative representation of the proposed development and location of the transects.” Policy 6.1.9 requires the following items to be depicted on the CRP, or attachments thereto:
General location of Transect Zones;
General location and types of the proposed agricultural uses (if applicable), natural areas, and transitional treatments;
Location of existing and planned major roadways, trails or other transportation nodes;
Location of potential and required connections, including external connections to adjacent roadways and those
between the two Lake Pickett communities, and required internal connections between neighborhoods;
General location of public school sites and a copy of the application for a Capacity Enhancement Agreement with OCPS;
Net developable area for the project and for each of the Transect Zones; and
Overall proposed community development program.
According to Policy 6.1.9, a “CRP shall be provided during the transmittal process, and shall be refined throughout the review process” for the FLUM amendment.
Properties obtaining the LP FLUM designation must be rezoned to Lake Pickett Planned Development (LP PD). The PD Regulating Plan (PD-RP) establishes the final locations of Transect Zones, open space and preservation areas, streets, neighborhoods, schools, trails, and parks.
The text amendment does not require the PD-RP to be incorporated with the FLUM amendment to LP. The proposed development plan, including average densities and intensities by Transect Zone “shall be included and adopted as part of the Lake Pickett PD-RP.” The policy provides the development program “shall be substantially consistent with the program submitted with the CRP and approved with the LP FLUM amendment.” If the developer requests to increase the development totals for a Lake
Pickett PD-RP, such change must be approved through an application to amend the Comprehensive Plan.
The Map Amendment
The FLUM amendment redesignates 1,237 acres of land, the southern portion of the LPSA, from the Rural to the LP category. The property encompasses “Lake Pickett South,” which is roughly bounded by Lake Pickett Road on the north, East Colonial Drive to the south, Chuluota Road on the east, and South Tanner Road on the west. The ESCA lies west of South Tanner Road, the property’s western boundary.
The applicants proposed a FLUM amendment for the North Lake Pickett Community, which was not approved by the County and is not considered in the case sub judice.
The property subject to the amendment is currently undeveloped and has a FLUM designation of Rural with a density limitation of 1du/10 acres.
The LPSA is located wholly outside of the County’s Urban Service Area (USA).
USA/RSA Concept
The County employs the USA concept as “an effective fiscal and land use technique for managing growth.” The USA identifies areas where the County has primary responsibility for providing infrastructure and services to support urban development.
The County has an overarching goal to direct its growth to the USA. FLUE Objective 1.1 states the County “shall use urban densities and intensities . . . to direct development to the [USA] and to facilitate such development.” Policy 1.1.1 states, “Urban uses shall be concentrated within the [USA]” except as specified in particular designations. Policy 1.2.2 requires that “Urban development during the 2007-2030 planning period . . . will occur only in the [USA]” and established exception areas.
As part of its year 2000 update to the Comprehensive Plan, the County amended the plan consistent with a “strategy to focus development within the County’s USA.” See Policy 6.2.1.
The USA boundary and acreage are based on the supply of usable land needed to accommodate the County’s population and employment forecasts through the year 2030.
Policy 1.2.2 prohibits urban development outside the USA boundary, with certain inapplicable exceptions, during the 2007-2030 planning period.
Residential development densities allowed within the USA range from Low Density Residential (LDR), up to a maximum of 4du/acre, to High Density Residential (HDR), up to a maximum of 50du/acre.
That portion of the County outside the USA is designated as the Rural Service Area (RSA). The RSA designation
is a tool for “managing agricultural lands, environmental lands, and historic resources.” To preserve and promote the “intended rural character” of the RSA, the County regulates the scale, density, and intensity of new development in the RSA. The only FLUE category correlating with the RSA is “Rural,” in which the County limits residential development to a maximum density of 1du/10 acres.
Zoning Districts which correspond with the Rural land use category are Agriculture 1 (A-1), Agriculture 2 (A-2), Agriculture Residential (A-R), and Rural Country Estate Residential (R-CE-5).
Exceptions to RSA Density Limitation
The FLUE recognizes specific, established exceptions to the density limitation of residential development at 1du/10 acres within the RSA. These include Rural Settlements, Growth Centers, Specific Area Plans (SAP), and the Innovation Way (IW) Overlay.
1. Rural Settlements
When the Comprehensive Plan was adopted in 1991, some “pockets” of existing development at densities greater than 1du/10 acres were intentionally excluded from the USA. These “rural settlements” are essentially “grandfathered” from the prohibition against urban densities within the RSA. Rural settlements recognize the need to maintain agricultural areas
and rural uses in the RSA, while providing for rural communities. Some rural settlements “allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas.”
Pursuant to Policy 6.2.1, rural settlements may not be expanded beyond their current boundaries and the County may not establish any new rural settlements.2/
Rural Settlement (RS) categories were established at a range of densities between 1du/5 acres (RS 1/5) to 2du/acre (RSLD 2/1). These categories recognize and preserve the development patterns that existed at the time the Comprehensive Plan was adopted.
Not all rural settlements were built out at the time of plan adoption. No plan amendments may be approved within rural settlements to RSLD (2du/acre) or higher densities, except for certified affordable housing projects. No plan amendments may be approved for densities in rural settlement at densities higher than 1du/acre.
Lake Pickett South is located adjacent to the Corner Lake rural settlement, which is designated LDR and is built out at 4du/acre. Pursuant to Policy 6.2.15, new residential development in a rural settlement is restricted to a density of 2du/acre, which may only be located in limited areas adjacent to
higher density or intensity urban development in adjacent municipal jurisdictions.
2. Specific Area Plans
In 1995, the County created a Village land use classification to realize a long-range planning concept for Horizon West, a 16,846-acre development in west Orange County. FLUE Goal 4 and Objective 4.1 describe the purpose of the classification, as follows:
GOAL FLU4 HORIZON WEST. It is Orange
County’s goal to ensure sustainable, quality development in Southwest Orange County to allow a transition from rural to urban uses while protecting environmental quality.
OBJ FLU4.1 The Village land use classification has been designed to address the need to overcome the problems associated with and provide a meaningful alternative to the leap-frog pattern of sprawl now occurring in western Orange and eastern Lake County; create a better jobs/housing balance between the large concentration of employment in the tourism industry and surrounding land uses; create a land use pattern that will reduce reliance on the automobile by allowing a greater variety of land uses closer to work and home; and, replace piecemeal planning that reacts to development on a project-by-project basis with a long-range vision that uses the Village as the building block to allow the transition of this portion of Orange County from rural to urban use through a specific planning process that uses a creative design approach to address regional, environmental, transportation, and housing issues. The Village land use classification shall be implemented through the adoption of Specific
Area Plans (SAPs) for the Villages and a Town Center.
FLUE Goal 4 is a long-range planning tool undertaken by the County in cooperation with the state land planning agency pursuant to section 163.3245, titled “Sector Plans.” This alternative to the Development of Regional Impact state review process was initiated by the 1998 Legislature to “promote and encourage long-term planning for conservation, development, and agriculture on a landscape scale,” and to “avoid duplication of effort” of data-gathering and analysis for developments of regional impact “while ensuring the adequate mitigation of impacts to applicable regional resources and facilities[.]”
FLUE GOAL 4, Objective 4.1, and their implementing policies comprise 40 pages of the County FLUE and comprehensively govern the development planning for the area. The concept envisions development of a series of master planned “Villages,” ranging from 1,000 to 3,500 acres, with between two and four neighborhoods complete with diverse housing types, shops, workplaces, schools, parks, and civic facilities.
Each Village is modeled on “an urban development pattern,” complete with a Village center, containing a mix of residential, office, commercial, institutional and public uses to serve surrounding neighborhoods; neighborhood centers, with a school, park, or other “focal point,” and convenience retail
operations and offices to serve the immediate neighborhoods; and neighborhoods with open space, varying lot sizes and housing types, locating higher density housing closer to the neighborhood center.
The approval process for Horizon West Village SAPs, includes development first of a recommended plan, based on public and County staff input on a presentation of alternative master plans at public workshops, then refinement of the recommended plan, through additional informational workshops, and submittal of a Final Master Plan to the County for review.
The Village SAP is structured to require a minimum net density of 5du/acre. Thus, Horizon West is a specific exception to the density limit of 1du/10acres in the RSA.
In the case at hand, the Intervenors have not applied for a SAP. However, the LPSA text amendment mirrors many of the development characteristics of Horizon West Village concept.
3. Growth Centers
The Growth Center FLUE designation is available only as a Joint Planning Area with an outside jurisdiction (i.e., adjoining county or municipal government). Growth Centers recognize urban development outside of, and adjacent to, the unincorporated areas of the County.
The County has established two Growth Centers: a Northwest Growth Center and a Growth Center/Resort located in the southeast.
The density and intensity of the growth centers is established through a Planned Development (PD) process.
4. Innovation Way Overlay District
The Innovation Way (IW) Overlay is established by FLUE Objective 5.1, which reads as follows:
The Innovation Way Overlay is a conceptual transect-based overlay designation where the County envisions a transit-ready, multi- modal mixed-use, walkable community with sustainable economic development, adequate public infrastructure, and the protection and resource management of environmentally sensitive areas.
The IW Overlay utilizes transect-based planning and “incremental urbanism” to “design complete communities requiring walkable streets, mix of uses, transportation options, and housing diversity.” FLUE Policy 5.1.5.
The IW “Conceptual Urban Form” is adopted on the County FLUM as the “generalized and illustrative location and extent of transect zones that collectively depict the desired urban form for Innovation Way.”
Similar to the plan amendment process provided for LP, the IW plan amendment process requires rezoning through as a PD, which will determine the adopted boundaries and locations of
transect zones. The “proposed location of the transects shall be illustrated on the [Conceptual Regulating Plan] during the [FLUM] amendment process and finalized in the approved IW-PD- RP.” FLUE Objective 5.2.
The IW Overlay district utilizes transect zones T1 through T5, and T-SD, a special district zone.
Zone T3 accommodates neighborhood development which must be “walkable, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space.” Each neighborhood must contain a central “focal point.” Although the specific density will be set in the PD-RP, FLUE Policy 5.1.7 establishes a “planned yield” of 3-4du/acre
within T3, with a range of 1-10du/acre.
Zone T4 accommodates town centers within IW, and provides “a mix of residential, office, retail, light industrial, and high-tech/clean-tech uses.” FLU Policy 5.1.7 establishes a “planned yield” of 7du/acre within T4, with a range of 4- 20du/acre.
The development pattern of the LP district is substantially similar to the urban form described for IW, and the use of transect-based planning to transition from surrounding rural development to more dense development within RP.
Expansion of the USA
The County allows for expansion of the USA boundary only in limited circumstances. FLUE Objective 1.3 and implementing policies provide a process for evaluating applications for expansion of the boundary. An applicant must submit data and analysis to demonstrate that the development would not constitute urban sprawl and is needed to satisfy acreage demands of the projected population.
FLUE Policy 1.2.4 lists the applications which have met the criteria and are recognized as expansions to the USA boundary. The list contains approximately 38 developments ranging in size from 1.23 acres to 2,549 acres.
In the case at hand, Banksville and CHCG have not applied for an expansion of the USA to encompass the LPSA. In fact, Jim Hall, one of the developer’s consultants, expressed his dismissal of an expansion to the USA to accommodate LPSA because expansions have “a ton of rules” associated with them.
Challenges to the Plan Amendments
A. Internal Inconsistency
Petitioners allege the Plan Amendments are internally inconsistent with a number of Comprehensive Plan goals, objectives, and policies. Principle among them are the goals, objectives, and policies establishing the USA/RSA development framework: FLUE Goal 1, Objective 1.1, Policy 1.1.1,
Objective 1.2, Policies 1.2.1 and 1.2.23/; Goal 6, Objective 6.1,
and Policies 6.1.1, 6.1.2, and 6.1.3.
The implicated goals, objectives, and policies read, as follows:
GOAL FLU1 URBAN FRAMEWORK. Orange County
shall implement an urban planning framework that provides for long-term, cost-effective provision of public services and facilities and the desired future development pattern for Orange County.
OBJ FLU1.1 Orange County shall use urban densities and intensities and Smart Growth tools and strategies to direct development to the [USA] and to facilitate such development (See FLU1.1.2.B and FLU1.1.4). The [USA] shall be the area for which Orange County is responsible for providing infrastructure and services to support urban development.
POLICIES
FLU1.1.1 Urban uses shall be concentrated within the [USA], except as specified for the Horizon West Village and Innovation Way Overlay (Scenario 5), Growth Centers, and to a limited extent, Rural Settlements.
* * *
OBJ FLU1.2 URBAN SERVICE AREA (USA) CONCEPT; USA SIZE AND MONITORING. Orange
County shall use the [USA] concept as an effective fiscal and land use technique for managing growth. The [USA] shall be used to identify the area where Orange County has the primary responsibility for providing infrastructure and services to support urban development.
POLICIES
FLU1.2.1 The [USA] boundary, and its acreage allocation, shall be based on the supply of usable land needed to accommodate the County’s population and employment forecasts by Year 2030 with respect to the County’s desired development pattern, the County’s ability to provide urban services and facilities, and the County’s urban strategies to achieve its desired development pattern.
FLU1.2.2 Urban development during the 2007- 2030 planning period, as identified in FLU1.2.1, will occur only in the [USA] and the established boundary for the Horizon West SAP (identified on Map 2 in the Future Land Use Element of the Comprehensive Plan) and the Innovation Way Overlay (Scenario 5)
.
* * *
GOAL FLU6 PROTECTION OF RURAL LAND RESOURCES AND OTHER ASSETS. The County will
manage land uses within the [RSA], including agricultural lands, environmental land including the Wekiva Area, historic resources and Rural Settlements, so as to conserve these assets and their values.
OBJ FLU6.1 RURAL SERVICE AREA. Orange
County shall designate that portion of the County outside the [USA] as the [RSA]. The intended rural character and assets of the [RSA] shall be promoted through the following policies.
POLICIES
FLU6.1.1 The Future Land Use correlation for the [RSA] is:
Future Land Use (R) | Zoning |
Rural/Agricultural (1DU/10 AC) | A-1, A-2, A-R, R-CE |
FLU6.1.2 Orange County shall enforce criteria to ensure the scale, and density and/or intensity of development within the [RSA] so that it promotes the intended rural character. The regulations may include, but shall not be limited to, height limitations and buffer requirements.
FLU6.1.3 Residential uses in areas designated Rural shall be limited to a maximum density of 1du/10 acres. Density shall refer to the total number of units divided by developable land area, excluding natural water bodies and conservation areas (wetland areas). Agriculturally zoned areas that do not have active agricultural use may be rezoned to an appropriate residential category. Cluster zoning shall not be permitted in the [RSA] except where required for the protection of significant environmental features, such as Wekiva Study Area, Class I conservation area or rare upland habitat.
Petitioners allege the Plan Amendments are inconsistent with the above-cited provisions because they allow urban development within the RSA, contrary to policy direction to concentrate urban uses within the USA; contrary to policies which prohibit urban development outside of the USA, Horizon West, and I W Overlay through 2030; and inconsistent with these strategies to achieve “the County’s desired development pattern” separating urban from rural uses through the USA/RSA tools.
Respondent and Intervenors meet this allegation with an argument that the LP category does not constitute urban development. Indeed, much of the expert witness testimony on
all sides focused on the issue of whether the development authorized by the Plan Amendments is urban in character.
The experts agreed that the Comprehensive Plan does not define “urban development” and that the County has discretion to determine the characteristics of urban development within its jurisdiction. The experts further agreed that the “urban-ness” of development is not solely a factor of density, but also depends on factors, such as the uses themselves, as well as buffering, height limitations, and relationship between uses.
The experts are correct that the Comprehensive Plan contains no glossary definition of “urban development,” which determines the specific threshold at which residential density becomes “urban.” The experts disagreed over whether a residential density of 4du/acre was rural or urban, and the parties’ arguments in their Proposed Recommended Orders rely on that testimony to varying degrees.
None of the expert witness testimony on the issue of urban versus rural was persuasive. Testimony regarding whether 4du/acre was urban or rural was essentially irrelevant, in light of the fact that the Plan Amendments authorize densities of 6du/acre in T4. Whether 4du/acre is an urban or rural density is not dispositive of the issue. Moreover, because the Plan
Amendments regulate density in terms of averages, they authorize densities greater than 4du/acre and 6du/acre in T3 and T4 zones.
The experts on all sides ignored the plethora of evidence within the Comprehensive Plan itself that reflects the County’s determination of what constitutes urban development. The testimony of Petitioners’ experts, combined with the Comprehensive Plan itself, was the most reliable and persuasive evidence on this issue.
For residential development within the USA, the Comprehensive Plan identifies four corresponding FLUM categories, ranging from LDR at up to 4du/acre, to HDR at up to 50du/acre.
By contrast, for residential development within the RSA, the County has identified only one corresponding FLUM category, Rural/Agricultural at 1du/10 acres. See Policy 6.1.1. It is of primary importance to note that this is the only future
land use category which corresponds with the RSA. In setting its goals for future development within the RSA, the County has adopted a policy limiting future residential development to a
very low density.
Even where the Comprehensive Plan acknowledges and grandfathers the preexisting “rural settlements” within the RSA at densities greater than 1du/10 acres, the Comprehensive Plan restricts the density of future buildout. The Comprehensive
Plan recognizes rural settlements with LDR and Low-Medium Density Residential (LMDR) (max. 10du/acre) FLUM designations, but prohibits other properties within rural settlements from being amended to allow future development at those densities (except for certified affordable housing projects). See Policy
6.2.7. In fact, the Comprehensive Plan prohibits any FLUM amendments to residential densities in rural settlements exceeding 1du/acre. See Policy 6.2.9. Further, the boundaries
of rural settlements may not be expanded, and no new rural settlements may be established. See Policy 6.2.1.
In summary, the Comprehensive Plan acknowledges preexisting rural settlements in the RSA at densities as high as 10du/acre, but recognizes those as urban, not rural, densities. Even recognizing those urban densities preexisted the RSA designation, the Comprehensive Plan limits future changes to a much lower density of 1du/acre.
Much of Respondent and Intervenors argument turned on the fact that the development surrounding the LPSA was at densities as high as 4du/acre, which was not inconsistent with the density proposed for the LPSA. This argument misses the point that the County grandfathered in those densities as urban within the RSA. The argument that the maximum densities proposed for the LPSA, up to 6du/acre in T4, is consistent with surrounding development is a red herring. It ignores the clear
direction the Comprehensive Plan has set for future development, regardless of the exceptions that exist. It is contradictory for the County to treat the preexisting densities as exceptions, but justify the Plan Amendments, which propose future similar densities, based on the existence of those exceptions.
In an apparent attempt to overcome the fact that the LPSA densities are similar to surrounding development and, thus, may be found to be urban densities, Respondent and Intervenors argue that density must be calculated based upon the net allowable acreage of the community, rather than the acreage of the individual T3 or T4 zone.
Lake Pickett South contains 835 developable acres and the LP category authorizes 2,078 dwelling units across that community. Calculated using that method, the average net residential density for Lake Pickett South is 2.49du/acre. Hence, the proponents argue, the Plan Amendments authorize development at densities lower than the surrounding vested communities, thus, the LPSA development is at rural densities.
Assuming, arguendo, Respondent’s and Intervenors’ contention is true, then the Plan Amendments cluster the average density of 2.49du/acre within the T2, T3, and T4 zones at densities as high as 6du/acre. Under that scenario, the Plan Amendments are internally inconsistent with FLUE Policy 6.1.3, which does not allow clustering of development within the RSA.
As all the experts agreed, density alone does not determine whether the development authorized by the Plan Amendments is urban as opposed to rural. Other considerations include the uses authorized, as well as the development pattern and restrictions thereon.
The Comprehensive Plan, clearly and specifically, articulates exceptions to the 1du/10acre density limit for future development in the RSA based upon particular considerations. For Horizon West, the consideration is the Village program of development directed at comprehensive, rather than piecemeal, development of a huge undeveloped area in the County’s southwestern area. For the Growth Centers, it is the recognition of the impact of development in the unincorporated County on adjoining local governments, and requiring joint planning for that development.
Significantly, the Comprehensive Plan recognizes these exceptions as urban development, based upon both the densities and intensities of uses allowed, as well as development patterns and restrictions.
The Comprehensive Plan recognizes Growth Centers as urban development implemented through PD zoning. See Policy
1.1.4.F.
Villages within Horizon West have been approved with minimum overall net densities as high as 4du/acre (Village H and
Town Center) and as high as 7du/acre (Village I). See Policy
4.1.4. These residential densities are recognized as urban densities.
Furthermore, the development plan for Village development is specifically recognized in the Comprehensive Plan as an “urban development pattern.” See Policy 4.1.1 The characteristics identifying the Villages as an urban development pattern include the following:
The requirement for a “series of integrated neighborhoods containing housing, shops, workplaces, schools, parks, and civic facilities essential to the daily life of Village residents.”
The Village, and each neighborhood, shall be developed with a “center focus,” such as commercial, civic, cultural or recreational uses.
Housing must be within a 1.2 mile radius of the Village Center, and where possible, housing units within a neighborhood should be within one-half mile of the neighborhood center.
Neighborhoods shall encourage development of a variety of lot sizes and housing types.
Each Village must have a well-defined edge, such as greenbelts or wildlife corridors permanently protected from development, as well as open space to serve the residents recreational needs in the form of squares, greens and parks. See Policy 4.1.1A., B., E., F., and G., and 4.1.5
In addition to the requirement for “ample open space,” in the form of squares, greens, and parks, an additional
7.5 percent of the developable land within each project must be permanently allocated to public open space.
The LPSA encompasses a smaller land area than Horizon West, and will develop on a smaller scale, but in a very similar development pattern under the Plan Amendments. Similar to the “Village Principles” for Horizon West, the LP “Guiding Principles” require that each of the two communities:
Be organized as neighborhoods designed around a “centralized focal point,” such as a park, community center, or civic building/use.
Interconnect the communities within the LPSA by a multi-purpose trail linking each neighborhood focal point, such as the school or civic use.
Have a minimum 35 percent open space, which may be comprised of both preservation areas, agricultural areas, buffers, neighborhood parks, and trail systems, as well as civic uses, community centers, and other built facilities.
In addition, the LP Guiding Principles require each neighborhood to:
Provide for a mix of housing styles and/or lot sizes.
Be walkable, and no more than 125 acres in size.
Locate housing within a quarter mile of the central focal point.
Connect the central focal point to trails or “complete streets,” as well as schools and community parks.
The Plan Amendments authorize a pattern of development in the LPSA recognized in the Comprehensive Plan as an urban development pattern.4/
Like the IW Overlay district, the RP category utilizes transect-based planning to provide a transition from rural uses outside the LPSA, to the more dense and intense uses at its core. The transect-based approach is specifically recognized by the Comprehensive Plan as comprising an “urban form” of development.5/ See Policy 5.1.2.
Further, the development pattern for LP is similar
to IW:
T2 Low density development in a traditional rural setting;
T3 Walkable neighborhoods, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space;
Neighborhoods designed around a central focal point with dwellings located in close proximity thereto;
School sites centrally located to serve neighborhoods;
T4 Town Centers with a mix of residential, office, retail, etc.
The Comprehensive Plan further identifies certain uses as urban, rather than rural. Policy 1.1.4 denotes office, commercial, industrial, institutional, and educational uses, as “predominantly urban” in use. The policy notes that these uses are predominantly found in the USA, but “may also be located within the rural settlements on a limited basis.” The policy goes on to acknowledge these uses are available in the USA as “Urban Mixed Use Option,” such as PD category. This policy also acknowledges allowance of these types of urban development within the RSA exception areas--Horizon West, International Drive Activity Center, and Growth Centers--as discussed previously.
By contrast, Objective 6.1 and its implementing policies address only rural residential, agricultural, and agribusiness uses, and some institutional uses (e.g., wastewater treatment plants and landfill facilities) as allowable future
land uses in the RSA. This section of the Comprehensive Plan also allows for consideration, by special exception, location of uses “that by their nature are appropriate to locate in the [RSA],” such as hazardous operations, gun ranges, landfills, and kennels.
The Plan Amendments authorize development of predominantly urban uses within the RSA, but not within rural settlements or one of the previously designated exception areas.
Nevertheless, Respondent and Intervenors maintain that development authorized by the Plan Amendments is not urban because the Plan Amendments “prohibit development which would have an overall urban density or intensity.”
It is undisputed that the LPSA will allow residential development at a density of up to 5du/acre in T3 zones, and up to 6du/acre in T4 zones. Respondent and Intervenors refer to these as “small pockets of property” within the RSA which would have higher densities “more associated with urban development levels.” However, Respondent and Intervenors argue these small pockets are not prohibited by Policy 1.1.1 which requires that “[u]rban uses shall be concentrated in” rather than “limited to” the USA. Respondent and Intervenors ignore the language that the existing Comprehensive Plan also specifically limits future urban densities, which are not “concentrated in” the USA, to Horizon West, Growth Centers, IW Overlay, and “to a limited extent,” Rural Settlements. The policy language does not allow urban density anywhere else within the RSA. Instead, the policy directs urban densities outside of the USA to areas previously designated and planned for those densities.
Based on the preponderance of the evidence, under the existing Comprehensive Plan, the density, uses, and pattern of development authorized by the Plan Amendments is urban, rather than rural.
Jim Hall, Intervenors’ planning expert, acknowledged that he based the LPSA concept on these “exception areas” where “new rules” apply.
Additionally, Dwight Saathoff, contractor purchaser of portions of Lake Pickett South, as much as admitted that the development approved for Lake Pickett South is urban, rather than rural, when he prepared a power point presentation for the adoption hearing. Based on the power point, Mr. Saathoff testified that “the Rural Service Area acreage would go from
58.6 percent of the total land, and with the Grow, it would be
58.4 percent. The Urban Service Area land was 41.4 and 41.6 with approval of the Grow.” [Tr. 595:3-6]. Mr. Saathoff’s testimony further supports a finding that the project converts rural land to urban use, without expanding the USA boundary to do so.
The Plan Amendments are inconsistent with FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objectives 1.2, Policies
1.2.1 and 1.2.2; Goal 6, Objective 6.1, Policies 6.1.1, 6.1.2, and 6.1.3.6/
Petitioners next challenge the Plan Amendments as inconsistent with FLUE Objective 1.3 and Policies 1.3.1
and 1.3.2.
FLUE Objective 1.3 is titled “Application for Urban Service Area Expansion,” and prohibits new expansions of the USA
unless supported by data and analysis that the expansion is consistent with other objectives, and requires expansions to be evaluated by the criteria established in Policies 1.3.1
and 1.3.2.
Intervenors did not submit the Plan Amendments as an application to expand the USA boundaries. The Plan Amendments do not implicate this objective and these policies.
The Plan Amendments are not inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2.
Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Objectives 6.2 and 6.3.
FLUE Objective 6.2 reads as follows:
RURAL SETTLEMENT. Rural Settlements provide for a rural residential lifestyle. In some instances, Rural Settlements allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas. Rural Settlements were intended to recognize and preserve existing development patterns at the time the CP was adopted in 1991. The creation of Rural Settlements recognized the need to maintain agricultural and rural uses in the [RSA], while providing for rural communities.
The Plan Amendments do not propose a rural settlement, a land use change within a rural settlement, or a boundary expansion of an existing rural settlement. Petitioners offered no persuasive evidence that the Plan Amendments implicate this policy.
FLUE Objective 6.3 reads as follows:
OBJ FLU6.3 Orange County shall protect and preserve certain existing Rural Settlements and their established neighborhoods, which by their particular location may be impacted by adjacent urban uses. This objective shall be made measurable by implementing the following policies:
Petitioners did not challenge the Plan Amendments as inconsistent with any of the implementing policies, which enumerate development restrictions and procedures applicable to the following rural settlements: Lake Hart/Lake Whippoorwhil, Lake Avalon, and Wedgefield.
The LPSA is not located in proximity to the listed rural settlements and Petitioners introduced no evidence that the Plan Amendments would have any impact on those rural settlements.
The Plan Amendments are not inconsistent with FLUE Objectives 6.2 and 6.1.
Petitioners also challenge the Plan Amendments as inconsistent with FLUE Goal 2, Objective 2.1, and Policy 2.2.17 which read, as follows:
GOAL FLU2 URBAN STRATEGIES. Orange County
will encourage urban strategies such as infill development, coordinated land use and transportation planning, and mixed-use development, which promote efficient use of infrastructure, compact development and an
urban experience with a range of choices and living options.
* * *
OBJ FLU2.1 INFILL. Orange County shall promote and encourage infill development through incentives identified in the Land Development code for relatively small vacant and underutilized parcels within the County’s established core areas in the [USA].
* * *
FLU2.2.17 Throughout the planning horizon, the County shall provide policy and program mechanisms that further the principles of sustainability, including limiting urban sprawl, protecting wildlife and environmentally sensitive natural areas, promoting efficient use of land and water, and creating an environment conducive to quality building and promoting sustainable economic development.
The Plan Amendments interfere with and contradict the stated goal of promoting urban strategies such as infill. The Plan Amendments do, as Petitioner’s expert testified, exactly the opposite by directing urban development to areas outside the USA.7/
Objective 2.1, by its plain language, provides strategies applicable only to “relatively small vacant and underutilized parcels within” the [USA]. The objective is inapplicable to the LPSA.
The cited policy requires the County to undertake policies and programs to limit urban sprawl, protect wildlife
and environmentally sensitive areas, and promote efficient use of land and water. Petitioners presented no evidence that the County has not undertaken such broad policies and programs.
The County introduced in evidence its Conservation Ordinance (Article X, Orange County Land Development Code), and its Econ River Protection Ordinance (Article XI), local programs appearing to implement Policy 2.2.17. Whether the Plan Amendments conflict with any of the implementing land development regulations is a matter beyond the scope of this proceeding.
The Plan Amendments are inconsistent with FLUE Goal 2, but, at least arguably, consistent with Objective 2.1 and Policy 2.2.17.
Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Policy 6.4.7, which reads as follows:
Orange County shall provide for compatible public and/or private land uses adjacent to significant natural resources that are managed for public benefit. Methods of protection to be considered may include, but shall not be limited to, coordination with appropriate State agencies, Notice of Proximity, the use of density and intensity limitations on land use and development, and the use of buffers.
Petitioners contend that the proposed LPSA is inconsistent with this policy due to its proximity to the ESCA.
The ESCA is adjacent to the western boundary of the LPSA along South Tanner Road.
Proposed policy 6.8.3 notes that “[l]ands located along the perimeter within the [LPSA] shall be compatible with adjacent land outside of the [LPSA], with the exception of the
[ESCA].” (emphasis added). Thus, the text amendment acknowledges that the development proposed within the LPSA may not be compatible with the adjacent ESCA.
To protect the adjacent ESCA from the impacts of development proposed within the LPSA, the text amendment requires “transitional treatment of the edges” of the LPSA, including a minimum 100-foot vegetative buffer along South Tanner Road “to preserve existing rural view sheds or create a visual buffer from the proposed development within Lake Pickett Communities.” The buffers must consist of “Florida native plant species, as required by Chapter 15 Article XI” of the County Code. The proposed policy also requires these buffer areas to be utilized only as natural/wetland zones.
The approved RP for Lake Pickett South depicts all property adjacent to South Tanner Road as either T1 wetlands or T1 natural, with the exception of the property at the corner of SR 50 and Tanner Road, which is designated T4 with no buffer along South Tanner Road.
Just inside the buffer, the RP designates property within Lake Pickett South for either T2 (2du/acre), stormwater retention, or agricultural (working farm) uses. The RP places higher density and intensity uses further from the “edge,” thus further from the border with the ESCA.
The Plan Amendments were reviewed by both the St. Johns River WMD and the South Florida WMD (SFWMD).
The St. Johns River WMD reported on September 9, 2015, that its review “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted.” The applicable staff had no comments on the proposed amendments, but noted that the property subject to the amendments is located within the WMD’s Econ River Hydrologic Basin and any environmental resource permit will have to meet additional surface water management basin criteria.
The SFWMD reported, “There appear to be no regionally significant water resource issues; therefore, the District has no comments on the proposed amendment package.”
The Department of Environmental Protection “conducted a detailed review [of the Plan Amendments] that focused on potential adverse impacts to important state resources and facilities, specifically . . . wetlands and other surface waters
of the state; federal and state-owned lands and interest in lands . . . .” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.”
The County coordinated with appropriate state agencies for siting the LPSA adjacent to the ESCA.
The RP reflects the use of buffers and density and intensity limitations as methods to protect the adjoining ESCA from development within Lake Pickett South.
The text amendment reflects the use of “edge” buffers and transitional density and intensity limitations, through the transect zone approach, to achieve compatibility with the adjacent ESCA.
The Plan Amendments are not inconsistent with FLUE Policy 6.4.7.
Similarly, Petitioners allege the Plan Amendments are inconsistent with FLUE Objective 8.2, which reads as follows:
COMPATIBILITY. Compatibility will continue to be the fundamental consideration in all land use and zoning decisions. For purposes of this objective, the following policies shall guide regulatory decisions that involve differing land uses.
Petitioners did not identify any implementing policy with which the Plan Amendments are alleged to be inconsistent.
Compatibility is not defined by the Comprehensive Plan.
Compatibility is defined by the Community Planning Act as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.”
§ 163.3164(9), Fla. Stat. The parties did not dispute that this definition was applicable to analyzing consistency with Objective 8.2.
Petitioners allege the development authorized by the Plan Amendments is incompatible with (1) adjacent rural settlements, and (2) its location in an important wildlife corridor.
Petitioners first allege the LPSA is incompatible with the adjacent Corner Lake Estates and Lake Pickett rural settlements, due to the density, intensity, and mix of uses allowed by the Plan Amendments.
The Lake Pickett rural settlement located adjacent to the LPSA on the northeast is vested at 1du/acre. The Corner Lakes rural settlement has an existing density of 4du/acre. As discussed previously, these densities are grandfathered from the RSA density limitation of 1du/10acres.
The Comprehensive Plan clearly establishes densities of no greater than 2du/acre for future development in rural settlements. Regardless of whether the existing density of these two rural settlements is 4du/acre or greater, the Comprehensive Plan limits future development within the settlements to lower densities more consistent with the RSA.
Because no RP has been approved for the northern section of the LPSA, it is impossible to discern what specific density of development may be allowed adjacent to the Lake Pickett rural settlement.
Proposed Policy 6.8.3 will apply to development of the north LPSA, which provides that “lands located along the perimeter within the [LPSA] shall be compatible with adjacent lands outside of the [LPSA] . . . .” Aside from the statement that “substantial buffers consisting of Florida native plant species, as required by Chapter 15 Article XI of the Orange County Code, shall be used to replace or enhance perimeter transition treatment,” the Plan Amendments contain no specific requirement for buffer size between the LPSA and the Lake Pickett rural settlement.8/
Mr. Hall, accepted as an expert in land use planning and growth management, testified at length regarding the “edge” treatment, buffering, and lot sizes, designed to make the layout of Lake Pickett South compatible with the adjoining Corner Lakes
rural settlement. The edges of Lake Pickett South abutting Corner Lake are all designated as wetlands, buffer areas, or stormwater facilities, with the exception of a strip of T3 residential at 4du/acre with minimum 50-foot lots. However, this strip adjoins existing undeveloped natural buffer area within Corner Lake, not existing residential lots.
Overall, Lake Pickett South allows urban development to locate next to the existing Corner Lake rural settlement. The overall density, intensity, and mix of uses allowed in Lake Pickett South is inconsistent with the single-use residential rural community setting of Corner Lake. However, given the transect-based planning approach and the buffering and “edge” treatments required by proposed Policy 6.8.3, it is at least arguable that the development is compatible with the adjacent rural settlements.
Petitioners next allege the LPSA is inconsistent with FLUE Objective 8.2 because it is located within an important wildlife corridor and introduces physical obstacles which impede movement of wildlife through the corridor.
None of the Petitioners addressed this particular objective in their Proposed Recommended Order.9/
Petitioners did not prove that the LPSA is inconsistent with FLUE Objective 8.2, which specifies
compatibility as the fundamental consideration in all land use decisions.
Petitioners next challenge the Plan Amendments as inconsistent with Conservation Objectives C1.7 and C1.9.
Objective C1.7 reads as follows:
OBJC1.7 Orange County shall manage and protect plant and wildlife species designated as threatened, endangered or species of special concern through programmatic and planning approaches for ecosystem analysis and through adoption of land development regulations.
The final environmental surveys conducted by Intervenor Banksville’s consultant, Bio-Tech Consulting, Inc., revealed the presence of six wildlife10/ species designated by the Florida Fish and Wildlife Conservation Commission (FWC) as either threatened, endangered, or of special concern.
The County’s conservation regulations are limited to identification and protection of wetlands and the watershed of the Econ River Basin.
The County has no regulatory authority over wildlife conservation or preservation.
Petitioners introduced credible expert witness testimony regarding the presence of wildlife in the LPSA, and opinions regarding the adverse effects which development in the area, as proposed, is likely to cause. Petitioners clearly
would have the County regulations go further to address, or perhaps prohibit, development impacting the wildlife habitats.
The question at hand, however, is not whether the County’s adopted “programmatic and planning approaches for ecosystem analysis,” and the County’s land development regulations, adequately address the stated objective, to “manage and protect plant and wildlife species designated as threatened, endangered.” The inquiry in this case is limited to whether the Plan Amendments, as proposed, are inconsistent with the stated objective.
Petitioners did not prove that the Plan Amendments are inconsistent with Objective C1.7.
Objective C1.9 reads as follows:
OBJ C1.9 Orange County shall require the protection of natural resources by minimizing adverse impacts from adjacent developments. This objective shall be made measurable by implementing the following policies.
Petitioners are clearly concerned with the impact of the Plan Amendments on the plant and wildlife habitats in the adjoining ESCA. Petitioners’ expert ecologist testified extensively regarding the impact of new communities on the ESCA
--increased passive recreational use, such as horseback riding, hiking, and picnicking, as well as the impact of domesticated pets on wildlife in the ESCA.
Petitioners’ experts were insistent that the text amendment does nothing to minimize these adverse effects because proposed FLUE Policy 6.8.3 requires no buffer for the ESCA.11/
On the contrary, Policy 6.8.3 requires a minimum 100-foot native vegetated buffer along South Tanner Road, the border between the LPSA and the ESCA.
Petitioners did not identify any measurable policy implementing Objective C1.9 with which the Plan Amendments are alleged to be inconsistent.
Policy C1.9.2 mirrors the requirements of FLUE Policy 6.4.7, requiring “enhanced protective mechanisms, such as, but not limited to . . . buffers, vegetative buffers, setbacks, density restrictions, easements . . . that will permit continued habitat management practices in areas adjacent to major managed natural resources.” As discussed previously, the Plan Amendments incorporate buffers and density and intensity limitations, through the use of transect-based planning, to address the impact of the proposed development on the adjacent ESCA.
Petitioners did not establish that the Plan Amendments are inconsistent with Objective C1.9.
Petitioners allege the Plan Amendments are inconsistent with Conservation Goal 2, Objective 2.3, and Policy 2.3.1, which read as follows:
GOAL C2 Orange County’s goal is to protect, enhance and maintain the unique and irreplaceable values, functions, diversity and benefit of the natural resources within the Econlockhatchee River Basin, Wekiva Protection Area and the Lake Apopka Drainage Basin.
* * *
OBJ C2.3 Orange County shall protect and preserve the surface water quality and quantity, wildlife populations and habitat, aesthetics, open space, historical and archaeological resources, floodplains, wetland areas, native upland areas and recreation lands of the Econlockhatchee River Basin by implementing the following policies.
* * *
C.2.3.1 The Land Development Code shall provide for the protection of the Econ River Basin through mechanisms such as upland buffers, specific restrictions within a 2,200 foot total width protection zone, requiring habitat and historical/archaeological resource assessments and protection, allowing for mitigation, open space or density credits, requiring landscaping to include use of native plant species, utilization of wetland areas as part of drainage facility systems, requiring State or Federal listed species protection, clustering of development, restricting floodplain encroachment, and limiting forested habitat fragmentation.
Petitioners introduced no evidence to support a finding that the County’s land development code fails to provide the listed protections for the Econ River Basin.
Respondent and Intervenors introduced in evidence Article XI of the County code, titled “Econlockhatchee River Basin Protection.” The article includes basin-wide regulations which include management plans for protection of endangered, protected, and species of special concern, use of native plant species in landscaping, regulations to limit adverse impact of development on hydrologic functions of conservation areas, upland buffers of 50 feet for conservation areas, and limits on discharge rates for stormwater management systems.
John Miklos, Intervenor’s expert in environmental and ecological assessments and environmental and ecological planning, testified, credibly, that the County’s land development code is even more stringent than the St. Johns River WMD requirements because it imposes development restrictions within a 2,200 foot corridor on either side of the Econ River, in addition to the 1,100 foot “critical area regulations” imposed by the St. Johns River WMD.
The article also contains specific regulations for a “critical area” defined as the main river channel extending 1,100 feet landward of the Econ River and its major tributaries.
Nothing in the Plan Amendments exempts the development authorized thereby from the requirements of Article XI.
Petitioners did not prove the Plan Amendments are inconsistent with Conservation Goal C2, Objective 2.3, and Policy C2.3.1.
Petitioners next allege the Plan Amendments are inconsistent with Transportation Element Goal T1 and Policy T1.1.1.3, which read, as follows:
GOAL T1 A safe, accessible, convenient, efficient and financially feasible multimodal transportation system which minimizes environmental impacts.
* * *
T1.1.1.3 Whenever reasonably possible, future roadway projects shall be designed to promote livability and land use- transportation integration, in part by avoiding the severing or fragmenting of existing neighborhoods. The County will coordinate with FDOT, the Central Florida Expressway Authority, and other appropriate entities to help ensure that limited access and other roadway projects which are constructed by them avoid or minimize negative impacts to existing neighborhoods, wildlife corridors, and sensitive natural areas and to coordinate these projects with conservation and land use decisions.
Petitioners introduced no credible evidence that the transportation improvements necessary to serve the proposed development would sever or fragment existing neighborhoods or that the County would not coordinate the improvements to SR 50 with appropriate state agencies.
Chuluota Road will require widening in conjunction with the proposed development. That road serves both Corner Lake and Lake Pickett rural settlements, but there is no evidence that the road project would sever or fragment those neighborhoods.
Petitioners also alleged the Plan Amendments were inconsistent with Neighborhood Element Objective N1.1, which reads, “Orange County shall ensure that future land use changes are compatible with or do not adversely impact existing or proposed neighborhoods.”
For the reasons cited in the discussion related to consistency with FLUE Objective 8.2, the Plan Amendments are consistent with adjoining neighborhoods based on the edge treatment requirements and transect-based approach to density.
Finally, the Petitioners challenge the Plan Amendments as internally inconsistent with the Potable Water Element Goal 1, Objective 1.1 and Policies 1.4.2 and 1.4.3, which read, as follows:
GOAL PW1 It is Orange County’s goal to provide an efficient and adequate level of water service and facilities in a cost effective manner to accommodate existing and future development.
OBJ PW1.1 Orange County shall continue to provide for the correction of its existing water system deficiencies. This objective
shall be made measurable by implementing the following policies.
* * *
PW1.4.2 Potable water service shall not be extended to areas outside the [USA] except in the following circumstances:
The facilities to be extended will serve a Growth Center or other exception areas as provided in the Comprehensive Plan (CP);
The Board of County Commissioners has made an affirmative finding that a public health hazard exists for existing development. Such facilities shall not serve as the basis for additional new development;
The facilities are to be extended to provide adequate fire flows to existing developments which are located within one- half (1/2) mile of an existing waster transmission main;
For approved sector plans as provided for in the CP; and
The circumstances described under Policy PW1.5.2 and Policy PW1.5.3.12/
The Petitioners presented no evidence regarding deficiencies in the county’s water system or how the instant amendment would relate to the county addressing said deficiencies.
No evidence was introduced on which to base a finding that providing water service to the LPSA would be inefficient, inadequate, or not cost-effective.
The Plan Amendments do not require extension of water utilities to serve the proposed development. The County utilities department evaluated the Plan Amendments and reported that water mains on SR 50, Lake Pickett Road, and North Tanner Road are available to serve the development, as well as wastewater mains in the vicinity. The developer will be paying to connect the development to the existing water mains, as well as install the water and wastewater infrastructure within the development boundaries.
The Plan Amendments are not inconsistent with PW Goal 1, Objective 1.1, and Policies 1.4.2 and 1.4.3.
Urban Sprawl
Petitioner Brooke additionally challenges the Plan Amendments as contrary to section 163.3177(6)(a)9., which provides that “any amendment to the future land use element shall discourage the proliferation of urban sprawl.”
The Act defines urban sprawl as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.”
The statute sets forth 13 primary indicators that a plan amendment does not discourage the proliferation of urban
sprawl, and eight factors which, if met, determine a plan amendment discourages urban sprawl.
Petitioner’s expert testified that the Plan Amendments are characterized by the at least nine of the indicators of sprawl. Intervenors’ expert disagreed.
The first primary indicator implicated by Petitioner Brooke is that the development “[p]romotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development.” § 163.3177(6)(a)9.a.(II)., Fla. Stat.
The Plan Amendments do direct urban development to locate within a rural area.
The evidence did not establish how far the LPSA is located from the boundary of the USA.13/ Based upon Map 11 of the FLUM series, Corner Lake rural settlement is located
1.5 miles east of the USA boundary. The LPSA is located west of Corner Lake, thus closer than 1.5 miles from the USA boundary.
Intervenors demonstrated the location of major employment centers within two miles of the LPSA, including the University of Central Florida and the Central Florida Research Park, both of which are located within the USA.
The LPSA is not located at a substantial distance from existing urban areas.
Assuming, arguendo, the location of the LPSA was considered to be at “a substantial distance” from existing urban areas, Petitioner Brooke introduced no evidence of undeveloped lands within or closer to the USA which are available and suitable for the proposed development.
Petitioner Brooke did not prove that the Plan Amendments meet primary indicator (II).
Petitioner next contends that the Plan Amendments fail to “adequately protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater recharge areas, lakes, rivers . . . .” § 163.3177(6)(a)9.a.(IV), Fla. Stat. As previously addressed, the Plan Amendments do not exempt the development from the County’s existing land development code requirements for identification and protection of conservation areas and special protection for the Econ River Basin, which are the County’s primary protection and conservation mechanisms. It is clear that Petitioners wish the County regulations went further, but that issue is beyond the scope of this proceeding.
Petitioner did not prove that the Plan Amendments trigger primary indicator (IV).
Petitioner next contends that the Plan Amendments “[f]ail[] to adequately protect adjacent agricultural areas and activities, including active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmland and soils.” § 163.3177(6)(a)9.a.(V).
Adjacent uses to the south and east of the LPSA are rural residential settlements. The ESCA is adjacent to the west. No evidence was introduced establishing the uses to the north in Seminole County. No evidence was introduced to establish the use of adjacent rural settlement for any agricultural or silvicultural activities, either active or passive. The only evidence demonstrated that Corner Lake consists of residences and wetland conservation areas.
Petitioner did not prove that the Plan Amendments trigger primary sprawl indicator (V).
Primary indicator (XI) is that the development “[f]ails to maximize use of existing public facilities and services.”
Potable water and wastewater facilities exist, and uncommitted capacity is available to serve the development as proposed. The County utilities department reviewed the Plan Amendments and reported sufficient plant capacity to serve the development at adequate levels of service.
Parks and Recreation also reviewed the Plan Amendments and reported sufficient acreage capacity to serve the proposed development. The County fire rescue department reported that those portions of the property which are within
2.5 miles of Station 82 are within an “optimal emergency services delivery” area. Other portions are not within an optimal delivery area, but are within a seven-minute response time.
Anecdotal testimony from the Corner Lakes HOA President regarding a delayed response time to a residential security alarm is not competent evidence on which to base a finding that the existing emergency response service is inadequate.
The development will require significant investments in public roadway facilities in order to meet level of service requirements. Several segments of the major county roadways to be impacted by the development authorized by the Plan Amendments, Lake Pickett Road and Chuluota Road, are already overcapacity. Segments of SR 50 currently operate at an acceptable level of service, based on a six-laning project currently underway, but are projected to operate at an unacceptable level of service by the 2035 planning horizon.
Transportation analysis shows significant and adverse impacts from the proposed development on all three roadways (at
varying rates depending on the time of the day modeled). In order to approve the Plan Amendments, the developer has entered into a Transportation Network Agreement, and corresponding Term Sheet, by which it has committed to pay an estimated $16,000,000 to the State for widening impacted segments of SR 50, and an estimated $14,844,000 to the County for widening Chuluota Road from SR 50 to Lake Pickett Road.
The Plan Amendments do not fail to maximize use of existing transportation infrastructure. The existing infrastructure is, apparently, over-maximized.
The Plan Amendments do not trigger primary sprawl indicator (XI).
Next, Petitioner Brooke argues the Plan Amendments “[f]ail[] to maximize use of future public facilities and services.” § 163.3177(6)(a)9.a.(VII), Fla. Stat. Because the Comprehensive Plan provides a strategy of designating the USA as the area for which the County is responsible for providing infrastructure and services to support urban development, Petitioner Brooke argues that location of urban development outside the USA fails to maximize use of future public facilities and services.
While Petitioner Brooke’s arguments sounds theoretically correct, it is not supported by the evidence. The evidence shows that the potable water and wastewater service
lines previously constructed under the Econ River are sized for capacity to serve the demands generated by the Plan Amendments, and that the plant capacity exists as well. Petitioner introduced no evidence that service capacity to meet the future demand generated by the Plan Amendments would reduce, or otherwise interfere with, the County’s ability to provide those services to development inside the USA. Moreover, the Plan Amendments dictate that the developer, rather than the County, will incur the costs of constructing connections to the existing potable water and wastewater lines.
As to the transportation facilities, the impacted segments of Lake Pickett and Chuluota Road are currently deficient and included in the County’s long-range transportation plan for widening as “partnerhip projects,” meaning the County requires a partner to fund these future projects. Through the transportation funding agreements, the Plan Amendments will provide the funding partner the County needs to eliminate the current backlog on these roadways, as well as mitigate the projected impacts of the future development.
The Plan Amendments do not fail to maximize use of future public facilities and services, which is primary urban sprawl indicator (VII).
Petitioner Brooke next cites primary indicator (VIII), that the Plan Amendments “[a]llow for land use patterns
or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.”
§ 163.3177(6)(a)9.a.(VIII), Fla. Stat.
Petitioner introduced no evidence of increased costs associated with providing services to the development authorized by the Plan Amendments, with the exception of transportation. As previously discussed, the Plan Amendment actually reduces the County’s cost to provide transportation services to existing and committed developments through the planning horizon, and funds much of the cost to improve the impacted roadways to serve the new development.
Petitioner did not prove the Plan Amendments trigger primary urban sprawl indicator (VIII).
Next, Petitioner implicates section 163.3177(6)(a)9.a.(IX), that the Plan Amendments fail to provide a clear separation between rural and urban uses. On this primary indicator, Petitioner is correct. The Plan Amendment directs urban uses to a location surrounded by development recognized in the Comprehensive Plan as rural agricultural, rural residential, and conservation, or specified exceptions thereto.
The Plan Amendments do trigger primary urban sprawl indicator (IX).
Petitioner Brooke next argues the Plan Amendments constitute urban sprawl because they “discourage[] or inhibit[] infill development or redevelopment of existing neighborhoods and communities.” § 163.3177(6)(a)9.a.(X). Fla. Stat. As previously found, the Plan Amendments direct urban development to the RSA, which is contrary to an urban infill strategy. The Plan Amendments discourage infill by authorizing urban development outside of the designated urban area.
The Plan Amendments do trigger primary urban sprawl indicator (X).
Lastly, Petitioner Brooke alleges the Plan Amendments “result[] in poor accessibility among linked or related land uses.” § 163.3177(6)(a)9.a.(XII), Fla. Stat. Petitioner’s expert, Ms. Diettrich, opined that the proposed development is not sited adjacent to or continuing from any related use, thus fails to connect related uses. Based on that evidence alone, the undersigned was unable to find that the Plan Amendment triggers primary indicator (XII).
Altogether, Petitioner proved the Plan Amendments trigger two primary indicators of urban sprawl.
Once primary sprawl indicators are identified, the urban sprawl analysis shifts to whether the Plan Amendments meet
four of eight criteria which determine that an amendment discourages urban sprawl.
Respondent and Intervenors introduced testimony from their expert planner, Mr. Hall, that the Plan Amendments satisfy six of the criterion: (1) promote the efficient and cost- effective provision or extension of public infrastructure or services; (2) promote walkable and connected communities and provide for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system; (3) promote the conservation of water and energy; (4) preserve agricultural areas and activities; (5) preserve open space and natural lands and provide for public open space and recreation needs; and
(6) create a balance of land uses based upon demands of the residential population for the nonresidential needs of the area.
Mr. Hall testified that the LPSA promotes efficient and cost-effective provision or extension of public infrastructure because the developer is paying, rather than the County. That arrangement is more cost-effective than taxpayer investment.
Proposed policies 6.8.6, 6.8.12, and 6.8.13 require the neighborhoods within the LPSA to be designed as walkable and with interconnected greenspaces, trails, and paths. However, the LPSA does not promote a range of housing choices. Proposed
policy 6.8.2 limits T3 to single-family detached housing, with some single-family attached housing limited to the perimeter and close to T4. Zone T4 allows single-family attached and “vertically-integrated uses,” which is undefined. Multifamily uses are prohibited.
The proposed development does not promote a multimodal transportation system. The Department of Transportation reports there are “no transit service links adjacent to the project site,” and although “significant transit improvements are planned for the UCF/East Orange County area over the next six to 10 years,” funding for the projects had not been identified.
The Plan Amendments do promote conservation of water and energy through the requirement in proposed FLUE Policy 6.8.4 that each community adhere to a “Green Infrastructure Plan” including a Master Stormwater Plan utilizing Low Impact Development (LID) practices, and a Master Conservation, Open Space and Community Space Plan identifying connections of the internal greenspaces to countywide trail systems.
The Plan Amendments do require a substantial amount of open space and natural lands, and provide for public open space and recreation needs. Pursuant to proposed Policy 6.8.6, each community within the LPSA must provide 35 percent open space, no more than five percent of which may be community
spaces.14/ Further, each neighborhood will be organized around a community focal point, such as a community park, garden, center, etc.
Finally, the LPSA is designed with a mix of land uses to meet many of the demands of the residents in the area for nonresidential needs. Zone T4 areas will include commercial, office, service and civic uses to serve the communities, “as well as the surrounding area.”
The LP Guiding Principles and Policies meet four of the criterion which determine that a plan amendment discourages urban sprawl.
Petitioners did not prove that the Plan Amendments fail to discourage the proliferation of urban sprawl.
Data and Analysis
The next basis on which Petitioners challenge the Plan Amendments is supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.”
The statute continues, “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 amendment.” Id.
The Individual Petitioners, with the exception of Petitioner Brooke, maintain that the Plan Amendments do not react appropriately to data and analysis regarding the impact of the Plan Amendments on natural resources and environmentally sensitive areas within the LPSA and the adjacent ESCA.15/ For purposes of this section, these Petitioners will be referred to as the “Farrell Petitioners.”
Petitioner Brooke additionally maintains the Plan Amendments do not react appropriately to the community goals and vision codified by the USA/RSA concept.
1. Natural Resources
On the issue of natural resources and environmentally sensitive areas, the Farrell Petitioners presented the testimony of Ariel Horner, who was accepted as an expert in Florida ecology and ecosystem conservation. Ms. Horner performed research in the ESCA during her undergraduate and graduate studies, and currently teaches courses in ecology and conservation utilizing the ESCA as a teaching tool.
The Farrell Petitioners introduced photographs taken by Ms. Horner utilizing game cameras installed in the ESCA in March and April 2015, and February and March 2016. The photographs depict a number of “listed species,” including the
Florida black bear, Sherman’s fox squirrel, gopher frogs, and ovenbirds. The pictures document the presence of endangered, threatened, or species of special concern, within the ESCA.
Ms. Horner testified extensively regarding the habitat requirements for these species and expressed her expert opinion that these same species are very likely present on the LPSA property as well.
Ms. Horner’s opinion regarding the habitat needs of the various listed species was informed, in part, by management plans prepared by the FWC. Petitioners did not introduce any FWC management plans into evidence and Ms. Horner did not use any excerpts or maps from said plans as demonstratives.
The Farrell Petitioners also offered the testimony of Dr. John Fauth, accepted as an expert in conservation biology, vertebrate and invertebrate zoology, and statistical analysis. Dr. Fauth testified that the LPSA is located within a bio diversity hotspot, the North American Coastal Plain, which data that does not support development of the property for the density and intensity authorized by the Plan Amendments.
The North American Coastal Plain extends from southeast Texas east to Florida and north along the east coast as far as coastal Connecticut and Massachusetts. Within the southeast, the plain includes the entirety of Louisiana and Mississippi, large portions of Alabama, Georgia, and North and
South Carolina, Arkansas, and western Tennessee. The presence of the LPSA within this vast region was not persuasive evidence to support any specific development restriction on the particular parcel.
Both Dr. Fauth’s and Ms. Horner’s expert opinions regarding the high ecological value of the LPSA, is due to its location within a regional wildlife corridor. Dr. Fauth testified extensively regarding the importance of maintaining corridors for listed species, such as the Florida panther and black bear, to travel from southern to northern Florida and further on to other areas within the North American Coastal Plain. The ability of species to migrate without barriers from human development is important to mating, feeding, reproduction, and many other essentials for long-term viability of various listed species.
The Farrell Petitioners introduced, through the testimony of Dr. Fauth, a map from the St. Johns River WMD Management Plan for the ESCA. The map depicts the location of the ESCA within a “larger, multi-corridor system.” The map encompasses east Orange and Seminole, south Volusia, and western Brevard counties. The map depicts “District-Owned Conservation Easements,” “FNAI [Florida Natural Areas Inventory] Public Lands,” “Management Areas,” including managed preserves, state forests, and conservation areas; as well as, properties
designated “Priority 1” through “Priority 5.” The map does not indicate what the priority properties are listed for and no witness testified to the meaning of the priority areas. Based on the totality of the evidence, the undersigned infers the properties are designated by priority for public acquisition.
The LPSA lies within a corridor extending between the Hal Scott Regional Preserve in southeastern Orange County to the Little Big Econ State Forest north in Seminole County. Further east lie the Bronson State Forest and the Seminole Ranch Conservation Area, extensive “Management Areas” in the region.
The scale of the map is large, and no witness testified as to the exact location of the LPSA on that particular map. Based upon the evidence of record, it appears the LPSA lies wholly within an area designated “Priority 1.”
The LPSA is one of thousands, if not tens or hundreds of thousands, of Priority 1 properties within the corridor between the Hal Scott Regional Preserve and the Little Big Econ State Forest. No evidence of record supports a finding that development of the ESCA will prevent wildlife from traversing the larger corridor, or prevent the WMD from acquiring other properties or conservation easements that could, eventually, link the preservations areas.
The St. Johns River WMD staff reviewed the proposed Plan Amendments “focused on flood protection and floodplain
management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted,” and had no comments, other than to note that the property’s location in the Econ River Basin will require additional criteria to be met for issuance of environmental resource permits in the area.
The Department of Environmental Protection reviewed the proposed Plan Amendments for “potential adverse impacts to important state resources and facilities” including “federal and state-owned lands and interest in lands, including state parks, greenways and trails, [and] conservation easements.” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.”
The County has limited jurisdiction with regard to protection of wildlife; the protection of endangered, threatened, and species of special concern is within the authority of the state and federal government.
Although the County was required to transmit the proposed Plan Amendments to the FWC for review, pursuant to section 163.3184(3)(b), no evidence was introduced regarding any comment from the FWC on the proposed Plan Amendments. The state agency with authority for regulating wildlife had no comment
regarding the impact of the Plan Amendments on any state or regional resource, including the proposed corridor.
Despite the County’s limited authority to regulate wildlife, the County environmental staff included the following in its staff report on the Plan Amendments in a section titled “Habitat Protection”:
It appears that portions of the [property] have been identified as part of the Florida DEP, Priority Ecological Greenway Network 2013. This project of the Florida Ecological Greenway Network (FEGN) identifies areas of opportunity for protecting a statewide network or ecological hubs and linkages designed to maintain large landscape-scale ecological functions including focal species habitat and ecosystem services throughout the state.
The FEGN aggregates various data identifying areas of ecological significance from the Florida Natural Areas Inventory, [FWC], existing and proposed conservation lands, and other relevant data. These data were combined to identify large, landscape-scale areas of ecological significance (ecological hubs), and a network of landscape linkages and corridors connecting the hubs into a statewide ecological greenways system (ecological greenways and wildlife corridors). Developing portions of this ecologically significant area without proper ecological design consideration would diminish the functionality of the area as a greenway and move the land use from a state of higher sustainability to a state of lower sustainability in terms of resources needed to sustain the lower state. The applicant shall provide reasonable assurances that the habitat and ecological function of this ecosystem will not be diminished as a result of the proposed development. Road and pedestrian crossings of wetland and
environmentally sensitive corridors shall be minimized over wetlands and floodplains and be designed to allow for unimpeded passage of wildlife. (emphasis added).
The text amendment addressed the issue of habitat and ecological function through the use of the transect planning. Objective 6.8, and Policies 6.8.1 and 6.8.2, dictate a development pattern that transitions from open space and conservation areas on the edges of the LPSA through gradually increasing densities of residential, to a center of highest density, intensity, and mix of uses. This approach minimizes disturbance of the “corridor” by concentrating the most intense uses to the center while maintaining relatively undisturbed edges.
Petitioners maintain that the proposed development, as reflected in the PD-RP, does not provide reasonable assurances that the habitat and ecological function of the property will not be diminished, primarily because road and pedestrian crossings of wetland and environmentally sensitive areas, as planned, fragment habitat which does not allow for unimpeded passage of wildlife.
Petitioners argument on this point is a challenge that the zoning (PD-RP) is inconsistent with the Plan Amendments as reflected in the text amendment. The exclusive method to challenge the consistency of the zoning (or any other land
development order) with the Comprehensive Plan, is section 163.3215, which provides for an action in an appropriate circuit court. Petitioners argument is not cognizable in the instant proceeding.
Furthermore, the Plan Amendments do not exempt the proposed development from the land development code, Article X, which governs the identification, classification, and corresponding protection of wetlands, during the development permitting process. Many of Petitioners’ concerns will be addressed in the permitting process for the proposed development.
Likewise, the process triggering evaluation of the specific property for presence of listed species is the local permitting process. The developer’s preliminary environmental assessment confirmed the presence of several listed species on the subject property, including Sherman’s fox squirrel, Florida Sandhill Crane, Little Blue Heron, White Ibis, gopher tortoise, and bald eagle. The report identifies whether each species is state- or federal-listed, and details the corresponding development restrictions to be imposed during permitting.
The LPSA lies within the Econ River Basin, and is subject to Article XI of the County’s land development code. Section 15-442 specifically requires all development applications to include a survey of listed species utilizing
FWC Wildlife Methodology Guidelines. The code provides, “[a] management plan shall be required of the development for the protection of an endangered, threatened or species of special concern and shall become part of the conditions for approval of the project.”
The data gathered from such surveys is generally good for about a 90-day period because of the relative transient nature of certain species. Listed-species surveys are performed during the permitting phase in order to base permitting decisions on “fresh” data.
The Farrell Petitioners did not prove that the Plan Amendments do not react appropriately to the data concerning the location of the property within a larger wildlife ecosystem to the extent necessary during the planning process.
The Farrell Petitioners next argue that the Plan Amendments do not react appropriately to the data regarding natural resources within the ESCA because the development proposed by the Plan Amendments will negatively impact the ESCA.
Testimony on this issue pertained to increased use of the ESCA by adjoining residents in the proposed development, particularly with respect to planned additional horse trails, hiking and other passive recreation, as well as the introduction of pets, especially cats, which hunt and kill many wildlife species, especially birds.
The testimony on this issue was part hearsay, part speculation and unpersuasive. Neither the state nor the local agency charged with managing the ESCA mentioned a concern with increased public usage when reviewing the Plan Amendments for impact on these resources. The Plan Amendments do not prohibit the managing entities from limiting, or otherwise regulating, the use of the ESCA to maintain its ecological integrity or from conducting public information and awareness campaigns.
The Farrell Petitioners did not prove that the Plan Amendments fail to react appropriately to data regarding the natural resources present on the adjacent ECSA.
Additionally, Petitioner Brooke argues the Plan Amendments do not react appropriately to data and analysis in the form of the community goals and vision established by the Comprehensive Plan USA/RSA concept. Brooke states that FLUE Goal 1 and its implementing objectives and policies establish the community’s “desired future development pattern” directing all urban densities and intensities to the USA. Thus, Brooke argues that the Plan Amendments, which direct urban densities and intensities of use to the RSA, do not react appropriately to the community goal and vision established by the Comprehensive Plan.
Section 163.3177(1)(f) lists “community goals and vision” as a type of data, along with surveys, studies, and
other data available at the time the plan amendment was adopted, on which the plan amendment must be based. The statute anticipates “community goals and vision” as something separate from, or other than, the comprehensive plan itself. Many communities have a free-standing vision statement which may, in part, inform future planning decisions. See Seminole Tribe of Fla. v. Hendry Co., Case No. 14-1441GM (DOAH Feb. 12, 2015). As
such, the separate statement is a community vision or goal which may support a subsequent plan amendment.
In this case, Petitioner Brooke has just repackaged an internal inconsistency argument as a data and analysis argument. Under the rubric of the Community Planning Act, the comprehensive plan must be based upon data and analysis that form the basis for crafting the goals, objectives, and policies of the plan. In order for that construct to make sense as the plan is amended going forward, plan amendments must be supported by data and analysis documented outside of the comprehensive plan itself. The comprehensive plan cannot constitute the supporting data and analysis for an amendment to itself.16/
While the undersigned applauds Petitioner Brooke’s creativity, the argument is not well-taken. The internal inconsistency argument was, however, both well-plead and well- proven.
2. Infrastructure and Services
In both their Petition and PRO, the Farrell Petitioners raise the issue of whether the Plan Amendments react appropriately to data and analysis regarding the provision of infrastructure and services. However, their PRO fails to address this issue, focusing instead solely on the natural resources issue. It is unclear whether the Farrell Petitioners abandoned this claim, so it is addressed here in an abundance of caution.
The Farrell Petitioners did not prove the Plan Amendments fail to react appropriately to data and analysis regarding the availability of infrastructure and services. The Plan Amendments require developer-funded connection to, and construction of onsite, wastewater and potable water services. The Plan Amendment is also contingent upon written infrastructure agreements to provide for public schools, emergency services, and parks and recreation services. Transportation impacts and funding of needed improvements are addressed through the transportation network agreements required by proposed FLUE Policies 6.9.3 and 6.9.4. No persuasive evidence supported a finding that these terms are not an appropriate reaction to data and analysis regarding the availability of infrastructure and services.
Meaningful and Predictable Standards
Finally, Petitioners challenge the Plan Amendments as contrary to section 163.3177(1), which requires comprehensive plans to establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.”
The Farrell Petitioners’ allegation in the pre- hearing stipulation is generalized: “[T]he Plan Amendments . .
. eliminate existing meaningful and predictable guidelines for development.” In their PRO, the Farrell Petitioners allege the Plan Amendments “eliminate[] . . . existing meaningful maximum allowable density limitations and replace[] density with average densities that are much higher urban densities” exceeding the RSA cap of 1du/10acres but outside the USA, thereby failing to provide meaning and predictable standards. The Farrell Petitioners did not elaborate this argument.
Contrary to Petitioners’ assertion, the use of non- specific densities with mixed-use transect-based urban development in the County is neither new nor novel. The most prominent example being Innovation Way, which establishes a range of densities within each transect zone, allowing the final density to be established by the IW-PD-RP. See FLUE Policy
5.1.7. In fact, the process for approving a plan amendment to IW is identical to the LPSA text amendment: The proposed
location of transect zones are depicted on a CRP during the IW map amendment process. No development within the IW boundary may be approved without an approved IW-PD-RP, which determines the adopted boundaries and location of the transect zones. See FLUE Objective 5.2 and implementing policies.
What is new and novel about the LPSA approach is the County’s position that the development pattern and densities are rural, rather than urban.
The Farrell Petitioners did not introduce evidence regarding whether the LPSA amendment process itself provides meaningful and predictable standards for the use and development of land.17/ The allegation that the use of average densities renders the Plan Amendment devoid of meaningful and predictable standards was not proven.
Petitioner Brooke maintains that the Plan Amendments do not provide meaningful and predictable standards because they are internally inconsistent with the goals, objectives, and policies directing urban densities and intensities of use outside the USA.
Petitioner Brooke’s arguments are, again, creative, but yet another attempt to get the proverbial second, or in this case, third bite at the apple. Repackaging an internal inconsistency issue as a “meaningful and predictable standards”
issue does not ipso facto make it an meaningful and predictable
standards issue.
The Petitioners did not prove that the Plan Amendments fail to provide meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida Statutes.
To have standing to challenge or support a plan amendment, a person must be an “affected person,” as defined in section 163.3184(1)(a).
Both the Individual Petitioners and Petitioner Corner Lakes, are affected persons within the meaning of the statute.
Intervenors Banksville, CHCG, and the Rybolt Intervenors, are affected persons with standing to intervene in this proceeding pursuant to 163.3184(1)(a).
“In compliance” means “consistent with the requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the appropriate strategic regional policy plan, and with the principles for guiding development in
designated areas of critical state concern and with part III of chapter 369, where applicable.” § 163.3184(1)(b), Fla. Stat.
The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.
The “fairly debatable” standard, which provides deference to the local government’s disputed decision, applies to any challenge filed by an affected person. Therefore, Petitioners bear the burden of proving beyond fair debate that the challenged Plan Amendments are not in compliance. This means that “if reasonable persons could differ as to its propriety,” a plan amendment must be upheld. Martin Cnty. v.
Yusem, 690 So. 2d 1288, 1295 (Fla. 1997).
The fairly debatable standard is not insurmountable.
Where a local government has established in its comprehensive plan a prohibition, and a plan amendment authorizes development directly contrary thereto, there is no argument that the plan amendment is internally consistent.
Internal Inconsistency
Based on the foregoing Findings of Fact, Petitioners proved beyond fair debate that the Plan Amendments are internally inconsistent with FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objective 1.2, Policies 1.2.1 and 1.2.2; Goal 2; Goal 6, Objective 6.1, and Policies 6.1.1, 6.1.2, and 6.1.3. The County
has established a clear policy of directing urban development to the USA and allowing only low density future residential development in the RSA. The Plan Amendments direct urban development to the RSA, contrary to the County’s established desired development pattern. While the County has established exceptions to the policy of limiting future development in the RSA, the Plan Amendments do not meet any of the established exceptions.
Petitioners did not prove, beyond fair debate, internal inconsistency between the Plan Amendments and any of the other goals, objectives, and policies cited by Petitioners. Data and Analysis
Section 163.3177(1)(f) requires plan amendments to be “based upon relevant and appropriate data and analysis” by the local government, and includes “surveys, studies, community goals and vision, and other data available at the time of adoption.”
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 amendment.” § 163.3177(1)(f), Fla. Stat.
Based upon the foregoing Findings of Fact, the Petitioners did not prove beyond fair debate that the Plan Amendments do not react appropriately to data regarding the
natural resources present on the site of the LPSA or in the adjoining ESCA, to the extent required during the comprehensive plan amendment process.
Meaningful and Predictable Standards
Section 163.3177(1) requires the Comprehensive Plan to “establish meaningful and predictable standards for the use and development of land[.]” The Farrell Petitioners did not prove beyond fair debate that the use of average densities in transect zones rendered the Plan Amendment devoid of meaningful and predictable standards. Nor did Petitioner Brooke prove that the internal inconsistencies between the Plan Amendments and specified portions of the Comprehensive Plan render the Plan Amendments devoid of meaningful and predictable standards for the use and development of land.
Conclusion
For the reasons stated above, the Petitioner has proven beyond fair debate that the Plan Amendments are not in compliance with the specified provisions of chapter 163, Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Orange County Comprehensive Plan Amendments 2015-2-P-FLUE-1 and 2015-2-A-5-1, adopted by
Ordinance 2016-17 on July 12, 2016, are not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.
DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida.
S
SUZANNE VAN WYK
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 11th day of August, 2017.
ENDNOTES
1/ Except as otherwise provided herein, all references to the Florida Statutes are to the 2016 version.
2/ FLUE Policy 6.2.1 provides that “within 18 months, Orange County shall complete a study to determine whether the existing Rural Settlements should be expanded.” The last amendment to this policy was made in June 2010. The record contains no evidence that the rural settlement boundaries have been expanded since 2010.
3/ The Individual Petitioners included FLUE Policy 1.2.6 on the list of policies with which the Plan Amendments are alleged to be inconsistent. The Comprehensive Plan provides that Policy
1.2.6 was deleted by Ordinance 2013-11 in May 2013, and directs the reader to FLUE Policy 1.3.1A. The Individual Petitioners did challenge the Plan Amendments as internally inconsistent with Policy 1.3.1, which is addressed elsewhere herein.
4/ This policy refers to the use of transect-based planning and “incremental urbanism” to allow communities to evolve over generations.
5/ Additionally, the Comprehensive Plan identifies connectivity of road, trail, and transit systems as an enhancement to development of compact urban form in the County. See GOAL UD5 and Objective UD5.1.
6/ The inconsistencies could be remedied by adding the LPSA to the list of exceptions for urban development in the RSA.
7/ The description of “urban strategies” in FLUE Goal 2 actually supports the conclusion that the development pattern planned for Pickett Lake South is, indeed, urban.
8/ Policy 6.8.3 requires specific minimum buffer widths along Lake Pickett Road and South Tanner Road, as well as along the north County boundary line. None of these applies to the boundary with the Lake Pickett rural settlement.
9/ Petitioners addressed the wildlife corridor issue extensively in relation to whether the Plan Amendments reacts appropriately to data and analysis.
10/ The final environmental survey identified no plant species “listed” by either federal or state agencies on the subject site during the assessment.
11/ Ms. Horner’s testimony to this effect was never clarified at final hearing. The undersigned concluded that Ms. Horner misread the following statement in FLUE Policy 6.8.3: “Lands located along the perimeter within the [LPSA] shall be compatible with adjacent lands outside of the [LPSA], with the exception of the [ECSA].” The Policy acknowledges that the use of the lands will not be compatible, but the Policy clearly goes on to require buffering to mitigate the impacts on the adjacent property.
12/ Policies PW1.5.2 and PW1.5.3 apply to extension of water facilities to serve rural settlements.
13/ The parties did not introduce a single map depicting both the USA boundary and the LPSA boundary along with a scale, or elicit testimony from any witness regarding the distance of the LPSA outside the USA boundary.
14/ Up to 50 percent of the open space may be provided in the form of stormwater management facilities, and, together, LID practices and stormwater management facilities may account for up to 75 percent of the open space requirement.
15/ The Individual Petitioners also argued in this same section of their PRO that the Plan Amendments “fail to provide for orderly growth in this location.” That argument is addressed in the following section of this Recommended Order titled “Meaningful and Predictable Standards.”
16/ Except in those jurisdictions in which the data and analysis are adopted as part of the comprehensive plan itself. See section 163.3177(1)(f)1., Fla. Stat. (“Surveys, studies, and data utilized in the preparation of the comprehensive plan may not be deemed a part of the comprehensive plan unless adopted as a part of it.”). The County is not a jurisdiction which has adopted supporting data and analysis into the comprehensive plan.
17/ Moreover, because the process apparently does not incorporate the CRP into the FLUM in any respect, there is some question whether the process provides a meaningful opportunity for an “aggrieved or adversely affected party” to challenge the PD-RP rezoning as inconsistent with the comprehensive plan, pursuant to section 163.3215. That issue is, of course, beyond the scope of this proceeding.
COPIES FURNISHED:
Ralf Gunars Brookes, Esquire Ralf Brookes Attorney
Suite 107
1217 East Cape Coral Parkway Cape Coral, Florida 33904 (eServed)
Jeffrey J. Newton, Esquire Orange County
3rd Floor
201 South Rosalind Avenue Orlando, Florida 32802-1393
Elaine Marquardt Asad, Esquire Orange County Government
201 Rosalind Avenue, 3rd Floor Post Office Box 1393
Orlando, Florida 32801 (eServed)
S. Brent Spain, Esquire Theriaque and Spain
433 North Magnolia Drive Tallahassee, Florida 32308-5083 (eServed)
Scott A. Glass, Esquire Shutts & Bowen LLP
300 South Orange Avenue, Suite 1000 Orlando, Florida 32801
(eServed)
James F. Johnston, Esquire Shutts & Bowen LLP
300 South Orange Avenue, Suite 1000 Orlando, Florida 32801
(eServed)
David A. Theriaque, Esquire Theriaque and Spain
433 North Magnolia Drive Tallahassee, Florida 32308-5083 (eServed)
Ronald M. Brooke 4632 Warrington Drive
Orlando, Florida 32826 (eServed)
Jane West, Esquire Jane West Law, P.L. Suite 504
24 Cathedral Place
St. Augustine, Florida 32084 (eServed)
Thomas P. Wert, Esquire
Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A.
Suite 700
420 South Orange Avenue Orlando, Florida 32801 (eServed)
Barbara Leighty, Clerk Transportation and Economic
Development Policy Unit Room 1801, The Capitol
Tallahassee, Florida 32399-0001 (eServed)
Jack P. “Jack” Heekin
(General Counsel to Commission) Office of the General Counsel Office of the Governor
Room 209, The Capitol Tallahassee, Florida 32399-0001 (eServed)
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 |
|---|---|---|
| Apr. 02, 2018 | Agency Final Order | |
| Aug. 11, 2017 | Recommended Order | Petitioners proved beyond fair debate that the plan amendments were internally inconsistent with the comprehensive plan by allowing urban development in the rural service area. |
