Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $534.24. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
The Issue The issue to be determined in this case is the amount of reasonable attorney’s fees to be paid to the Department of Economic Opportunity (“DEO”) by Respondents.
Findings Of Fact Ms. Thomas and Mr. Shine were the agency attorneys who worked on the appeal. Ms. Thomas reviewed the record on appeal, reviewed the papers filed in the appellate court, filed a notice of appearance, researched legal issues associated with the agency’s Notice of Limited Joinder in Answer Brief, and discussed the case with other attorneys. Ms. Thomas spent seven hours working on the case. Mr. Shine reviewed the record on appeal, reviewed the papers filed in the appellate court, filed a notice of appearance, researched legal issues associated with the agency’s answer brief, and discussed the case with other attorneys. Mr. Shine spent six hours working on the case. Ms. Thomas and Mr. Shine did not file a brief or participate in oral argument. DEO is demanding payment of $3,900 as the total of its reasonable attorney’s fees, which was computed by multiplying 13 hours by an hourly rate of $300. As discussed in the Conclusions of Law, the criteria listed in Rule 4-1.5 of the Rules Regulating the Florida Bar must be used to determine the reasonable attorney’s fees in this case. Rule 4-1.5(b)(1)A The criterion in Rule 4-1.5(b)(1)A is “the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” The legal work was not complex, but it required specialized skill in land use law. DEO claims the standing issue in the case on appeal was complex. To the contrary, the First District Court of Appeal awarded attorney’s fees to the appellees because the court determined that appellants and their counsel knew or should have known that no material facts provided a basis for Respondent’s standing. Likewise, the agency’s counsel knew or should have known. The evidence presented did not show that the labor of both Ms. Thomas and Mr. Shine was required. Their work was, in large part, redundant. Furthermore, Ms. Thomas had only a vague recollection of much of her work. The work of Mr. Shine, alone, would have been sufficient to accomplish the agency’s purposes and efforts in the appeal. Rule 4-1.5(b)(1)B The criterion in Rule 4-1.5(b)(1)B is “the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.” There was no evidence presented regarding this criterion to be considered in determining reasonable fees. Rule 4-1.5(b)(1)C The criterion in Rule 4-1.5(b)(1)C is “the fee, or rate of fee, customarily charged in the locality for legal services of similar nature.” DEO presented the testimony of Joseph Goldstein, a land use lawyer who practices in the Miami offices of the law firm of Holland and Knight. It was Mr. Goldstein’s opinion that the customary hourly rate in the Tallahassee area at the relevant time was $300.1/ Respondents did not present expert testimony to refute Mr. Goldstein’s opinion. There is no other evidence in the record regarding a reasonable hourly rate. Rule 4-1.5(b)(1)D The criterion in Rule 4-1.5(b)(1)D is “the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained.” The case on appeal had moderate significance and the responsibility involved was moderate. The results obtained were not unusual. The novelty in the appellate case was the award of attorney’s fees, but the agency attorneys had nothing to do with the award. In fact, they opposed the award. Rule 4-1.5(b)(1)E The criterion in Rule 4-1.5(b)(1)E is “the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional time demands or requests of the attorney by the client.” There was no evidence presented regarding this criterion that should be considered in determining reasonable fees. Rule 4-1.5(b)(1)F The criterion in Rule 4-1.5(b)(1)F is “the nature and length of the professional relationship with the client.” There was no evidence presented regarding this criterion to be considered in determining reasonable fees. Rule 4-1.5(b)(1)G The criterion in Rule 4-1.5(b)(1)G is “the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of the effort reflected in the actual providing of such service.” The agency lawyers had specialized skill in land use law, but the case did not require unusual diligence or effort. Rule 4-1.5(b)(1)H The criterion in Rule 4-1.5(b)(1)H is “whether the fee is fixed or contingent, and, if fixed as to amount or rate, whether the client’s ability to pay rested to any significant degree on the outcome of the representation.” The fee was fixed because it was based on fixed salaries, but it did not rest on the outcome of the appeal.
The Issue The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment (LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1 The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Petitioners' Standing FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3 FOF FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members. MCCA MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members. Martin County Comprehensive Growth Management Plan The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]." CGMP, § 4.4.G. The Plan further provides: Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . . * * * b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD]. * * * Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element. a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . . * * * f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . . The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP, § 4.4.L., § 4.4.M.1.a., i., and j. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per 20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that: Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres. . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.) Throughout the Plan, residential development on lots of 2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land: Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.) Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a. The Plan defines the term "public urban facilities and services" as "regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." CGMP, § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities" (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.). LPIA Provisions The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides: Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.) To the existing 6 objectives under that goal, the LPIA adds a seventh which states: Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms. This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land. The LPIA adopts six policies to accomplish the new objective: Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy. Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development. Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development. Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract. Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program." Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas." The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use. Meaning and Predictability of LPIA Standards Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects. No Guide to Location and Pattern of Development Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO, ¶61.) However, it is not clear why that omission would be pertinent. Undefined Increase in Maximum Density Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase. Waiver of Density Limits Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3). Maintenance of Residential Capacity Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable. Transfer of Wetland Density Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres). Alleged Failure to Remove Density from All Non-PUD Land Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD. In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA. Subsequent Plan Amendments Not Required for PUD Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance. . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA. Public Benefit Criteria Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner. Protection of Land Set Aside Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO ¶107. Contrary to Petitioners' contention, it is reasonably clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category. Alleged Threat to IRL and CERP Lands Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section 4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable. Definition of Critical Habitat Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities " Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner. LPIA and Urban Sprawl In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development"). Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils"). Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services). Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services"). Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses"). Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space"). The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl. LPIA Data and Analysis Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA. Taken together, the data and analysis are adequate to support the LPIA. LPIA and TCRPC Regional Policy Plan Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies 2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and 2.1.1.2. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2. Internal Consistency of the LPIA Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA. SUSDA Provisions The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner. The policy of SUSDA Section 4.4.G.2.g. expressly states: The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water. The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including: Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP]. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD]. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD]. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system. Extension of utility service outside the Urban Service Districts shall be prohibited. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11- 12 through 11-15. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA §§ 4.4.G.2.h.(6)-(7) and 4.5.H. Meaning and Predictability of SUSDA Standards Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts. Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts. SUSDA Data and Analysis Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time. Alleged Environmental Impact of the SUSDA Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services. SUSDA and Urban Sprawl Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA § 4.4.G.2.h.(5). Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created by the SUSDA will be no greater than the pressures that have existed in those places all along. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl. Internal Consistency of the SUSDA Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the LPIA and the SUSDA are "in compliance." DONE AND ENTERED this 10th day of April, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 10th day of April, 2009.
Findings Of Fact The Department of Environmental Regulation published notice of this land use hearing on July 2, 1981, in the Sentinel Star newspaper. Notice was also published in the Florida Administrative Weekly. The application posted notice of this hearing at the proposed site, and the Department of Environmental Regulation mailed notice of this hearing to the chief executives of the local and regional authority with responsibility for zoning and land use planning whose jurisdiction includes the site. The Orlando Utilities Commission is an independent authority engaged in the generation and distribution of electric power to persons within the service area. Its application in the is proceeding seeks site certification for the construction of a coal-fired electric generating plant and ancillary facilities, including railroad tracks, transmission lines, service road, and water lines, all located in Orange County, Florida. The site consists of 3,280 acres located in sections 13, 24, and the East one-half of sections 14 and 23, Range 31 East, Township 23 South, and sections 18 and 19, Range 32 East, Township 23 South. The initial development of the site is intended to use approximately 990 acres, with the ultimate development utilizing approximately 1,110 acres. It is the ultimate intent to place additional electric generating units on the site. The site is presently used primarily as a livestock range, with most of the site also leased for hunting. No development exists on the site. That part of the site not actually occupied by the generating facilities may be leased for livestock grazing. A news release of the information required to be provided in the public notice pursuant to Rule 17-17.06(2)(a), Florida Administrative Code, was not sent by the Department of Environmental Regulation to appropriate news wire services, nor such other media selected by the Department. However, newspaper articles about the site certification application published in the Orlando Sentinel Star as early as July 21, 1981, and newspaper articles that followed thereafter indicate that the news media had actual notice of the site certification application and proposed land use hearing. The evidence establishes that no one's rights were prejudiced by the failure of the Department to provide a news release about the pending land use hearing to the wire services. The Orange County Zoning Resolution presently zones the proposed site as A-2, Farmland, Rural District. Such a zoning does not allow electric generating facilities such as that sought to be certified in this proceeding. However, the zoning authority for the proposed site, the Board of County Commissioners of Orange County, Florida, by resolution dated August 11, 1981, has granted a special exception to the Orlando Utilities Commission for a coal burning electric power plant in an A-2 zoning district. That special exception applies specifically to the site proposed for certification her, and is for the purpose of zoning the proposed site so that an electric generating facility may be constructed. The use of the proposed site for the purposes intended is consistent with the elements of the Orange County Growth Management Policy which is the applicable land use plan for the proposed site.
The Issue The issues in this case are whether the Palm Beach County Comprehensive Plan amendments which changed the future land use designations for a 97.55-acre parcel and a 26.23-acre parcel through the adoption, respectively, of Ordinance 2006-28 and Ordinance 2006-29, are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2007).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and amendments, and determining whether a plan or amendment is “in compliance.” Palm Beach County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3187, Florida Statutes. Salvatore J. Balsamo is the owner of the Balsamo property and the applicant for the Balsamo amendment. Lantana Farm Associates, Inc., is the owner of the Lantana Farm property and the applicant for the Lantana Farm amendment. Rosa Durando owns property and has resided since 1959 in unincorporated Palm Beach County, approximately one mile south of Lantana Road and half a mile west of State Road 7. She made comments to the County during the time beginning with the transmittal hearing for the Balsamo and Lantana Farm amendments and ending with the adoption of the amendments. Durando has been active for many years to preserve environmentally sensitive lands within Palm Beach County. She has a strong interest in growth management, water management, and environmental protection issues in the County. 1000 Friends of Florida, Inc., is a Florida not-for- profit corporation created in 1986 for the purpose of advocating the effective implementation of Chapter 163, Part II, Florida Statutes. Its main office is in Tallahassee. It also maintains an office in Palm Beach County, with a single employee, who is a planner. 1000 Friends has about 400 members who reside in, own property, or own or operate a business in Palm Beach County. That number constitutes a substantial number of its members. 1000 Friends submitted comments, recommendations, and objections to the County during the time beginning with the transmittal hearing for the Balsamo and Lantana Farm amendments and ending with the adoption of the amendments. It was not shown that 1000 Friends has ever applied for or been issued a license or permit to operate a business in the County. 1000 Friends has been involved in many Palm Beach County planning issues. It has participated in local hearings, advocated planning principles, distributed planning information to the citizens of the County, and has been a party in planning- related litigation. The Decision Making Process On April 5, 2006, the Board of County Commissioners held a public hearing to consider whether the Balsamo and Lantana Farm amendments should be approved for transmittal to the Department. The County planning staff recommended denial for several reasons, including its determinations that the need for the amendments and justification for the tier changes (tiers are discussed in detail below) was not adequately demonstrated, and that the proposed amendments would contribute to urban sprawl. However, the Board voted to transmit the Balsamo and Lantana Farm amendments to the Department. The Department reviewed the amendments and issued its Objections, Recommendations and Comments (ORC) Report on June 23, 2006. The ORC Report stated the Department’s objections to the amendments due to internal inconsistency, public facilities impacts, lack of data and analysis, and lack of need. On August 21, 2006, the Board of County Commissioners held a public hearing to determine whether the Balsamo and Lantana Farm amendments should be adopted. The County planning staff again recommended denial. The Board voted to adopt the amendments. On October 20, 2006, the Department issued a Statement of Intent to find the Balsamo and Lantana Farm amendments “not in compliance.” The Statement of Intent identified several compliance issues, including internal inconsistency, the failure to conduct a tier study, lack of need, and urban sprawl. The Statement of Intent also alleged inconsistency with provisions of the State Comprehensive Plan and Strategic Regional Policy Plan. In December 2007, the Department executed a compliance agreement with the County and Balsamo. In February 2008, the Department executed a compliance agreement with the County and Lantana Farm. The agreements indicate that the Department’s compliance issues had been resolved by the submission of additional data and analysis supporting the amendments. 1000 Friends and Durando did not join in the agreements. On March 14, 2008, the Department issued an Amended Notice of Intent to find Ordinance 2006-28 and Ordinance 2006-29 “in compliance” and the parties were subsequently realigned as they now appear in the case style. The Managed Growth Tier System In addition to changing the land use designations for the Balsamo and Lantana Farm properties from RR-10 to LR-1, the challenged amendments change the County’s Tier Map to make the properties part of the Urban/Suburban Tier. They were formerly in the Rural Tier. The tier change is necessary because the LR-1 land use designation is not permitted in the Rural Tier. The County’s Managed Growth Tier System was created in 1999 and places all lands in the County into one of five tier classifications: Urban/Suburban, Exurban, Rural, Agricultural Reserve, and Glades, which are intended to define distinct geographical areas within the County that “allow for a diverse range of lifestyle choices, and livable, sustainable communities.” The Urban/Suburban Tier and Rural Tier are described in the Future Land Use Element (FLUE) of the Comprehensive Plan as follows: Urban/Suburban Tier: The Urban/Suburban Tier shall include all land within the Urban Service Area, as depicted on the Service Areas Map in the Map Series. These areas have a development pattern generally characterized as urban or suburban, considering the intensity and/or density of development. The Urban/Suburban Tier shall be afforded urban levels of service. Rural Tier: The Rural Tier shall be located outside the Urban Service Area and east of the Water Conservation Area, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area, and shall include large tracts of lands, as well as lands platted prior to the adoption of the 1989 Comprehensive Plan with a predominant density of 1 dwelling unit per 10 acres, but less than 1 dwelling unit per 5 acres. These areas shall be afforded rural levels of service. The Urban/Suburban and Rural Tiers are more fully described elsewhere in the FLUE as follows: Urban/Suburban Tier. This tier is expected to accommodate the bulk of the population and its need for employment, goods and services, cultural opportunities, and recreation. It supports a variety of lifestyle choices, ranging from urban to residential estate; however, the predominant development form in the unincorporated area is suburban in character. The older communities are primarily in municipalities, within approximately two miles of the Atlantic Ocean. Most of the neighborhoods within the tier are stable and support viable communities. However, due to the period in which many of the coastal communities were built and the County’s efforts to keep pace with rapid growth in its western areas, some of the eastern areas did not receive a full complement of urban services. Rural Tier. The Rural Tier includes agricultural land and rural settlements that range in density from primarily 1 dwelling unit per 5 acres to 1 dwelling unit per 20 acres. These areas support large agricultural operations as well as single- family homes with small family-owned agricultural businesses, including equestrian related uses. Due to the declining availability of land and the increase in population in the Urban and Exurban Tiers, the Rural Tier is beginning to experience pressure for urban densities and nonresidential intensities normally associated with a more urban area. The strategies in the Rural Tier are established to protect and enhance rural settlements that support agricultural uses and equestrian uses. The County’s Tier Map assigns tiers to lands within the municipalities, but the municipal governments are not subject to the tiers and their land use decisions do not have to be consistent with the provisions of the Palm Beach County Comprehensive Plan related to tiers. However, intergovernmental coordination, a part of the comprehensive planning process, requires that adjacent local governments consider such matters as the compatibility of land uses at jurisdictional boundaries. The Tier Re-designation Process In 2005, the County amended the criteria for a tier re- designation to allow private applications for tier re- designations. Requirements were also added for a tier study to be conducted to determine whether the tier re-designation was justified and for a parcel to be contiguous to the tier to which it would be assigned. These requirements were added to discourage piecemeal development, urban sprawl, and land use incompatibility. The Balsamo and Lantana Farm applications for tier re- designation were the first private applications reviewed by the County pursuant to the new criteria. Tier re-designation is governed by Policy 1.1-b: In addition to the criteria for amending a future land use designation, the County shall apply the following standards to allow for the redesignation of a Tier to respond to changing conditions. The County shall not approve a change in tier boundaries unless each of the following conditions are met: The area to be reassigned to another tier must be contiguous to the tier to which it would be assigned; and, A Study must be conducted to determine the appropriate tier designation of the area and its surroundings, in order to avoid piecemeal or parcel-by-parcel redesignations. If a neighborhood plan or study recognized by the Board of County Commissioners includes the area and makes recommendations concerning tier boundaries, such neighborhood plan or study may serve as the Study required by this policy. Additionally, the following factors shall be considered, as part of the required Study, to evaluate the merit of the potential Tier redesignation: The availability of sufficient land to accommodate growth within the long range planning horizon, considering existing development approvals; The need to balance future land uses, considering the impact of continued development on an area and/or its demographics, as identified through a Specific Area Plan within a Sector Plan or through the Community Planning Process; For redesignations to the Urban/Suburban Tier, the necessity of designating additional land for urban/suburban development in the particular location, considering any infill or redevelopment opportunities available within the Urban Redevelopment Area (URA) or Revitalization and Redevelopment Overlay (RR-O); For any redesignation subtracting land from the Rural and/or Exurban Tiers, the impact on the lifestyle and character of these tiers, including maintaining physical contiguity of existing neighborhoods and land use compatibility; The ability of the property to maximize the use of existing and/or planned public facilities and services under the proposed tier designation; For redesignations to the Urban/Suburban Tier, the potential for the Tier redesignation to further County land use goals and objectives, such as mixed-use development in appropriate locations, provision and geographic dispersal of affordable and workforce housing and/or improvement of public transit; and, The presence or absence of natural or built features which currently serve as, or have potential to serve as, logical demarcations between Tiers. Some tier re-designation factors may warrant more weight than others in the review of a particular tier re- designation application. Policy 1.1-b does not indicate that a negative conclusion with respect one or more factors requires the denial of a requested tier re-designation. However, the County’s Planning Director stated that a project should meet “at least most” of the pertinent factors to justify approved. PART II - BALSAMO The Balsamo Property and Surrounding Land Uses The Balsamo property is located on the north side of Northlake Boulevard, approximately .75 miles east of the intersection of Northlake Boulevard with Coconut Boulevard. The property has been mostly cleared of vegetation. It was actively farmed for vegetable production in the past, but is now being used as pasturage for cattle and goats. The Balsamo property is located in a part of the County where the irregularly shaped boundaries of the unincorporated County, the City of Palm Beach Gardens, and the City of West Palm Beach either touch or come close to one another. Based on the Tier Map, it is also one of the few areas of the County where three tiers (in this case, Urban/Suburban, Exurban, and Rural) come together. To the west and north of the Balsamo property is the Vavrus property, over 4,000 acres in size, consisting of improved pasture land and large wetland areas. The area of the Vavrus property that is contiguous to the Balsamo property on the west has a land use designation of RR-20, one unit per 20 acres. Other areas of the Vavrus property are designated RR-10. To the east of the Balsamo property is a municipal golf course. The Vavrus property and the golf course are both located within the City of Palm Beach Gardens. Their land use designations were assigned by the City. Further east, on the north side of Northlake Boulevard, are two gated residential developments, Osprey Isles and Carleton Oaks. These developments consist of clustered, quarter-acre lots. They are within the jurisdiction of the County. They have a land use designation of LR-1, the same designation which the Balsamo amendment gives to the Balsamo property. In this same area are a cemetery and land designated Commercial Low/Office. Osprey Isles, Carlton Oaks, the cemetery, and the commercial parcel are all within a relatively narrow Urban/Suburban “peninsula” extending north into a Rural Tier area of the City of Palm Beach Gardens. See Map LU 1.1 in the Comprehensive Plan. South of the Balsamo property, across Northlake Boulevard, is Bayhill Estates, a gated golf course-oriented, residential community with a density of one unit per two acres. West of Bayhill Estates is the Acreage, an old subdivision with about 40,000 residents and developed at 1 unit per 1.25 acres with individual water wells and septic tanks. Bayhill Estates and the Acreage are within the Exurban Tier. Southwest of the Balsamo property, and across Northlake Boulevard from the Vavrus tract, are two institutional land uses. The closer one is the site for a proposed new post office. Further west is Pierce Hammock Elementary School. Southeast of the Balsamo property is the Rustic Lakes development, a subdivision with a land use designation of RR-5 (one unit per five acres). Rustic Lakes is in the Rural Tier. Along the northeast corner of Rustic Lakes, fronting on Northlake Boulevard, is a parcel designated Commercial Low/Office, which is also in the Rural Tier. East of Rustic Lakes is the Ibis development, the largest gated, golf course development in the area, which consists of approximately 2,000 clustered homes with a gross density of 1.25 dwelling units per acre. At the northeast corner of the Ibis development, fronting on Northlake Boulevard, are the Shoppes of Ibis, an 80,000 square-foot neighborhood commercial retail center, anchored by a Publix grocery store and with other uses, including a gas station, banks and restaurants. Both Ibis and the Shoppes at Ibis are located within the City of West Palm Beach and in the Urban/Suburban Tier. Northlake Boulevard is a four-lane, divided, arterial roadway programmed for expansion to six lanes. Potable water and sewer lines are located along the southern boundary of the Balsamo property. Schools, emergency medical services, fire, and police services are also available to serve the property. Internal Consistency Policy 1.1-b 1(a) - Contiguity Petitioners contend that the Balsamo amendment is inconsistent with FLUE Policy 1.1-b 1(a), which states that a tier boundary shall not be changed unless the land to be assigned to another tier is contiguous to the tier to which it would be assigned. Petitioners assert that the Balsamo property is not contiguous to the Urban/Suburban Tier because it is not physically touching the tier. The term “contiguous” is not defined in the context of the FLUE policies related to tier re-designation. Petitioners, themselves, offered testimony about the dictionary meanings of “contiguous” that included the accepted meanings of “in close proximity,” “near,” and “close.” Petitioners referred to some statements of the County planning staff that were made at the time the contiguity requirement was added to the FLUE, which suggest that the term “contiguous” was intended to mean physical touching. However, these statements were not made in the context of a discussion of whether any other meaning might sometimes be appropriate. The County has not abandoned the notion that lands to be assigned to a tier usually must be physically touching the tier to which it would be assigned. The County used a “functional contiguity” analysis in determining that the Balsamo property was contiguous to the Urban/Suburban Tier. The County concluded that, because the property was separated from the tier boundary by land within a municipality (Palm Beach Gardens) and the intervening municipal land use is suburban in character (municipal golf course), the Balsamo property was functionally contiguous to the Urban/Suburban Tier. Although a “functional contiguity” approach might be reasonable under some circumstances, its application in the Balsamo amendment is inconsistent with the Managed Growth Tier System. Here, instead of reassigning both the Balsamo property and the golf course to the Urban/Suburban Tier, the County determined that the golf course should remain in the Rural Tier and leap-frogged over the golf course to assign only the Balsamo property to the Urban/Suburban Tier. Respondents emphasize that the County has no regulatory jurisdiction over the municipal golf course. They suggest, therefore, that its Rural Tier designation can be ignored or discounted. However, that is not how the County’s Tier System was designed. The County chose to recognize and account for land uses on adjacent municipal lands as part of the Tier System, not because the County could thereby control the future uses of municipal lands, but because recognizing adjacent uses within the municipalities furthered the purpose of the Tier System to “allow for a diverse range of lifestyle choices, and livable, sustainable communities.” Therefore, the tier assignments given to municipal lands cannot be ignored or discounted. Respondents also emphasize that the golf course use is suburban in character and, therefore, is not incompatible with the LR-1 land use designation for the Balsamo property. However, that does not erase the inconsistency stated above. The golf course is in the Rural Tier and is not incompatible with rural land uses. In approving the Balsamo amendment while preserving the Rural Tier designation for the golf course, the County acted inconsistently, and its action shows a failure to review Balsamo’s requested tier re-designation comprehensively as required by Policy 1.1-b, with attention to the lands surrounding the Balsamo property and consideration of their appropriate tier designations. Policy 1.1-b 1(b) – The Study Petitioners contend that the Balsamo amendment is inconsistent with Policy 1.1-b 1(b) which requires that a study be conducted for any tier re-designation to determine the appropriate tier designation of the “area and its surroundings.” The policy contains a statement that, if any property not within a Sector Plan area is removed from a tier through the future land use amendment process, “the Planning Division shall conduct a Study” to determine “if and how tier boundaries need to be further adjusted in the area of the property.” Petitioners argue that this means the study must be initiated and produced by the County planning staff, which was not done for the Balsamo amendment. The County’s position, on the other hand, is that the requirement for a tier re- designation study can be satisfied by an applicant’s data and analysis and other information produced during the amendment process and reviewed by the County planning staff. Petitioners attack the data and analysis submitted by Balsamo as lacking the comprehensiveness that is required for a tier study. However, that is an attack on the content of Balsamo’s study. Petitioners did not show that it is impossible for an applicant’s data and analysis to be comprehensive. The County interpretation of its study requirement to allow for applicant-generated studies does not impair the achievement of the goals, objectives, or policies of the Comprehensive Plan because the interpretation does not prevent the investigation, presentation of data, or analysis of all relevant factors that were intended by the requirement for a tier re-designation study. The County’s allowance for an applicant-generated study also avoids the disputes that could arise if the County delays in conducting the study, or if the applicant wants to augment a County study.2 Policy 1.1-b 2 – Sufficiency of the Study In this case, however, the study presented by Balsamo was not the comprehensive analysis required by Policy 1.1-b. The data and analysis submitted by Balsamo almost exclusively addresses the suitability of the LR-1 land use designation for the Balsamo property and its compatibility with other land uses in the area. It does not adequately address the appropriateness of other land use designations in the area, how other land uses in the area have been affected by changed conditions, how other land uses in the Rural Tier would be affected by the Balsamo amendment, and whether other tier re-designations are justified for the area. Balsamo’s allegation that there is a deficit of residential land uses in the County tends to contradict his contention that his tier re-designation study is sufficiently comprehensive. The Balsamo study does not address the deficit comprehensively. If there is a deficit, it should be addressed comprehensively by the County rather than by the piecemeal granting of private applications to convert rural lands to allow for urban densities at the fringe of urban infrastructure and services. In a comprehensive tier study, if higher residential densities are needed, the County can also consider where best to increase densities. Before discussing how the Balsamo amendment measures against the seven tier re-designation factors in Policy 1.1-b.2, it is noted that the policy begins with a statement that the tier re-designation process was established “to respond to changed conditions.” Balsamo’s argument that there are changed conditions that justify the requested tier re-designation is not persuasive because the land use changes in the area have not changed the fundamental character of the Balsamo property as the beginning of the rural and agricultural area that extends west. Balsamo relies in large part on changes that have occurred in the adjacent tiers. Lands that are located at the boundary of a tier, by definition, will be located next to lands where different uses currently exist or are allowed to develop. Recent development activities in the adjacent tier, if in conformance with the land use designations for lands in the tier, should usually not be given great weight when considering whether changed conditions justify a tier change.3 More important changed conditions would include an increase or decrease in the need for a certain type of land use, new conditions that have the effect of isolating a parcel or an area from similar lands uses, or other circumstances that materially reduce the appropriateness of the allowed uses. Policy 1.1-b 2 – Tier Re-designation Factors The first of the seven factors in Policy 1.1-b is “The availability of sufficient land to accommodate growth within the long range planning horizon, considering existing development approvals.” In his application for the land use change and tier re-designation, Balsamo claimed that there is a need to increase the allowable density on the Balsamo property from 10 to 97 dwelling units because of the housing demand created by the Scripps Research Institute and “ancillary development” on the Vavrus property. These projects, however, were substantially modified and are no longer being proposed in the vicinity of the Balsamo property. As part of its periodic Evaluation and Appraisal Report (EAR), the County reviews the Managed Growth Tier System to evaluate the need to re-designate lands in response to any projected increases in population growth within the long-range planning horizon. This evaluation process is supposed to include a consideration of the criteria in Policy 1.1-b. The 2004 EAR concluded that the County’s projected population by 2025 “can be accommodated on developable lands under the current adopted Plan,” and, therefore, “the western boundaries of the coastal tiers do not need to be expanded further west in order to accommodate projected population and development activities beyond the County’s planning horizon of 2025.” The term “coastal tiers,” is not used in the Comprehensive Plan, but is used by the County to refer to all of the tiers that are east of the conservation areas and the Everglades Agricultural Area, including the Urban/Suburban Tier.4 Balsamo presented expert opinions that the buildout date for the County was not 2025, but closer to 2015, based on needs assessments conducted in conjunction with the Scripps project and another large development proposal (Callery Judge Groves).5 The opinions expressed that the allowable density on the Balsamo property needs to be increased to accommodate an imminent housing deficit in the County are given little weight because there is insufficient supporting data in the record that can be reviewed to determine the credibility of the opinions.6 The opinions were not based on comprehensive need assessments conducted by the expert witnesses who expressed the opinions, but on need assessments they had seen that were produced by other consultants. The need assessments referred to were conducted in the context of unusually large mixed-use projects that were never developed. Many of the assumptions supporting the conclusions of the need assessments are no longer accurate. Which conclusions in the need assessments might still be reliable cannot be determined from the record. The nation’s economic downturn has reduced population growth in the County. In contrast, the needs assessments cited by Balsamo’s planning experts were conducted during a housing market boom. It is significant that the County’s planning staff and the Department’s planning staff, who were aware of these previous need assessments when they reviewed the Balsamo amendment, determined that there was no need to increase residential density on the Balsamo property. The first tier re-designation factor does not support the Balsamo amendment. The second tier re-designation factor is “The need to balance future land uses, considering the impact of continued development on an area and/or its demographics.” There are a variety of land uses in the area of the Balsamo property, but there is currently some imbalance between residential and non- residential uses, with a need for more non-residential uses. The requested LR-1 land use designation for the Balsamo property would worsen to some degree the current imbalance of uses. The second tier re-designation factor does not support the Balsamo amendment. The third tier re-designation factor is “the necessity of designating additional land for urban/suburban development in the particular location, considering any infill or redevelopment opportunities in the Urban Redevelopment Area (URA) or Revitalization and Redevelopment Overlay (RR-O).” Petitioners did not identify or describe the infill or redevelopment opportunities in the URA and RR-O, but argued that any development outside of the URA and RR-O inhibits the County’s objectives regarding these two areas. The record evidence is ambiguous with regard to whether this factor includes a consideration of infill opportunities elsewhere in the Urban/Suburban Tier. Petitioners had the burden of proof and failed to demonstrate that infill opportunities elsewhere in the Urban/Suburban Tier are a valid consideration under this factor. The Balsamo amendment would have little or no effect on infill opportunities in the URA and RR-O. The Balsamo amendment is neutral with respect to the third tier re-designation factor. The fourth tier re-designation factor is “the impact on the lifestyle and character” of the Rural Tier. In 1998, the Western Northlake Corridor Land Use Study (WNCLUS) was produced. The WNCLUS was a joint effort of the County and the Cities of Palm Beach Gardens and West Palm Beach to examine existing land use patterns and future land uses along Northlake Boulevard, west of the West Palm Beach Water Catchment Area, and south of the Beeline Highway, an area that includes the Balsamo property. The purpose of the WNCLUS was to determine the appropriate land uses in the area that would “preserve and enhance the rural character, while recognizing and planning for limited urban development.” Balsamo asserts that the WNCLUS is outdated and “inappropriate as data and analysis” because public water and sewer lines have been extended further west than they existed in 1998. Neither this change, nor the others noted by Balsamo, negate the general relevance of the findings and recommendations of the WNCLUS, which are still worth considering. The WNCLUS concluded that, “The data and analysis do not support the conversion of rural residential land to an urban density within the Planning Horizon,” and “[t]he rural lands within the study area should retain the RR-10 or RR-20 land use designations.” Much of Balsamo’s evidence addressed the proposition that the LR-1 land use designation is compatible with, and even more like, nearby land uses. Petitioners believe the LR-1 land use is incompatible with the adjacent rural and agricultural land uses. Changing the land use designation of the Balsamo property from RR-10 to LR-1, alone, would not create significant incompatibility with other land uses in the Rural Tier in this area of the County. However, by reducing the total area of rural lands in this portion of the Rural Tier, and by placing urban density in this location, the amendment detracts to a small degree from the area’s “lifestyle and character.” The changes that have occurred near the Balsamo property have not isolated it from other rural and agricultural lands nor have they materially reduced the appropriateness of its use for agriculture or rural residential development. Petitioners contend that the Balsamo amendment would create a precedent for the re-designation of other Rural Tier lands that would eventually destroy the rural character of the area. However, the other Rural Tier lands near the Balsamo property are within the jurisdiction of Palm Beach Gardens. The Balsamo precedent would have to have its effect on the land use decisions of the City of Palm Beach Gardens. It is too speculative to make a factual finding that the Balsamo amendment would result in future City actions that adversely affect the character and lifestyle of rural lands in the area of the Balsamo property. The fourth tier re-designation factor does not support the Balsamo amendment. The fifth tier re-designation factor is “The ability of the property to maximize the use of existing and/or planned public facilities and services.” Public facilities and services are available to the Balsamo property and, therefore, the fifth tier re-designation factor supports the Balsamo amendment. The sixth tier re-designation factor is whether the re- designation furthers County land use goals and objectives, “such as mixed-use development in appropriate locations, provision and geographic dispersal of affordable and workforce housing and/or improvement of public transit.” Balsamo does not further any goals and objectives related to mixed-use development or improvement of public transit. Balsamo would have to comply with the County’s minimum workforce housing requirement, applicable to all new developments. Petitioners assert that it is inconsistent with the Tier System to put workforce housing in the Rural Tier, but the Balsamo amendment would not put workforce housing in the Rural Tier. The amendment would put workforce housing on the Balsamo property in the Urban/Suburban Tier. Under generally accepted planning principles, placing affordable housing far from job centers and the services usually associated with persons of low or moderate income is not “preferred.” The Balsamo amendment is neutral or slightly positive with respect to the sixth tier re-designation factor, but only because it is assumed that this factor was not intended to involve a balancing of any goals and objectives that are furthered by the amendment with other goals and objectives that are impaired. The seventh tier re-designation factor is “The presence or absence of natural or built features which currently serve as, or have the potential to serve as, logical demarcations between tiers.” Petitioners contend that the Balsamo amendment creates an irregular tier boundary with no clear natural or built feature to serve as a logical demarcation. Although the County included this factor to be considered in the review of a tier re-designation proposal, it must be considered in the context of a tier system in which the more fundamental objective is to delineate areas with “common characteristics, including physical development patterns and service provision,” which create “communities that share common characteristics” and “lifestyles.” Many of the current tier boundaries are based on natural and built features, but some boundaries follow property lines. In the vicinity of the Balsamo property, the tier boundaries are based on a combination of a built feature, Northlake Boulevard, and property boundaries. The Balsamo amendment would create a small, isolated piece of Urban/Suburban Tier and, therefore, it detracts from the objective to have the tier boundaries be as regular as possible. The boundary change is not justified by a need to better delineate the communities or lifestyles in the area. The seventh tier re-designation factor does not support the Balsamo amendment. Overall, the tier re-designation for the Balsamo property is not justified under the tier re-designation factors in Policy 1.1-b. Policy 2.2-b FLUE Policy 2.2-b requires demonstration of need for any proposed future land use change: Before approval of a future land use amendment, the applicant shall provide an adequate justification and a demonstrated need for the proposed future land use, and for residential density increases demonstrate that the current land use is inappropriate. An adequate justification and demonstrated need for the land use change from RR-10 to LR-10 for the Balsamo property was not provided by Balsamo. The current RR-10 land use designation was not shown to be inappropriate for the property. Policy 2.2-c Policy 2.2-c states that the County shall use the “County Directions” in the introduction section of the FLUE to guide future land use decisions. The County Directions are general statements that are not identified as goals, objectives, or policies of the Comprehensive Plan. Petitioners claim that the Balsamo amendment is inconsistent with “Policy 2.2-c, FLUE Section 1-A – C,” but sections A and B are not part of the County Directions, which are only in section C. Section C includes a statement that the County will direct the location, type, intensity, and form of development that respects the characteristics of a particular area, prevents urban sprawl, and provides public facilities and services in a cost-efficient manner. For the reasons set forth above, the County’s approval of the Balsamo amendment is inconsistent with Policy 2.2-c. Policy 2.2.1-b Petitioners contend that the Balsamo amendment is inconsistent with Policy 2.2.1-b of the FLUE, which requires that residential land uses be protected from encroachment of incompatible future land uses. The more persuasive evidence does not show that the Balsamo amendment would be inconsistent with Policy 2.2.1-b. Urban Sprawl Policy 1.1-d states that, “The County shall not modify the Tier System if the redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006.5, [sic] Florida Administrative Code.” Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl to be considered in the review of a comprehensive plan amendment to determine whether the presence of multiple indicators “collectively reflect a failure to discourage urban sprawl.” Petitioners claim that the Balsamo amendment “triggers” six of the indicators.7 Only these six indicators are discussed below. The first indicator is the designation for development of “substantial areas of the jurisdiction” as low-intensity, low-density, or single-use development or uses in excess of demonstrated need.” Fla. Admin. Code R. 9J-5.006(5)(g)1. Balsamo argued that his property represents a tiny fraction of the total area of the County, so that this indicator cannot be triggered by the Balsamo amendment. However, the wording of the rule does not make the indicator applicable exclusively to an amendment that would, by itself, designate a substantial land area for low-density uses. The wording allows for a consideration of whether an amendment contributes to the local government’s total low-density land uses “in excess of demonstrated need.” Petitioners did not prove that there is an excessive amount of low-density residential development in the County. The second indicator is the designation of urban development in “radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.” Fla. Admin. Code R. 9J-5.006(5)(g)3. Petitioners contend that the Balsamo amendment would contribute to a strip urban pattern. The Balsamo amendment would extend a suburban use along the north side of Northlake Boulevard. If every extension of a suburban or urban use qualifies as a “strip,” this indicator would be rendered meaningless. The addition of the Balsamo amendment to the existing configuration of land uses in the area does not create strip sprawl. The third indicator is the failure to provide a “clear separation between rural and urban uses.” Fla. Admin. Code R. 9J-5.006(5)(g)9. This indicator is triggered because the Balsamo amendment would result in an isolated area of urban use within the Rural Tier. The boundary between the Balsamo property and contiguous Rural Tier lands would be Balsamo’s property lines. The municipal golf course is a better separation and buffer between urban and rural uses in this area than the Balsamo property with a LR-1 land use designation. The fourth primary indicator is the discouragement of infill development or the redevelopment of existing neighborhoods and communities. Fla. Admin. Code R. 9J- 5.006(5)(g)10. The Balsamo amendment discourages infill and redevelopment because it is “outfill.” It diminishes the effectiveness of existing incentives and measures to promote infill and urban redevelopment within the Urban/Suburban Tier by allowing urban development to go “outside.” The fifth indicator is failure to encourage an attractive and functional mix of uses. Fla. Admin. Code R. 9J- 5.006(5)(g)11. The Balsamo amendment does not provide for a mixed- use development and there is no shortage of LR-1 and comparable land uses in the area of the Balsamo property. Therefore, the Balsamo amendment does not encourage a mix of uses. Furthermore, the Balsamo amendment detracts from the existing “functional mix” of uses because it would eliminate the buffer now provided by the golf course and is less compatible with the adjacent rural lands if developed at one unit per acre. The sixth indicator of urban sprawl is causing “poor accessibility among linked or related land uses.” Fla. Admin. Code R. 9J-5.006(5)(g)12. There are no directly linked land uses adjacent to the Balsamo property, so poor accessibility between linked uses is not an applicable consideration. Northlake Boulevard gives the Balsamo property access to non-residential uses east of the property. Several of the indicators of urban sprawl in Florida Administrative Rule 9J-5.006(5) could also describe poorly planned future land use amendments that do not constitute urban sprawl. Although the Balsamo amendment exhibits some of the indicators of urban sprawl, Petitioners did not prove that the presence of these indicators collectively reflect a failure of the County to discourage urban sprawl. Strategic Regional Policy Plan Petitioners claim that the Balsamo amendment is inconsistent with certain provisions of the Strategic Regional Policy Plan adopted by the Treasure Coast Regional Planning Council. In the Pre-hearing Stipulation, Petitioners identified three provisions at issue. Petitioners are held to their stipulation and no finding is made with regard to the other provisions that Petitioners addressed in their Proposed Recommended Order. Regional Policy 9.1.1.1 is to “Encourage patterns of development and programs which reduce dependency on the automobile, encourage and accommodate public transit, and reduce the overall use of fossil fuels.” The Balsamo amendment does not further this regional policy because it places more residences distant from the urban center and other vehicle destinations. However, Petitioners did not show that the adverse effect of the Balsamo amendment, in this respect, would be significant. Regional Policy 7.1.3.1 is to “Encourage patterns and forms of development and redevelopment that maximize public transportation alternatives, minimize the use of the Region’s collector and arterial roadway network, and reduce the total amount of daily vehicle miles traveled.” For the same reason stated above, the Balsamo amendment does not further this regional policy. However, Petitioners did not show that the adverse effect of the Balsamo amendment, in this respect, would be significant. Regional Strategy 2.1.2 is to “discourage sprawling development patterns to ensure compatibility of urban areas, natural preserves and open spaces.” The Balsamo amendment will detract from the rural character and lifestyle in this area of the Rural Tier, but Petitioners did not show that there would be any significant incompatibility. State Comprehensive Plan In their amended petition, Petitioners adopted by reference the Department’s original position that the Balsamo amendment was inconsistent with provisions of the State Comprehensive Plan set forth in Chapter 187, Florida Statutes. However, in the Pre-Hearing Stipulation, Petitioners did not identify consistency with the State Comprehensive Plan as remaining at issue. Petitioners are held to their stipulation and, therefore, no findings regarding the State Comprehensive Plan are made here. PART III – LANTANA FARM The Lantana Farm Property and Surrounding Land Uses The Lantana Farm property is located approximately 1500 feet west of the intersection of Lantana Road and State Road The property is three quarters of a mile long from its eastern to western boundary, but only 369 feet deep at its widest point. The property was in active agricultural use in the past but is currently vacant. A drainage ditch runs along the Property’s south boundary. The Lantana Farm property is within the Rural Tier, as are lands to the east, south, and west of the property. The Lantana Farm property shares a boundary with the Urban/Suburban Tier along the property’s northern border. It is a quarter of a mile west of the Urban/Suburban Tier boundary formed by SR 7. Lantana Road extends west of SR 7 to a point near the middle of the northern boundary of the Lantana Farm property. It is not all paved and does not appear to be a County maintained road. The land uses north of the Lantana Farm property, within the Urban/Suburban Tier, are designated LR-1, but are developed at various densities between about .5 and 3.0 units per acre. To the east, between the Lantana Farm property and the Urban/Suburban Tier boundary at SR 7, are a four-acre parcel and a one-acre parcel, both with RR-10 land use designations. The four-acre parcel is zoned General Commercial. General Commercial zoning is not allowed within the Rural Tier, but the parcel was zoned before the County implemented its Managed Growth Tier System. These two parcels are included with the Lantana Farm parcel in the Lantana Farm amendment and would be placed in the Urban/Suburban Tier. However, the parcels still retain their RR-10 land use designations. The RR-10 land use is not an allowed use within the Urban/Suburban Tier. There was no explanation given for why the land use designations for these two parcels were not changed as part of the Lantana Farm amendment. It was simply stated that these discrepancies would be corrected later. South of the Lantana Farm property are three parcels of land, all with RR-10 land use designations. Two of the parcels, each approximately 35 acres in size, have television broadcasting antennas located on them. The other parcel is an 80-acre commercial wholesale nursery with warehouses, loading structures, and growing areas. Further south, is the Heritage Farms residential subdivision which has an RR-10 land use designation, but is developed at an average of one unit per five acres, and the South Florida Area National Cemetery, which has an RR-10 designation. To the west of the Lantana Farm property is the Homeland subdivision with an RR-5 land use designation (one unit per five acres). The Lantana Farm property is separated from Homeland by a power line easement and a canal. Commercial and industrial uses in the area include industrial warehouse uses extending from the easternmost boundary of the Lantana Farm property, commercial uses and a gas station at the northwest intersection of SR 7 and Lantana Road, a Super Target at the northeast corner of the intersection, and other commercial uses along SR 7. Public water and sewer lines are near the Lantana Farm property. Schools, emergency medical services, fire and police services are also available to serve the property. Internal Consistency Policy 1.1-b 1(b) – The Study Petitioners contend that the Lantana Farm amendment is inconsistent with Policy 1.1-b 1(b) which requires that a study be conducted for any tier re-designation to determine the appropriate tier designation of the “area and its surroundings.” The policy contains a statement that, if any property not within a Sector Plan area is removed from a tier through the future land use amendment process, “the Planning Division shall conduct a study” to determine “if and how tier boundaries need to be further adjusted in the area of the property.” Petitioners argue that this means the study must be initiated and produced by the County planning staff, which was not done for the Lantana Farm amendment. The County’s position, on the other hand, is that the requirement for a tier re- designation study can be satisfied by an applicant’s data and analysis and other information produced during the amendment process and reviewed by the County planning staff. Petitioners attack the data and analysis submitted by Lantana Farm as lacking the comprehensiveness that is required for a tier study. However, that is an attack on the content of Lantana Farm’s study. Petitioners did not show that it is impossible for an applicant’s data and analysis to be comprehensive. The County interpretation of its study requirement to allow for applicant-generated studies does not impair the achievement of the goals, objectives, or policies of the Comprehensive Plan because the interpretation does not prevent the investigation, presentation of data, or analysis of all relevant factors that were intended by the requirement for a tier re-designation study. The County’s allowance for an applicant-generated study also avoids the disputes that could arise if the County delays in conducting the study, or if the applicant wants to augment a County study.8 Policy 1.1-b.2 – Sufficiency of the Study In this case, however, the study presented by Lantana Farm was not the comprehensive analysis required by Policy 1.1-b. The data and analysis submitted by Lantana Farm almost exclusively addresses the suitability of the LR-1 land use designation for the Lantana Farm property and its compatibility with other land uses in the area. It does not adequately address the appropriateness of other land use designations in the area, how other land uses in the area have been affected by changed conditions, how other land uses in the Rural Tier would be affected by the Lantana Farm amendment, and whether other tier re-designations are justified for the area.9 Lantana Farm’s allegation that there is a deficit of residential land uses in the County tends to contradict its contention that the tier re-designation study is sufficiently comprehensive. The Lantana Farm study does not address the deficit comprehensively. If there is a deficit, it should be addressed comprehensively by the County rather than by the piecemeal granting of private applications to convert rural lands to allow urban densities at the fringe of urban infrastructure and services. In a comprehensive tier study, if higher residential densities are needed, the County can consider where best to increase densities. Before discussing how the Lantana Farm amendment measures against the seven tier re-designation factors in Policy 1.1-b.2, it is noted that the policy begins with a statement that the tier re-designation process was established “to respond to changed conditions.” Lantana Farm relies in part on the changes that have occurred in the adjacent Urban/Suburban Tier. Lands that are located at the boundary of a tier, by definition, will be located next to lands where different uses currently exist or are allowed. Therefore, recent development activities in the adjacent tier, if in conformance with the land use designations for lands in the tier, usually should not be given great weight when considering whether changed conditions near a parcel justify a tier change. More important changed conditions would include an increase or decrease in the need for a certain type of land use, new conditions that have the effect of isolating a parcel or an area from similar lands uses, or other circumstances that materially reduce the appropriateness of the allowed uses. Policy 1.1-b.2 – Tier Re-designation Factors The first of the seven factors in Policy 1.1-b is “The availability of sufficient land to accommodate growth within the long range planning horizon, considering existing development approvals.” As part of its periodic Evaluation and Appraisal Report (EAR), the County reviews the Managed Growth Tier System to evaluate the need to re-designate lands in response to any projected increases in population growth within the long-range planning horizon. This evaluation process is supposed to include the consideration of the criteria in Policy 1.1-b. The 2004 EAR concluded that the County’s projected population by 2025 “can be accommodated on developable lands under the current adopted Plan,” and, therefore, “the western boundaries of the coastal tiers do not need to be expanded further west in order to accommodate projected population and development activities beyond the County’s planning horizon of 2025.” The term “coastal tiers,” is not used in the Comprehensive Plan, but is used by the County to refer to all of the tiers that are east of the conservation areas and the Everglades Agricultural Area, including the Urban/Suburban Tier.10 Lantana Farm presented expert opinions that the buildout date for the County was not 2025, but closer to 2015, based on needs assessments conducted in conjunction with the Scripps project and another large development proposal (Callery Judge Groves). The opinions expressed that the allowable density on the Lantana Farm property is needed to accommodate an imminent housing deficit in the County are given little weight because there are insufficient supporting data in the record that can be reviewed to determine the credibility of the opinions.11 The opinions were not based on comprehensive need assessments conducted by the expert witnesses who expressed the opinions, but on need assessments they had seen that were produced by other consultants. The need assessments referred to were conducted in the context of unusually large mixed-use projects that were never developed. Many of the assumptions supporting the conclusions of the need assessments are no longer accurate. Which conclusions of the need assessments might still be reliable cannot be determined from the record. The Nation’s economic downturn has reduced population growth in the County. In contrast, the needs assessments cited by Lantana Farm’s planning experts were conducted during a housing market boom. It is significant that the County’s planning staff and the Department’s planning staff, who were aware of these previous need assessments when they reviewed the Lantana Farm amendment, determined that there was no need to increase residential density on the Lantana Farm property. The first tier re-designation factor does not support the Lantana Farm amendment. The second tier re-designation factor is “The need to balance future land uses, considering the impact of continued development on an area and/or its demographics, as identified through a Specific Area Plan within a Sector Plan or through the Community Planning process.” Because the Lantana Farm property is not addressed in any such specific plan, this factor is not applicable. The third tier re-designation factor is “the necessity of designating additional land for urban/suburban development in the particular location, considering any infill or redevelopment opportunities in the Urban Redevelopment Area (URA) or Revitalization and Redevelopment Overlay (RR-O).” Petitioners did not identify or describe the infill or redevelopment opportunities in the URA and RR-O, but argued that any development outside of the URA and RR-O inhibits the County’s objectives regarding these two areas. The record evidence is ambiguous with regard to whether this factor includes a consideration of infill opportunities elsewhere in the Urban/Suburban Tier. Petitioners had the burden of proof and failed to demonstrate that infill opportunities elsewhere in the Urban/Suburban Tier are a valid consideration under this factor. The Lantana Farm amendment would have little or no affect on the URA and RR-O. The Lantana Farm amendment is neutral with respect to the third tier re-designation factor. The fourth tier re-designation factor is “the impact on the lifestyle and character” of the Rural Tier. The existence of a genuine agricultural “lifestyle” in this area of the Rural Tier was not shown. The land uses surrounding the Lantana Farm property cause it (and the wholesale nursery site) to be somewhat isolated from other agricultural uses. The size and dimensions of the Lantana Farm property limit the kinds of agricultural operations it can accommodate. The property is also isolated from other RR-10 developments. The other residential developments in the Rural Tier are more RR-5 in character and “lifestyle” than RR-10. However there is a rural residential lifestyle and character in this area. The LR-1 land use designation for Lantana Farm property will detract to a small degree from the rural residential lifestyle and character. Petitioners contend that the Lantana Farm amendment will lead to other tier re-designations that, together, would substantially detract from the rural lifestyle and character of the Rural Tier in this area. However, there are a few factors, primarily the frontage along the Lantana Road extension, that create a material distinction between the properties included in the Lantana Farm amendment from the parcels to the south. Therefore, it is too speculative to find that the Lantana Farm amendment would lead to the re-designation of the southern parcels from the Rural Tier to the Urban/Suburban Tier. The fourth tier re-designation factor does not support the Lantana Farm amendment. The fifth tier re-designation factor is “The ability of the property to maximize the use of existing and/or planned public facilities and services.” Public facilities and services are currently available to the Lantana Farm property, except that the Lantana Road extension, a partially unpaved road, is not currently suitable to serve increased residential densities. The Lantana Farm amendment is neutral or somewhat supported by the fifth tier re-designation factor. The sixth tier re-designation factor is whether the tier re-designation would further County land use goals and objectives, “such as mixed-use development in appropriate locations, provision and geographic dispersal of affordable workforce housing and/or improvement of public transit.” Lantana Farm would comply with the County’s minimum workforce housing requirements and provide two affordable housing units out of the 26 dwelling units on the property. All new residential developments must comply with the workforce housing requirement. The other identified County land use goals and objectives are not furthered by the Lantana Farm amendment. Petitioners assert that it is inconsistent with the Tier System to put workforce housing in the Rural Tier, but the Lantana Farm amendment would not put workforce housing in the Rural Tier. The amendment would put workforce housing on the Lantana Farm property in the Urban/Suburban Tier. Under generally accepted planning principles, placing affordable housing far from job centers and the services usually associated with persons of low or moderate income is not “preferred.” The Lantana Farm amendment is neutral or slightly positive with respect to the sixth tier re-designation factor, but only because it is assumed that this factor was not intended to involve a balancing of any goals and objectives that are furthered by the amendment with other goals and objectives that are impaired. The seventh tier re-designation factor is “The presence or absence of natural or built features which currently serve as, or have the potential to serve as, logical demarcations between tiers.” Although the County included this factor to be considered in the review of a tier re-designation proposal, it must be considered in the context of a system in which the more fundamental objective is to delineate areas with “common characteristics, including physical development patterns and service provision,” which create “communities that share common characteristics” and “lifestyles.” Many of the current tier boundaries are based on natural and built features, but some of the boundaries coincide with property lines. In the vicinity of the Lantana Farm property, the tier boundaries are built features -- roadways and a canal. The Lantana Farm amendment would not make the tier boundary in this area more definite or more regular. It would make the boundary less clearly demarked and harder to maintain. The seventh tier re-designation factor does not support the Lantana Farm amendment. Overall, the tier re-designation for the Lantana Farm property is not justified under the tier re-designation factors in Policy 1.1-b. Policy 2.2-b FLUE Policy 2.2-b requires a demonstration of need for any proposed future land use change: Before approval of a future land use amendment, the applicant shall provide an adequate justification and a demonstrated need for the proposed future land use, and for residential density increases demonstrate that the current land use is inappropriate. The record evidence does not provide an adequate justification and demonstrated need to change the future land use for the Lantana Farm property from RR-10 to LR-1. Although an RR-5 land use designation might be more appropriate for the Lantana Farm property, the current RR-10 land use designation is not inappropriate. Policy 2.2-c Policy 2.2-c states that the County shall use the “County Directions” in the introduction section of the FLUE to guide future land use decisions. The County Directions are general statements that are not identified as goals, objectives, or policies of the Comprehensive Plan. Petitioners claim that the Lantana Farm amendment is inconsistent with “Policy 2.2-c, FLUE Section 1-A – C,” but sections A and B are not part of the County Directions, which are only in section C. Section C includes a statement that the County will direct the location, type, intensity, and form of development that respects the characteristics of a particular area, prevents urban sprawl, and provides public facilities and services in a cost-efficient manner. For the reasons set forth above, the County’s approval of the Lantana Farm amendment is inconsistent with Policy 2.2-c. Policy 2.2-f Petitioners contend that the Lantana Farm amendment is inconsistent with Policy 2.2-f of the Comprehensive Plan which prohibits piecemeal development or development which creates residual parcels. However, Petitioners did not meet their burden to show that the Lantana Farm amendment was “piecemeal development” or created a “residual parcel,” as those terms are defined in the Comprehensive Plan. Policy 2.2.1-b Petitioners contend that the Lantana Farm amendment is inconsistent with Policy 2.2.1-b of the FLUE, which requires that residential land uses be protected from encroachment of incompatible future land uses. The more persuasive evidence does not show that the Lantana Farm amendment would be inconsistent with Policy 2.2.1-b. Urban Sprawl Policy 1-1-d states that, “The County shall not modify the Tier System if the redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006.5 [sic], Florida Administrative Code.” Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl to be considered in the review of a comprehensive plan amendment to determine whether the presence of multiple indicators “collectively reflect a failure to discourage urban sprawl.” Petitioner contend the Lantana Farm amendment triggers seven of the indicators. Those are the only indicators addressed below. The first indicator that Petitioners contend is triggered is the designation for development of “substantial areas of the jurisdiction” as low-intensity, low density, or single-use development or uses in excess of demonstrated need.” Fla. Admin. Code R. 9J-5.006(5)(g)1. Lantana Farm argued that its property represents a tiny fraction of the total area of the County, so this indicator cannot be triggered by the Lantana Farm amendment. However, the wording of the rule does not make the indicator applicable exclusively to an amendment that would, by itself, designate a substantial land area for low-density uses. The wording allows for a consideration of whether an amendment contributes to the local government’s total low-density land uses “in excess of demonstrated need.” Petitioners did not prove that there is an excessive amount of low-density residential development in the County. The second primary indicator is the designation of urban development in “radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.” Fla. Admin. Code R. 9J-5.006(5)(g)3. Petitioners contend that the Lantana Farm amendment would contribute to a strip urban pattern. However, the Lantana Farm amendment would simply “drop” the Urban/Suburban Tier boundary that is north of the Lantana Farm property uniformly to the south. Therefore the amendment would not create a strip. The addition of the Lantana Farm property to the existing configuration of tier boundaries does not create strip sprawl. The third primary indicator that Petitioners claim is triggered is “allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services.” Fla. Admin. Code R. 9J-5.006(5)(g)8. No evidence was presented by Petitioners regarding any proportional increase in time, money, and energy for providing and maintaining services that would result from the Lantana Farm amendment. Petitioners simply offered a conclusory statement that the amendment constituted inappropriate timing of the conversion of rural lands. The fourth indicator is the failure to provide a “clear separation between rural and urban uses.” Fla. Admin. Code R. 9J-5.006(5)(g)9. The Lantana Farm amendment would create a new tier boundary for the Urban/Suburban Tier that is not as clear a separation between rural and urban uses as currently exists. The fifth primary indicator is the discouragement of infill development or the redevelopment of existing neighborhoods and communities. Fla. Admin. Code R. 9J-5.006(5)(g)10. The Lantana Farm amendment discourages infill and redevelopment because it is “outfill.” It diminishes the effectiveness of existing incentives and measures to promote infill and urban redevelopment within the Urban/Suburban Tier by allowing urban development to go “outside.” Lantana Farm argues that the kind of suburban use provided in the Lantana Farm amendment serves a different market than in the URA and RR-O. That is probably correct, but does not address the opportunity to increase densities in other areas of the Urban/Suburban Tier. The sixth indicator is failure to encourage an attractive and functional mix of uses. Fla. Admin. Code R. 9J- 5.006(5)(g)11. There is no shortage of LR-1 and comparable land uses in the area of the Lantana Farm property. The Lantana Farm amendment does not encourage a functional mix of uses. Furthermore, the LR-1 density does not function well with the other rural residential uses in the Rural Tier. The seventh indicator of urban sprawl is causing “poor accessibility among linked or related land uses.” Fla. Admin. Code R. 9J-5.006(5)(g)12. There are no directly linked land uses adjacent to the Lantana Farm property, so poor accessibility between linked uses is not an applicable consideration. Lantana Road gives the Lantana Farm property access to non-residential uses east of the property. Several of the indicators of urban sprawl in Florida Administrative Rule 9J-5.006(5) could also describe poorly planned future land use amendments that do not constitute urban sprawl. Although the Balsamo amendment exhibits some rule’s indicators of urban sprawl, Petitioners did not prove that the presence of these indicators collectively reflect a failure of the County to discourage urban sprawl. Strategic Regional Policy Plan In the Pre-Hearing Stipulation, Petitioners claim that the Lantana Farm amendment is inconsistent with three provisions of the Strategic Regional Policy Plan adopted by the Treasure Coast Regional Planning Council. Petitioners are held to their stipulation and, therefore, no findings are made here regarding other provisions addressed by Petitioners in their Proposed Recommended Order. Regional Policy 9.1.1.1 is to “Encourage patterns of development and programs which reduce dependency on the automobile, encourage and accommodate public transit, and reduce the overall use of fossil fuels.” The Lantana Farm amendment does not further this regional policy because it places more residences at the edge of public infrastructure and services, and distant from the urban center. However, Petitioners did not show that the adverse effect of the Lantana Farm amendment, in this respect, would be significant. Regional Policy 7.1.3.1 is to “Encourage patterns and forms of development and redevelopment that maximize public transportation alternatives, minimize the use of the Region’s collector and arterial roadway network, and reduce the total amount of daily vehicle miles traveled.” For the same reason stated above, the Lantana Farm amendment does not further this regional policy. However, Petitioners did not show that the adverse effect of the Lantana Farm amendment, in this respect, would be significant. Regional Strategy 2.1.2 is to “discourage sprawling development patterns to ensure compatibility of urban areas, natural preserves and open spaces.” Although the Lantana Farm amendment would detract from the rural character of this area of the Rural Tier, Petitioners did not show that that it would cause any significant incompatibility. State Comprehensive Plan In their amended petition, Petitioners adopted by reference the Department’s original position that the Lantana Farm Amendment was inconsistent with certain provisions of the State Comprehensive Plan set forth in Chapter 187, Florida Statutes. However, Petitioners did not identify any State Comprehensive Plan issues in the Pre-Hearing Stipulation. Petitioners are held to their stipulation and, therefore, no findings regarding the State Comprehensive Plan are made here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Balsamo and Lantana Farm amendments are not in compliance. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2009.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, William R. Daniels, has been a farm labor contractor since 1949. Respondent retained the services of Edward J. Smith to assist him in fruit harvesting activities during the 1987 season. On February 18, 1988, Tommy L. Sumpter, a Compliance Officer employed by Petitioner, performed a compliance check on fruit harvesting activities located off 66th Avenue in Vero Beach, Florida. The compliance check by Sumpter revealed, that Edward J. Smith was supervising citrus workers on behalf of Respondent. Smith transported workers to the citrus field in Vero Beach in van owned by Respondent. Smith displayed his Federal Certificate of Registration which was valid through December 1988. Smith displayed his State Certificate which expired in December 1987. A confirmation check of Smith's Florida Certificate of Registration reveals that his certificate, in fact, expired on December 31, 1987. Smith registered at the Petitioner's Fort Pierce Job Service Office on February 23, 1988. Mr. Smith was cited for failing to register as required by section 450.30, Florida Statutes. Respondent submitted a verification of employment form which indicates that Smith was employed by him on October 15, 1987, and was paid $75.00 minus social security contributions, per truck load of citrus harvested by Smith's workers. By letter dated May 3, 1988, Respondent was issued the subject Administrative Complaint and notified that a civil money penalty was being assessed against him in the amount of $500.00 on the basis that he contracted for the employment of farm workers with a farm labor contractor before that contractor displayed a current certificate of registration issued by Petitioner. When Respondent retained the services of Smith, as a farm labor contractor, Smith's Florida Certificate of Registration was expired and he therefore could not have displayed a current certificate of registration to Respondent before he was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing a $500.00 civil penalty against Respondent payable within thirty days of the issuance of its final order, for contracting for the employment of farmworkers with a farm labor contractor before the farm labor contractor displayed to him a current certificate of registration issued by Petitioner. DONE and ORDERED this 19th day of January, 1989, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1989. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 William R. Daniel 227 Sterrett Circle Port St. Lucie, Florida 33395 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
Findings Of Fact Purchase of the Subject Property. The property at issue in this proceeding consists of approximately fifty-two acres (hereinafter referred to as the "Subject Property"). The Subject Property was acquired by Charles L. Parham in 1988 from Forest Hills, Inc. The Subject Property is located in a rural, undeveloped portion of southern Clay County (hereinafter referred to as the "County"). The Subject Property was part of a larger tract of undeveloped, real property known as "Forest Hills." The southwestern corner of Forest Hills is bounded by State Road 100. At the time the Subject Property was purchased it was zoned Agriculture. This classification allowed use of the Subject Property for single-family residential development at a density of one unit per acre. The Subject Property was purchased by the Applicants for development as single-family sites which they intended to sell or rent and to use for their own residential purposes. Access to the Subject Property was obtained through easements (Forest Hills Road and Lone Pine Trail) from State Road 100. It is approximately one and three-quarters of a mile from State Road 100 to the Subject Property. At the time of purchase of the Subject Property by Mr. Parham, Mr. Parham was provided with a certified Boundary Survey map by Forest Hills, Inc. The Boundary Survey was certified by a land surveyor and was dated November 2, 1978. The Boundary Survey provided to Mr. Parham represented the Subject Property as consisting of forty-four tracts of approximately one acre each and four lots of approximately two acres each. Neither the Subject Property nor Forest Hills has ever been platted. That is, there is no plat of record in the Official Records of Clay County, Florida. The Applicants made the erroneous assumption that the Subject Property was platted. They made this assumption because of the Boundary Survey they were provided by Forest Hills, Inc., which depicted the division of the Subject Property into lots. The Applicants also believed that the Subject Property was platted because no one at County offices where they showed the Boundary Map told them differently. The evidence failed to prove, however, that any employee of the County told them that the Subject Property was in fact platted. The evidence also failed to prove that the County was responsible for the assumption of the Parhams that the Subject Property was platted. Development Activities on the Subject Property. The Applicants cleared and graded roads through the easements to the Subject Property. Applicants also maintained two other roads located in Forest Hills: Cactus Hill Road and Lone Pine Trail. The Applicants also cleared and graded two interior roads which dissect Forest Hills. Applicants named the interior roads "Viking Street" and "Valhalla Street". The clearing and grading of roads was performed by Applicants in order to gain access to the Subject Property for themselves and potential renters. The Applicants also cleared part of the Subject Property for their own use. Mr. Parham purchased a bulldozer prior to the purchase of the Subject Property. The bulldozer was purchased for use in developing the Subject Property for use by the Applicants as a residence, for use in developing the Subject Property for rental and for use in Mr. Parham's business. All labor in developing the roads to and on the Subject Property has been provided by Applicants. Expenses for maintenance, repair and use of the bulldozer were incurred by Applicants. Applicants purchased fill dirt and clay which was used in clearing and grading access and interior roads. Prior to the enactment of the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), Applicants sold two two-acre tracts to Inger Robertson and to Julian Wood. Although the deeds on the sale of these lots mentioned the tract numbers, they also described the property sold by metes and bounds. The property would not have been described in this manner if the property were part of a platted subdivision. Applicants were left with forty- eight tracts. Inger Robertson applied for and received a mobile home permit for her two-acre parcel in 1990. Applicants also applied for and received mobile home permits for two one-acre tracts. One mobile home was used as their residence. The three mobile home permits issued for part of the Subject Property were issued prior to enactment of the Plan. They were also issued consistent with then existing law allowing single family units on one acre parcels. Petitioners' Alleged Detrimental Reliance. At the time the Applicants obtained their two permits, the Boundary Survey showing the lot division of the Subject Property was shown to County staff and the Applicants' plans with regard to development of the Subject Property were disclosed. At the time of the acquisition of the permits from the County, the Applicants' intended use of, and development plans for, the Subject Property were consistent with County laws. No approval or other permits were required by County law in order for the Applicants to utilize and develope the Subject Property in the manner they intended. They were only required to comply with existing zoning requirements, which restricted residential use of property to one residence per acre. This the Applicants did with regard to their residence and two other tracts. They failed to obtain permits, however, for the other tracts on the Subject Property. The evidence failed to prove that the Applicants' were informed by the County that their proposed use and development of the Subject Property was "approved" or otherwise "authorized." The Applicants have not asserted that the County took any affirmative action which led them to believe that their planned development of the Subject Property was "approved". Instead, the Applicants have asserted that the County was under an obligation to tell them that the Subject Property was not, in fact, platted, and they were required to take certain actions to insure that they could develop the Subject Property as planned. The evidence failed to prove that the County was under any such obligation. The evidence also failed to prove that the Applicants asked County staff what steps they were required to take in order to insure the immediate development of the Subject Property. In 1988, the Applicants informed the County of the naming of the two roads created on the Subject Property and were given street addresses for each of the tracts identified on the Boundary Survey. The Boundary Survey was left with County staff to make a copy of for the County's records. Each of the tracts was identified for the County's 911 emergency telephone service. The assignment of names to the interior streets and street numbers to the lots was consistent with then existing law. These County actions are not the type of actions which would justify a conclusion that density limitations with regard to the Subject Property would not change. Rights That Allegedly Will Be Destroyed. On January 23, 1992, the County's Board of County Commissioners adopted the Plan. Included in the Plan is a Future Land Use Element, including Future Land Use Maps (hereinafter referred to as the "FLUM"). The Subject Property (and all of Forest Hills) is located in an area classified on the FLUM for "Agriculture/Residential Land Use". This designation allows the use of the Subject Property for single-family residential development. Density, however, is limited to one unit per ten acres. As a result of the Plan and the designated land use classification of the Subject Property, the Subject Property may not be developed as one-acre single-family residences. The result of this restricted land use, the number of individual, developable lots on the Subject Property has been reduced. This reduction in developable lots adversely impacts financing of the Subject Property. The Applicants learned of the adoption of the Plan and its impact on the Subject Property in November of 1992 when they attempted to obtain additional permits for the Subject Property.
Findings Of Fact On September 24, 1982, Respondents, James A. Joss, Steven M. Mishkin and Norma Trento, together with Thomas Moskowitz, formed Highland Ranch Acres, Inc. (Highland Ranch), a Florida corporation, for the purpose of acquiring, subdividing and selling certain land in Section 35, Township 24 South, Range 25 East Lake County, Florida. These individuals were the sole principals and stockholders of Highland Ranch, and held, respectively, one-sixth, one-sixth, one-third and one-third of Highland Ranch's capital stock. All of the above- referenced individuals made an initial capital contribution to Highland Ranch, except Joss, who donated his time, knowledge and expertise in land sales. The land in question, acquired from W. D. Land Company consisted of approximately 50 acres, which Highland Ranch "subdivided" into 40 parcels of 1- 1/4 acres each, and consecutively numbered 65 through 104. Highland Ranch marketed the parcels to residents and nonresidents of the State of Florida by telephone solicitation, and a follow-up brochure. On March 3, 1983, the same principals formed Citrus Grove Acres, Inc. (Citrus Grove), a Florida corporation, for the same purposes they had formed Highland Ranch. Their respective ownership of the capital stock of Citrus Grove was the same as it had been in Highland Ranch. Citrus Grove acquired approximately 53 acres of land from W. D. Land Company in the same section, township and range of Lake County, Florida, as those lands acquired by Highland Ranch. Citrus Grove "subdivided" these lands into 42 parcels of 1-1/4 acres each, and consecutively numbered them 105 through 146, and marketed them in the same manner the lands owned by Highland Ranch had been sold. On June 13, 1983, the same principals formed Central Florida Highlands, Inc. (Central Florida), a Florida corporation, for the same purposes they had formed Highland Ranch and Citrus Grove. Their respective ownership of the capital stock of Central Florida was the same as it had been in Highland Ranch and Citrus Grove. Central Florida acquired approximately 15 acres of land from W. D. Land Company in the same section, township and range of Lake County, Florida, as those lands acquired by Highland Ranch and Citrus Grove. Central Florida subdivided these lands into 12 parcels of 1-1/4 acres each, and consecutively numbered them 147 through 158, and marketed them in the same manner the lands owned by Highland Ranch and Citrus Grove had been sold. Highland Ranch, Citrus Grove and Central Florida had the same principals, who performed the same basic duties. Joss, assisted by Mishkin, was responsible for the conception and operation of the business of the three corporations. Joss, as president, executed the purchase and sale agreements on behalf of Highland Ranch; Mishkin, as president, executed the purchase and sales agreements on behalf of Central Florida; and Trento, as president, executed the purchase and sales agreements on behalf of Citrus Grove. The purchase and sale agreements, and the brochures mailed to the telephone prospects, except for the corporate name, were identical in each instance. The photographs in the brochures which purported to depict the lands being offered, were identical. None of the photographs depicted the subject lands but rather were of lands Respondent Joss had marketed 15 years previously through Groveland Ranch Acres, Inc. All of the lands in question were purchased from the same seller, were located in the same section, township and range of Lake County, Florida, were subdivided into 1-1/4 acre lots which were consecutively numbered 65 through 158. The lands were located in the Green Swamp Area of Critical State Concern, were zoned agricultural and required a minimum of five acres to be eligible for a building permit, were not platted with the county, and contained no avenues of ingress and egress. Respondents were advised by their attorney, Michael J. Moskowitz, that Chapter 498, Fla. Stat., required registration if they proposed to offer more than 50 parcels to more than 45 persons. He further advised them that if the subsequent corporation(s) had the same principals and other indicia of a common promotional plan that their activities might be deemed a common promotional plan, subjecting them to potential liabilities. Respondent Joss concedes that the sole reason for forming Citrus Grove and Central Florida, and taking title in their names, instead of simply purchasing the additional lands in the name of Highland Ranch, the existing corporation, was to avoid the registration requirements of Chapter 498, Fla. Stat. Highland Ranch, Citrus Grove, and Centra1 Florida did not individually convey more than 50 parcels to more than 45 purchasers. Collectively however, they did convey more than 50 parcels to more than 45 purchasers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department), enter a Final Order finding Respondents, James A. Joss, Norma Trento, Steve Mishkin, Citrus Grove Acres, Inc., and Highland Ranch Acres, Inc., guilty of violating the provisions of Sections 498.023(1) and (2), Fla. Stat., and ordering that Respondents shall not offer or dispose of, or participate in the offer or disposition of any interest in "subdivided lands," as defined by Section 498.005(17), Fla. Stat., unless the subdivided lands are registered with the Department. Within thirty (30) days of the date of the Final Order, Respondents shall offer all purchasers of land from Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highlands, Inc., an opportunity to rescind their agreement, and to receive a refund of all principal and interest paid. The term "purchaser" as used herein shall mean any person who made any payment to Respondents for lands offered by Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highlands, Inc., whether or not such person is currently making payments. The refund offer shall be in writing, and in a form approved by the Department. After notifying purchasers of the refund offer, Respondents shall determine the total amount of refund liability, based upon purchaser(s) who elect to rescind their agreement, and notify the Department within sixty (60) days of the date of the Final Order of the name(s) of the purchaser(s) electing to rescind their agreement and the amount of refund liability for each such purchaser. Respondents shall establish a trust or escrow account in a financial institution located within the State of Florida to assure the payment of refunds to those purchasers who elect to rescind, and to assure the conveyance of clear and marketable title to those purchasers who do not elect to rescind, transactions. Respondents shall appoint a trustee or escrow agent acceptable to the Department, who shall have such powers as are necessary to fulfill the purpose of his trust. Respondents shall collect and deposit any and all monies paid by all purchasers of lands from Highland Ranch Acres, Inc., Citrus Grove Acres, Inc., and Central Florida Highland, Inc., into the trust or escrow account established pursuant to paragraph (4). Respondents shall have no right, title or interest in or to the aforesaid monies until such time as those purchasers who have elected to rescind have been paid in full, clear and marketable title has been conveyed to those purchasers who have elected not to rescind, the trustee's or escrow agent's fees, if any, have been paid, and the civil penalties hereinafter imposed have been paid. Respondents shall pay the following civil penalties to the Department, within thirty (30) days from the date of the Final Order: Norma Trento $10,000.00 Steve Mishkin $20,000.00 James Joss $20,000.00 Highland Ranch Acres, Inc. $20,000.00 Citrus Grove Acres, Inc. $20,000 00 DONE and ENTERED this 30th day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of May, 1985. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Scott T. Eber, Esquire 3550 Biscayne Boulevard Suite 504 Miami, Florida 33137 E. James Kearney, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: Petitioner, Charles W. Ward, Jr., is a co-owner, with other members of his family, of a cattle ranch in south Hendry County known as Ward Farms. Respondent, Maddox Brothers Produce, Inc., is a licensed agriculture dealer engaged in the business of brokering agriculture products in the State of Florida. As an agriculture dealer, respondent is subject to the regulatory jurisdiction of the Department of Agriculture and Consumer Services (Department). One such requirement of the Department is that all dealers post a surety bond with the Department's Division of Licensing and Bond. To this end, respondent has posted a $50,000 surety bond with Fireman's Fund Insurance Company as the surety. In addition to raising livestock, petitioner also grows watermelons on his property. Pursuant to an agreement by the parties, between April 16 and May 15, 1990, respondent harvested and then transported petitioner's watermelons to other destinations outside the state. The parties have stipulated that respondent still owes petitioner $53,980.92 as payment for the watermelons. Respondent has agreed to pay petitioner the above sum of money on or before February 15, 1991, or within fifteen days after the agency's order becomes final, whichever is later. Otherwise, payment shall be made from respondent's bond posted by the surety, Fireman's Fund Insurance Company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent, a licensed agriculture dealer, is indebted to petitioner in the amount of $53,980.92, and that such debt be satisfied in accordance with the time limitations set forth in this recommended order. Otherwise, Fireman's Fund Insurance Company shall be obligated to pay over to the Department the full amount of the bond, or $50,000. DONE and ENTERED this 24th day of January, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1991. COPIES FURNISHED: Charles W. Ward, Jr. Star Route, Box 72 LaBelle, Florida 33440 Patricia Maddox Harper 4253 Kingston Pike Knoxville, Tennessee 37919 Barbara J. Kennedy, Esquire Fireman's Fund Insurance Company Post Office Box 193136 San Francisco, California 94119-3136 Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire General Counsel Department of Agriculture 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Chief Bureau of Licensing & Bond 508 Mayo Building Tallahassee, Florida 32399-0800
