The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
Findings Of Fact On May 25, 1979 NFRH requested a binding letter of determination of a Development of Regional Impact status for a proposed 97-bed addition to the hospital at Gainesville, Florida (Exhibit 1). In this request NFRH suggested that the 97-bed addition was exempted by Section 380.06(15), Florida Statutes, from the other provisions of Section 380.06 and included evidence to show that NFRH was constructed prior to 1973 and had thereby obtained a vested status. Petitioner sought to intervene in that proceeding and requested a formal hearing before the BLID issued. This was denied by Respondent. In response to NFRH request for this binding letter of interpretation, Respondent, on 22 June 1979, issued the letter in the format of a final order as prescribed by Section 120.59, Florida Statutes, containing findings of fact, conclusions of law and an order that the proposed addition of 97 beds to NFRH at Gainesville did not have to comply with the review requirements of Section 380.06, Florida Statutes, applicable to developments of regional impact. Petitioner has appealed the issuance of this final order to the district court of appeal. This action to challenge the BLID as a rule was then filed.
The Issue The issue presented for consideration herein concerns the standing of Petitioners to challenge the development order entered by the City of Alachua, Florida, granting DPI approval to Turkey Creek, Inc. That order dates from June 15, 1982. In particular, the Motion to Dismiss filed by Respondent Turkey Creek asserts that Petitioners are not members of the class of individuals delineated in Subsection 380.07(2), Florida Statutes, who would have standing to appeal the development order; in that Petitioners are neither "owners" or within other classifications of individuals who might file an action before the Florida Land and Water Adjudicatory Commission, which action is in opposition to the grant of the development order. RECORD Although a transcription was not made of the motion hearing, the following items which are attached to this Recommended Order constitute the factual basis for this decision. Attachment "A" is the Notice of Appeal of development order; Attachment "B" is the petition for review of development order with its attendant exhibits; Attachment "C" is the letter of referral from the Secretary to the Florida Land and Water Adjudicatory Commission to the Director of the Division of Administrative Hearings; Attachment "D" is the answer and affirmative defenses to the petition filed by Turkey Creek; Attachment "E" is the motion to dismiss filed by Turkey Creek; Attachment "F" is the notice of hearing related to the motion to dismiss; and Attachment "G" is the supplemental authority offered by Turkey Creek. For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the Petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.
Findings Of Fact On January 4, 1982, the Turkey Creek Development of Regional Impact Application for Development Approval was filed with the City of Alachua, Florida, City Commission and North Central Florida Regional Planning Council in accordance with Chapter 380, Florida Statutes. It was filed by Turkey Creek, Inc., as applicant. Turkey Creek, Inc. is wholly-owned by Norwood W. Hope, N. Forest Hope and A. Brice Hope. Turkey Creek proposes to develop 5,300 residential dwelling units on 976+- acres, which constitutes a residential development of regional impact according to Chapter 380, Florida Statutes, and Chapter 22F-2.10, Florida Administrative Code, involving real property located in the City of Alachua, Alachua County, Florida, as included in the property description found as an exhibit to the petition document which is Attachment "B" to this Recommended Order. Prior to June 15, 1982, the City of Alachua had previously duly zoned or did simultaneously zone the said 976+-acres PUD and commercial to permit the development as specified in the said application. June 15, 1982, is the date when the City of Alachua adopted the development order for the Turkey Creek Development of Regional Impact. Following the action by the City of Alachua, the Petitioners in this cause, in the person of counsel, filed a notice of appeal of the development order. This appeal was made on June 28, 1982, and on that same date, the petition for review of that development order was filed with the State of Florida, Land and Water Adjudicatory Commission. On August 4, 1982, the matter was transmitted to the division of administrative Hearings for formal hearing by action of the Office of the Office of the Secretary of the Florida Land and Water Adjudicatory Commission. The case was subsequently assigned to this Hearing Officer and a motion hearing was conducted to consider a dismissal of this action based upon Respondent Turkey Creek's allegation that the Petitioners lack standing. The motion hearing was conducted on September 2, 1982. Petitioners are owners of real property included within the Turkey Creek development of regional impact and their property is adjacent or in close proximity to properties which were the subject of the City's zoning decision made in conjunction with approval of the development order.
Findings Of Fact On August 20, 1975, the Appellant, MGIC - Janis Properties, Inc., developer, filed an Application for Development Approval for Development of Regional Impact (hereinafter referred to as the "Application") with the Withlacoochee Regional Planning Council and the North Central Florida Regional Planning Council. A copy of that application as amended was attached as Exhibit "B" to the Appellants' petition and is made a part of the record herein. The Exhibit "B" has two parts, the initial part consisting of the Development of Regional Impact, Planning Concepts and Zoning Requests and the latter part consisting of addendum one. The submission of the application to the two Regional Planning Councils was necessitated by the fact that the property covered by the application lies in both Alachua and Marion Counties, which counties are within the jurisdictional areas of the North Central Regional Planning Council and the Withlacoochee Regional Planning Council, respectively. Following the preliminary review by the Withlacoochee Planning Council, the Council, by letter of September 25, 1975, notified Marion County, by and through Mr. John Hastings, Zoning Director, Marion County Zoning and Building Department, that the Planning Council was ready to proceed with the formal review of the application and further advising that public hearing dates should be scheduled to comply with the requirements of the Florida Environmental Land and Water Management Act of 1972 (Chapter 380, Florida Statutes). A copy of that letter was attached as Exhibit "C" to Appellants' petition and is made a part of the record herein. On October 7, 1975, the Board of County Commissioners of Alachua County (hereinafter referred to as "Alachua County") scheduled a public hearing on the application before the County Commission to be held at 4:30 P.M. on December 9, 1975, in the Alachua County Courthouse, Gainesville, Florida. The Appellants were given notice of the public hearing by a copy of the letter of October 8, 1975, from Howard Weston, County Administrator to Alachua County, a copy of that letter appearing as Exhibit "D" to the Appellants' petition and made a part of the record herein. On October 14, 1975, the Appellee scheduled public hearings on the application before the Marion County Planning and Zoning Commission held at 4:00 P.M. on January 5, 1976, at the Marion County Courthouse, Ocala, Florida, and before the Board of County Commissioners at 9:00 A.M. on January 21, 1976, at the Marion County Courthouse, Ocala, Florida. Notification to the Appellants of these public hearings was given by letter of October 15, 1975 from Ronald H. Miller, Marion County Planner, a copy of that letter being Exhibit "E" to the Appellants' petition and made a part of the record herein. On November 6, 1975, the North Central Florida Regional Planning Council prepared, adopted and sent to Alachua County their recommendations regarding the application, which recommendations recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "F" to the Appellants' petition and is made a part of the record herein. On November 13, 1975, the Withlacoochee Regional Planning Council, meeting in full session, prepared, adopted and sent to Marion County, their recommendations regarding the application, which recommendation recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "G" to the Appellants' petition and is made a part of the record herein. On December 9, 1975 Alachua County held a public hearing on the Appellants' application and that public hearing was continued on January 6, 1976. On December 24, 1975 the Marion County Planning Department prepared and sent to Marion County their considerations and recommendations regarding the application, which recommendations recommended approval of the Appellants' proposed project subject to certain conditions. The recommendations of the Marion County Planning Department were based in part on comments provided by the Marion County Engineer and the Environmental Health Division of the Marion County Health Department. A copy of these considerations and recommendations was attached as Exhibit "H" to the Appellants' petition and is made apart of the record herein. On January 5, 1976, the Marion County Planning and Zoning Commission held a public Hearing on the Appellants' application, which public hearing was continued on January 12, 1976. At the conclusion of the public hearing, after having heard and considered all interested parties and pertinent facts and matters with regard to the Appellants' application and after having considered the recommendations of the Marion County Planning Department, the Withlacoochee Regional Planning Council and all testimony and information presented at the public hearing, the Marion County Planning and Zoning Commission recommended approval of Appellants' application subject to the conditions previously recommended by the Withlacoochee Planning Council and the Marion County Planning Department, and subject to certain other conditions. Copies of the minutes of the special meeting of the Marion County Planning and Zoning Commission meeting of January 5, 1976 and January 12, 1976 were attached as Exhibit "I" and Exhibit "J" respectively to the Appellants' petition and are made a part of the record herein. On January 6, 1976, Mr. Al Lewis, Director of the Department of Planning, Alachua County, prepared and sent to Alachua County, by and through Mr. Howard Weston, County Administrator, his recommendation regarding the application, which recommendation recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "K" to the Appellants' petition and is made a part of the record herein. On that same date, Alachua County, after having heard and considered all interested parties and pertinent facts and matters with regard to Appellants' application, and after having considered the recommendations of the Alachua County Department of Planning, the North Central Florida Regional Planning Council and all testimony and information presented at the public hearing, issued a development order approving Appellants' application subject to certain conditions. A copy of said development order was attached as Exhibit "L" to the Appellants' petition and is made a part of the record herein. On January 21, 1976, the Appellee, Marion County, held a public hearing on the Appellants' application, which public hearing was continued on February 10, 1976 and February 18, 1976 and the record of those hearings have been transcribed and made a part of the record herein. After the January 21, 1976 meeting before the Marion County Board of County Commissioners in which discussion was entered into on the recommendations arising from the Withlacoochee Planning Council meeting on November 13, 1975 and the recommendations of the Marion County Planning Department of December 24, 1975, the Appellants in the person of their attorney, Stephen A. Scott, and the architect for the Appellants, David Reaves, submitted two letters dated February 4, 1976, which set forth the position of the Appellants on the aforementioned recommendations of the Planning Council and the Marion County Planning Department. Copies of these letters of February 4, 1976 have been filed with the State of Florida, Division of Administrative Hearings, and are made a part of the record herein. On February 13, 1976 the Marion County Plat Committee prepared and sent to Marion County suggested wording changes for previously recommended conditions to the approval of Appellants' application. A copy of these suggested working changes is attached hereto as Exhibit "M" to the Appellants' petition and made a part of the record herein. In response to the February 13, 1976 Marion County Plat Committee suggested wording changes for previously recommended conditions and/or modifications applicable to the application dated February 13, 1976, the Appellants' attorney, Stephen A. Scott filed a letter of February 18, 1976. This letter is filed in the case by permission of the Hearing Officer and is made a part of the record herein. At the conclusion of the public hearing on February 18, 1976, Marion County adopted a resolution denying approval of Appellants' application. A copy of said resolution was attached as Exhibit "A" to Appellants' petition and is made a part of the record herein. In the course of the DRI process, not all aspects of the application, Exhibit "B", were disputed by the various planning agencies, the Appellee and the Intervenor. Moreover, Alachua County, Florida has given its approval and any reference to action before that governmental body is for the limited purposes of describing the Marion County, Florida application. Therefore, the discussion of the facts will be in terms of those facts which were disputed and not those facts in support of the application which are not in dispute. The points of contention between the parties are primarily discussed in the Exhibit "B", Development of Regional Impact, Planning Concepts and Zoning Requests and its addendum; Exhibit "G", the recommendations of the Withlacoochee Regional Planning Council of November 13, 1975; Exhibit "H", the Marion County Planning Department, Statement of considerations and recommendation; Exhibit "J", the minutes of the Marion County Planning and Zoning Department meeting, January 12, 1976; the letters of February 4, 1976, from the representatives of the Appellant, David Reaves and the Appellants' attorney Stephen A. Scott; Exhibit "M", the Marion County Plat Committee suggested wording changes for previously recommended conditions and/or modifications, dated February 13, 1976; the discussion of the aforementioned document in the course of the public hearings of January 21, 1976, February 10, 1976 and February 18, 1976 and the Exhibit "A", Resolution and Development Order of the Marion County Board of County Commissioners. The proposed development is a horse ownership oriented community located 12 miles south of Gainesville, Florida and 18 miles north of Ocala, Florida and it encompasses an area of approximately 5 square miles (3200 acres). The statement of market study is found on page 87 of Exhibit "B". This project is located on the border of Alachua and Marion Counties, Florida. One sixth of this area lies within Alachua County and the remaining area in Marion County. The highway system as shown in map "J" of Exhibit "B". The project has five developmental phases as described in the Exhibit "B" and within those developmental phases are planned construction of midrise, townhouse, patiohouse, and single family dwellings for a total population build out in all phases of approximately 8,234 residents. This project also anticipates lodges to be built in the various phases to accommodate additional average yearly population of 1,200 persons. Its estimated that visitors will total 834 at the completion of all phases, for a total of 10,000 plus persons within the development at the end of the final phase. Further discussion of these statistics may be found on page 15 of Exhibit "B". At present the area is primarily agricultural and is zoned as such. Within the immediate vicinity of the project are the towns of Micanopy and Mcintosh and the community of Evinston. These communities together with the population immediately outside these towns would total approximately 2,500 people. Consequently, the area can best be described as rural, as opposed to the suburban nature of the proposed development. The difference in character in the locale as it presently exists and as is proposed by the development plan is the principal point of contention between the appellants on the one side, and the Appellee and Intervenor on the other. It is the suggestion of the Appellants that the project can be developed and carry with it a suburban nature without being inconsistent with or destroying the rural character of the surrounding towns and unincorporated areas. On the other hand the Appellee and Intervenor suggest that to allow this project would destroy the rural lifestyle of the area. The transcript of the proceedings before the Board of County Commissioners, Marion County, Florida held on January 21, 1976, February 10, 1976, and February 18, 1976 developes in detail the opposing points of view on the issue of the compatibility of the development with the present surroundings. Considering the distance between the proposed development and the larger communities in the areas to wit, Gainesville and Ocala, the rural nature of the land at present and the fact that this development would be potentially the third largest community in the Alachua County and Marion County area, the development does not appear to be compatible with its surroundings. The Appellant has proposed a private roads community, and this concept is contrary to the express policy of Marion County, Florida. Prohibition to this form of private roads is set forth in subsection 2A.13 of the Public Works Manual, Marion County, Florida. There is concern by the Appellee on the question of access of the public through the private road system, in that it would create a necessity the public to go around the entire development. However, at present there are public roads serving the area and it is not contemplated that future public roads will go through the project. The Appellee is also concerned with maintenance of speed limits on private property and resubdivision of the parcel of land in the future where private roads have been allowed. The restriction against private roads has been waived in Marion County in the past and could be waived in this instance if a private road network or a combination of private and public road network were built in the development. The Appellee would require that the network be built to Marion County Specifications, and the Appellant agrees. There are proposed to be built two bridges. One bridge across Interstate-75 incident to the last phase of the project and other bridge across SE-10, County Line Road. The Appellee would require conceptual approval of these matters by the permitting agencies going into the project, and the bridges would be constructed at the developers' expense prior to the development phase effected by the bridges. Other roads affected by the project are State Road 320 and Hickman Road which are in the southern part of the project. If these roads were utilized, access for emergency, police, fire and other needs of similar nature would have to be worked out. In connection with the question of access, the developer had initially proposed that the project be a gated community with private security patrols within the community. In view of the considerable debate in the course of the proceedings about this technique of a gated community and private security patrol, the developer has indicated a willingness to forgo the utilization of perimeter walls or fencing and private security patrols or entrance guards. As mentioned before, the land selected for development is presently zoned agricultural and to achieve the purposes of the project the zoning would have to be changed to a type of residential zoning. As a part of the zoning consideration, the Appellee has asked that the Appellant submit a master plan in conjunction with or as a part of the zoning change. The conditions of the master plan are as set forth in pages 6 - 9 of the December 24, 1975 report which is Exhibit "H". The Appellants' specific response to the question of the master plan as it relates to matters of zoning is found in the February 4, 1976 letter of attorney Stephen A. Scott. In summary, the developer is concerned with the wording of some of the provisions of the December 24, 1975 report, Exhibit "H", and with the repetitious aspects of the master plan, in view of the fact that the questions have been addressed through the DRI. The letter also indicates a reluctance to divulge detailed financial information about the developer. There are certain aspects about the development proposal which contemplate the sponsorship by a homeowners association. Among these aspects are security patrol, fire protection, sewage treatment, recreational facilities, maintenance of recreational facilities, water treatment and service, and eventual health care. These items are in addition to the construction and maintenance of private roads, to include storm drainage. The Appellee has requested that the developer in detail the intricacies of the homeowners association and the method by which it may accomplish the aforementioned goals. Again this discussion is found in pages 6 - 9 of the Exhibit "H". The related matters of health care in the initial 4 stages and long term treatment at the point of final build out must be accomplished by coordination with emergency transportation to the hospitals in the Gainesville and Ocala area. The health care facilities are shown on map "I" to the Exhibit "B". At some point in time, it is the feeling of the Appellants that a fulltime physician will establish a clinic due to the number of persons in the development community, without the need for any subsidy by the developer. Medical evacuation seems to be suggested as a function of the homeowners association, in the latter phases. The appellant and appellee acknowledged that the acreage for a landfill site for solid waste disposal would be off the grounds of the project. This would need to be within a five mile travelling of distance to satisfy the Appellee and to meet the requirements of the State of Florida, Department of Environmental Regulation. The acreage necessary would be 35 acres. The resolution of the question of location was not resolved between the parties; however, it seems that some plan by which the developer purchased a site either by having that site selected by the Appellee and then purchasing the site or paying a fixed sum of money to the County for such a purpose is indicated. The unresolved issues pertain to the purchase of the equipment necessary and the arrangement for the maintenance of the site location. In the past in Marion County, this type of landfill has been maintained as a part of commercial contracts for collection and disposal of solid waste1 and nothing suggests that this could not be achieved in this instance. The soil description and analysis is found beginning on page 32 of Exhibit "B" and within maps E, F, and G of Exhibit "B". An examination of the report shows that much of the soil is Blichton-Kendrick Association which has slow permeability. Other places are Bayboro-Placid Association which is low wet lands that have interspersed with them really poorly drained deep sands. Within this overall network it is intended that a sewage plant be placed, which treats the sewage and utilizes the activated sludge method with some form of additional treatment for spray irrigation of the remaining effluent. The site location and details of the treatment plan will be approved by the State of Florida, Department of Environmental Regulation. There are 243 ranches and ranchettes which are intended for septic tank utilization and individual wells for water supply. Discussion of these matters is found on pages 93 through 96 of Exhibit "B". Storm water disposal, in consideration of the 100 year flood elevations are found on pages 97 through 101, and map "G" of Exhibit "B". Some special problems that have occurred in the past pertain to the question of storm water disposal. The Old Field Pond area has had flooding. Flooding has occurred across SE-10 over U.S. 441 and into the adjacent land owner's property. Moreover, the Fire Tower Road which is in the area of SE-10 has flooded and one requirement would be consideration of those property owners who utilize SE-10 as an alternate route to the so called Fire Tower Road in times of flooding. As shown in the map on page 34 of Exhibit "B" there are a number of recharge wells in the active Old Field Pond area. It is the feeling of the Appellee through its staff reports, i.e., the Withlacoochee Planning Council report of November 13, 1975 and the agreement of other staff agencies that these recharge wells should be plugged to avoid the problem of liquid waste going directly back into the Floridian Aquifer, which flows under the property. The developer feels that this should only be done after testing. Discussion was also entered into about the coordination of sewage treatment and water supply needs with the surrounding communities of Mcintosh and Micanopy. The provision for electric power is discussed by letters from the Florida Power Corporation and Clay Electric Cooperative, Inc. found on pages 112 and 113 of Exhibit "B". There is concern that due to prior power shortages in the immediate service area, that further service obligations would diminish the quality of the electric service. This indication runs contrary to the comments within the letters of the two utility companies and it has been suggested that greatly increased needs would promote more efficient electric service. This latter argument, does not address the conditions in the early phases of development. A matter of much discussion was the need for schools, fire protection and police protection. If the private security and fire service concept is rejected, there is no indication whether these needs could be met by the Appellee, although tax revenues would be generated to assist in responding to those needs. On the former question of schools, there has been preliminary contact by the developers agent in considering regional schools, since the project lies within two counties, but that contact has been very limited. The question of site location for a school to service this community and surrounding communities and the sharing of the costs of such implementation is also in the preliminary stages. Therefore, matters concerning the school system are yet to be resolved. The project contemplates a number of recreational areas, lodges and stores. The lodges and stores would be open to the public, but the recreational facilities are primarily designed for the residents. The discussion of the recreational areas within the project brings to light the question of the possible service community which would grow out of the development. It has been estimated by the Appellant that 807 persons in terms of average annual construction employment will be needed for the five phases of the development. Discussion of these aspects of the project begins on page 82 of Exhibit "B". Based upon this projection, the possibility exists that some satellite community would form in the immediate vicinity of the project site, in view of the distances between the project site and the towns of Ocala and Gainesville. None of the surrounding communities, nor the developer have specifically addressed the deployment of the so called satellite community, in terms of housing, essential services and recreation. Another consideration which is in dispute is the archaeological significance of the project land and the necessary steps to preserve these archaeological finds. A discussion of the archaeology of this site is found on pages 59 through 80 of Exhibit "B". The dispute arises over the necessary steps to the preservation of the archaeologically significant sites, with the Appellee suggesting compliance with the recommendation of the archaeologist's report in Exhibit "B" and the Appellants desiring to make a site by site isolation of the significant archaeological finds and subsequent preservation of those sites at the point of development encounter. Another similar issue is game preservation. There is evidence that the Florida Panther has passed through the development area since tracks were found on the western part of the proposed development. In addition, the Florida Sandhill Crane and Wood Ibis have been sited at Tuscaeilla Lake, on the wet prairie just south of that body of water at the northwest pond. Further discussion of these endangered species and other species of wildlife is found on pages 56 and 57 of the Exhibit "B". A statement by a witness of the Florida Game and Fresh Water Fish Commission was to the effect that the Florida Panther will not stay in the area which is developed to the extent proposed herein. Finally, consideration was given to the question of the sequence of permitting within the five phases of the proposed project. The Appellee has expressed a desire to withhold local permits until federal and state permits were given, which would have an effect on how local permits would be granted. The Appellants are concerned that these local permits in the initial phases, not be held up while waiting for federal or state permits which would pertain to a latter phase. This is a particular concern in view of the fact that the stated five year build out of the project does not seem to be realistic and the actual build out will be between ten and twenty years from the point of any DRI permitting. The requirement for obtaining federal and state permits prior to the local permits at the commencement of each phase and obtaining a general statement of commitment by the federal and state systems in the later phases, was discussed as a solution in the bridge over Interstate-75 and would seem an appropriate solution to other issues similarly in dispute.
Recommendation It is recommended that the Application for Development Approval for a Development of Regional Impact filed with the Withlacoochee Regional Planning Council on August 20, 1975 for preliminary review be denied. DONE AND ENTERED this 29th day of October, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Scott, Esquire Post Office Box 1292 Gainesville, Florida 32602 MGIC - Janis Properties, Inc. 1550 Madruga Avenue Coral Gables, Florida 33146 Ernest Tew, as Trustee Suite B-1 901 Northwest Eighth Avenue Gainesville, Florida 32601 Mr. Jackson E. Sullivan Withlacoochee Regional Planning Council 3500 Northeast Silver Springs Boulevard Suite 4 Ocala, Florida 32670 R. Stephen Ryder, Esquire Marion County Attorney Board of County Commissioners of Marion County Post Office Box 81 Ocala, Florida 32670 Honorable Reubin O'D. Askew Governor State of Florida The Capitol Tallahassee, Florida 32304 Honorable Robert L. Shevin Attorney General The Capitol Tallahassee, Florida 32304 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32304 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32304 Honorable Bruce Smathers Secretary of State The Capitol Tallahassee, Florida 32304 Honorable Philip F. Ashler State Treasurer The Capitol Tallahassee, Florida 32304 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32304 Louis Hubener, Esquire 660 Apalachee Parkway Tallahassee, Florida 32304 Counsel for the Division of State Planning Florida Land and Water Adjudicatory Commission c/o Secretary of the Department of Administration 530 Carlton Building Tallahassee, Florida 32304 ATTENTION: David V. Kerns, Esquire Robert T. Roess, President Florida Investors Mortgage Corp Post Office Box 639 Gainesville, Florida 32601 Vice Chairman, Simonton-Tuscawilla Concerned Citizens
The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether the application of Thomas J. White Development Company for the establishment of a uniform community development district under Chapter 190, Florida Statutes, and Rule Chapter 42-1, Florida Administrative Code, should be granted.
Findings Of Fact The facilities and services that will be provided by the St. Lucie West Services District are the financing, constriction, ownership, operation, and maintenance of the surface water management and control system for the area, and necessary bridges and culverts. The land encompassed by the proposed development district is a development of regional impact. The final revised development order for the area was issued on February 27, 1989, by the City of Port St. Lucie. Exhibit 4. The land within the proposed district is composed of approximately 4,600 contiguous acres located in the city. The proposed district is bounded on the north and south by the city. The western and eastern boundaries are Interstate 95 and the Florida Turnpike, respectively. A map showing the location of the area to be serviced by the proposed district is found in Exhibit 2; a metes and bounds legal description of the proposed district is attached to the petition as Exhibit 1. The overall development to be serviced by the district will include a variety of single family and multifamily housing units, as well as commercial, industrial, and educational uses. A portion of the future land use map for the City of Port St. Lucie was received in evidence as Exhibit 3, and shows approved land uses for the St. Lucie West area. In the proceedings leading to the issuance of the development order, the city determined that the St. Lucie West development would be consistent with all applicable state, regional, and local comprehensive plans and policies. The proposed development of the district is consistent with the City of Port St. Lucie Comprehensive Plan: 1985, as amended. Exhibit 12. Ernest R. Dike, Jr. is the director of development of Thomas J. White Development Company. He is an expert engineer experienced in the planning, construction and management of large scale communities. Mr. Dike has substantial experience as a civil engineer, and holds an advanced academic degree in planning. He served as director of public works and as city engineer for the City of Port St. Lucie for the three years preceding his employment by White. As White's director of development over the last three and a half years, Mr. Dike assisted in the preparation of the petition; he also identified and explained the exhibits which were admitted into evidence. He assisted in crafting the development order for St. Lucie West which was adopted by the City of Port St. Lucie in February, 1987 and amended on February 27, 1989. Dike has been personally involved with the sales of land from White to other developers of property within the proposed district. All the owners of the real property to be included in the district have given their written consent to the establishment of the proposed district. Since the Thomas J. White Development Company purchased the approximately 4,600 acres which became St. Lucie West, Dike has directed the permitting and approval for all aspects of the project. In the design, White Development Company has accommodated the desires of St. Lucie County to obtain a spring training facility for a professional baseball team. White Development Company agreed to give the county 100 acres of land to build a training facility for the New York Mets. A predevelopment order for the stadium was obtained, which permitted the development of certain roads, a bridge over the Florida Turnpike, and an interchange with Interstate 95 which will all provide access to St. Lucie West These transportation facilities were completed without the use of any state or federal funds. None of these expenses will be born by the proposed district. The establishment of the district would not be inconsistent with any of the elements or provisions of the state comprehensive plan, the regional plan, or the local comprehensive plan. Creation of the district would be the best alternative available for providing water management and control facilities for the land encompassed by the proposed district. The South Florida Water Management District (SFWMD) and the City of Port St. Lucie have concluded that when fully developed, the land would discharge no additional water into the city's stormwater system as compared to the contribution of stormwater by the land made before it was developed by White. Mr. Dike also testified about the debt service required to amortize the debt on any benefit bonds issued by the proposed district, and the cost of operation and maintenance of the surface water control facilities to be constructed by the proposed district. Mr. Dike prepared a spread sheet entitled "Projected Statement of Cash Flow for the Years 1990-2000". (Exhibit 18). The estimated construction costs for water management facilities in the projection are reasonable. Based on White's plans for the district, and utilizing the assumptions for absorption of the residential and commercial space to be constructed, the benefit and maintenance taxes are projected to begin at $114 per taxable unit per year. These benefit and maintenance taxes will rise to no more than $170 per taxable unit per year in 1996. These projections are consistent with the testimony of Mr. Dike and of Dr. Henry Fishkind, an economist. All assumptions made in projecting future benefit taxes are reasonable. While these projections do not bind the district, which is not yet formed, and the district's electors could ultimately decide to assume additional responsibilities, the evidence shows that the benefit and maintenance taxes projected are adequate to pay the debt to be incurred by the proposed construction of surface water management facilities. Lester L. Solin, Jr., testified as an expert in land use planning. He was a planning consultant with the City of Port St. Lucie when the development of St. Lucie West by White Development Company was first under consideration, and worked with the city to formulate the overall development plan. St. Lucie West has been integrated into the future land use map for the City of Port St. Lucie Comprehensive Plan: 1985. Mr. Solin is also familiar with the state comprehensive plan. He has reviewed the application for development approval for the St. Lucie West development of regional impact. The proposed district would be consistent with the state comprehensive plan, Chapter 187 Florida Statutes. Mr. Solin is also familiar with the City of Port St. Lucie Comprehensive Plan: 1985 (Exhibit 12). The creation of the St. Lucie West Services District would not be inconsistent with any of the goals, objectives or policies in that plan. Peter L. Pimentel is the current executive director of the Northern Palm Beach County Water Control District (NPBWD). Mr. Pimentel testified as an expert in special district management, planning, staffing, reporting, and coordination with local governments. As the director of the Northern Palm Beach County Water Control District, he oversees a staff which works with other regulatory agencies on permitting, implementation, planning, construction and operation of water management systems. He coordinates construction with contractors, and engineers, and works with lawyers in carrying out the policies established by the district board of directors. The land encompassed by the NPBWD is approximately 200,000 acres. Mr. Pimentel has substantial experience, having worked as the executive director for two large independent special taxing districts, which are similar in structure and have similar powers as the community development district which White Development Company wishes to establish. Mr. Pimentel's testimony was especially persuasive due to his experience with water control entities. The proposed district is the best alternative available for financing, constructing, owning, operating and maintaining the surface water management and control facility for the area encompassed by the proposed district. It provides a more efficient use of resources, and provides the opportunity for new growth in the district to pay for its own surface water management, rather than imposing that cost on general government. The proposed district would not be incompatible with the capacity or uses of existing local and regional community services and facilities. The area to be served by the proposed district is amenable to separate special- district government. Henry H. Fishkind, Ph.D. testified as an expert economist about the economic consequences of establishing a community development district under Chapter 190, Florida Statutes, the economic consequences of financing the surface water management and control system through the use of tax exempt bonds, and the cost of operating and maintaining those structures by a community development district. Dr. Fishkind prepared the economic impact statement for the proposed district required by Section 120.54, Florida Statutes. The costs to the Florida Land and Water Adjudicatory Commission, and to state and local agencies in reviewing the petition are minimal. The costs to the City of Port St. Lucie and to St. Lucie County have been covered by the $15,000 filing fee which White paid to each of those governments. The cost to the City of Port St. Lucie once the district is operating would be negligible. The potential debt of the proposed district will not become general obligations or debts of the city or county governments. The cost of the surface water improvements will be paid by those who benefit from them. The economic impact statement is adequate, and meets the requirements of Section 124.54(2)(b), Florida Statutes. During the first six years, the proposed district would be controlled by Thomas J. White Development Company since White still would be the largest landowner. Tax exempt benefit bonds would be issued to construct the surface water management facilities. Both White and residents of the proposed district would share the burden of amortizing these bonds through benefit taxes. According to Dr. Fishkind, whose opinion is credited, from an economic perspective: The creation of the St. Lucie West District is not inconsistent with the state and local comprehensive plan; The land to be served by the proposed district is of sufficient size, is sufficiently compact and is sufficiently contiguous to be developed as a functional interrelated community; The proposed district is the best alternative for providing surface water management for the community, since other alternatives such as municiple service taking units or homeowners' associations are more expensive or more cumbersome; The area to be served by the proposed district is amenable to separate special-district government. All factors which are required to be considered in establishing a community development district under Section 190.005(1)(e), Florida Statutes, were analyzed by the witnesses presented by the Thomas White Development Company. Their testimony was persuasive, and the application meets all requirements of Chapter 190.
Conclusions Based on the record made, it is concluded: That all statements contained in the petition are true and correct; The creation of the proposed district is not inconsistent with any applicable element of the state comprehensive plan, or the City of Port St. Lucie Comprehensive Plan; The area in the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community; The district is the best alternative for delivering water management services to the area to be serviced by the district, and would be superior to the creation of a municipal service taxing unit, a homeowner's association, or to providing water management by the general county government of St. Lucie County; The community development services provided by the proposed district will not be incompatible with the capacity or uses of existing local and regional community development services and facilities; The area to be served by the proposed district is amenable to separate special district government. Accordingly it is recommended that the Florida Land and Water Adjudicatory Commission grant the petition of the Thomas J. White Development Company and adopt a rule pursuant to Section 190.005(f), Florida Statutes (1987), establishing the St. Lucie West Services District. DONE AND ENTERED this 5th day of September, 1989, in Tallahassee, Leon County, Florida. William R. Dorsey, 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 5th day of September, 1989 APPENDIX A Case No. 89-0072 Witnesses Earnest R. Dike, Jr., 590 NW Peacock Loop, Port St. Lucie, Florida. Lester L. Solin, Solin and Associates, 901 Douglas Avenue, Suite 207, Altamonte Springs, Florida. Peter Pimentel, 5725 Corporate Way, Suite 203, West Palm Beach Florida. Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300 Winter Park, Florida. APPENDIX B Case No. 89-0072 List of Documentary Evidence Exhibit 1. Petition for Rulemaking filed by Thomas J. White Development Company, Inc., including seven exhibits. Exhibit 2. Location Map for the proposed St. Lucie West Services District. Exhibit 3. Future Land Use Map for the area Exhibit 4. Resolution 89-R7 of the city council of Port St. Lucie, Florida, which is the development order for the St. Lucie West Development of Regional Impact. Exhibit 5. Transmittal letter for the Petition for the establishment of the Services District to the City of Port St. Lucie and filing fee, and transmittal letter for the St. Lucie West Development District to the St. Lucie County Board of County Commissioners, and filing fee. Exhibit 6. Transmittal letter for the Petition for the establishment of St. Lucie West Services District to the Florida Land and Water Adjudicatory Commission. Exhibit 7. Letter from the staff of the Florida Land and Water Adjudicatory Commission determining that the Petition appears to satisfy the requirements of Section 190.005, Florida Statutes, and Rule 42-1.009 Florida Administrative Code. Exhibit 8. Resolution 89-R6 from the City of Port St. Lucie, Florida supporting the petition of the Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 9. Resolution 89-41 of the Board of County Commissioners of St. Lucie County supporting the petition of Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 10. Proof of publication in the local newspapers and in the Florida Administrative Weekly of the Notice of the Hearing on the petition for the establishment of the community development district and notices to other interested persons. Exhibit 11. Copy of the State Comprehensive Plan Chapter 187, Florida Statutes (1987) Exhibit 12. Copy of the Comprehensive Plan: 1985 of the City of Port St. Lucie, Ordinance 85-102. Exhibit 13. Resume of Ernest R. Dike, Jr., P.E. APPENDIX B CONT. Case No. 89-0072 Exhibit 14. Permit granted to Thomas J. White Development Company, Inc. by the South Florida Water Management District for the construction and operation of a water management system. Exhibit 15. The prepared testimony Lester L. Solin, Jr. Exhibit 16. The resume of Peter L. Pimentel. Exhibit 17. The prepared testimony of Henry H. Fishkind, Ph.D. Exhibit 18. The additional prepared testimony of Mr. Dike including the computer generated spread sheet. COPIES FURNISHED: E. Lee Worsham, Esquire HONIGAMAN MILLER SCHWARTZ and COHN 1655 Palm Beach Lakes Boulevard Suite 600 West Palm Beach, Florida 33401 James C. Vaughn Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32399-0001 William Buezett The Governor, Legal and Legislative Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 Carla Stanford, Esquire Department of Community Affairs 2740 Centerville Drive Tallahassee, Florida 32399-2100 David McIntyre, Esquire County Attorney 2300 Virginia Avenue Fort Pierce, Florida 34982 Roger Orr, Esquire City Attorney 220 South Second Street Fort Pierce, Florida 33450 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning & Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
Findings Of Fact Parties Petitioner Henry A. Wenz (Wenz) is a resident of Volusia County and submitted oral or written objections during the review and adoption proceedings. Petitioners Hart Land & Cattle Co., Inc., R. L. Hart, and Clyde E. Hart are residents of, own property in, or own or operate businesses in Volusia County and submitted oral or written objections during the review and adoption proceedings. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent Volusia County, which is a charter county, is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. Volusia County is a charter county. Volusia County is located on the Atlantic Coast and is bounded by Flagler and Putnam Counties to the north, Brevard and Seminole Counties to the south, and Lake County to the west. The east boundary runs about 47 miles along the coastline, and the west boundary includes about 75 miles along the St. Johns River before running along lakes to the north and south. Volusia County contains 14 incorporated areas. Only four of these incorporated areas are in west Volusia County: DeLand, which is the County seat; Lake Helen; Orange City; and Pierson. The coastal area contains the remaining 10 incorporated areas, including the county's principal city, Daytona Beach. Public Participation By Resolution No. 86-105 adopted August 7, 1986, Volusia County established various requirements for notice and public hearings in the comprehensive planning process. Acknowledging that the Volusia County Planning and Land Development Regulation Commission serves as the local planning agency (LPA), pursuant to Volusia County Ordinance 80-8, as amended, Resolution No. 86- 105 directs the Volusia County Planning and Zoning Department to accept, consider, preserve, and respond to written public comments. Following the adoption of Resolution No. 86-105, the LPA commenced a process designed to ensure that citizens with a wide range of interests could make substantial contributions to the comprehensive planning process. The LPA formed five citizens' committees, known as Citizen Resource Committees, to consider planning questions corresponding to each of the elements required to be included in the comprehensive plan. Each committee comprised about 20 members, and the chair of each committee was a member of the LPA. 1/ Membership of each Citizen Resource Committee was diverse. For instance, members of the land use committee included homeowners, developers, and environmentalists. The diversity of membership was the result of the LPA's efforts to solicit nominations for membership from a broad range of civic, trade, or professional associations. In all, the LPA asked 150 organizations to make nominations and 62 organizations did so. In the case of the land use committee, for example, members were nominated by, among others, such groups as the League of Women Voters, Association of Condominiums, West Volusia Home Builders Association, and Volusia-Flagler Environmental Political Action Committee, Inc. Each Citizen Resource Committee met about nine times from July, 1988, to May, 1989. Prior to these series of meetings, the LPA conducted a meeting to explain the comprehensive planning process. Each meeting of the LPA or Citizen Resource Committee was open to the public and announced by news releases published in numerous local news media. During the nine months that the Citizen Resource Committees met, Volusia County amended Resolution No. 86-105 to require that all planning materials given to the Citizen Resource Committees, LPA, or County Council be available for review by the public. Adopted February 2, 1989, Resolution No. 89-27 made planning documents available for copying by the public at cost. Following the completion of the work of the Citizen Resource Committees, the LPA then conducted six public workshops between June 14 and June 27, 1989. Large display advertisements were published in local newspapers of general circulation preceding at least some of these meetings, including the June 14 and 19 meetings where it was announced that the LPA would consider certain named elements for recommendation to the County Council. The LPA ultimately recommended the draft elements to the County Council. On July 7, 1989, the County Council held its first public workshop on the proposed plan. Over the next two months, the County Council conducted nine such workshops, at least some of which were announced by large display advertisements in local newspapers of general circulation. Minutes and notes of these workshops indicate that Council members regularly solicited comments from members of the public in attendance. The County Council conducted nine public workshops or hearings from July 7, 1989, through August 29, 1989. The County Council workshops culminated in the transmittal hearing, which took place on September 7, 1989. The hearing was announced by large newspaper display advertisements that satisfied all requirements of law. After transmittal of the proposed plan and receipt of the Objections, Recommendations, and Comments of DCA, the County Council announced by large display newspaper advertisements that a hearing would be conducted on February 22, 1990, to receive public comments and adopt the comprehensive plan. The notice satisfied all requirements of law. The County Council received extensive public comments at the February 22 hearing and continued the hearing to March 8. Again receiving extensive public comment at the March 8 hearing, the County Council continued the hearing to March 15. The County Council adopted the comprehensive plan at the March 15 hearing, although Ordinance No. 90-10, which adopts the plan, indicates that the plan was adopted at a public hearing on March 10, 1990. 2/ Ordinance No. 90-10 adopts the goals, objectives, and policies, but not the supporting data and analysis. Traffic Circulation Element Data and Analysis In preparing the Traffic Circulation Element (TCE), the County first inventoried the existing road system to determine capacity, demand, and overall system performance. To assist in this effort, the County Council retained (Kimley-Horn and Associates, Inc., which issued a report in September, 1989, analyzing the availability of transportation facilities and services to serve existing and future demands (Kimley-Horn Report). The Kimley-Horn Report serves as part of the data and analysis on which the plan was based. Beginning with 1987 conditions, Kimley-Horn noted that the County required nearly $68.2 million of road improvements to attain level of service C on all roads. 3/ To evaluate future needs, Kimley-Horn used a standard traffic forecasting formula and socio-economic data provided by the County Planning Department. After identifying numerous traffic analysis zones and validating the model for the subject forecasting purposes, Kimley-Horn ran ten model runs. In designing various network alternatives, Kimley-Horn considered level of service standards in light of factors such as the requirement of concurrency, the goal of urban in-fill, and the "[d]irect correlation between urban size and acceptance of some highway congestion as a trade off for other urban amenities and cost considerations." Kimley-Horn Report, page 17. The West Volusia Beltline would be located in southwest Volusia County between U.S. 17/92 and 1-4. Comprising several segments, the beltway's southernmost segment is from Graves Avenue to Saxon Boulevard. Apparently while Kimley-Horn was preparing its report, Volusia County adopted a Five-Year Road Program, which includes certain projects from a 2010 financially feasible plan for the coastal area. The Five-Year Road Program, which will cost $94.7 million for right-of-way acquisition and construction, will require $52 million from the County, or $59.3 million after taking into consideration the effect of inflation. From north to south, the Five-Year Road Program includes the following segments of the West Volusia Beltway, which are all under County jurisdiction: Kepler Road to Taylor Road (1.0 mile)--construction of two lanes; Taylor Road to State Route 472 (2.3 miles)--construction of two lanes; and State Route 472 to Graves Avenue (1.0 mile)--addition of two lanes to the two existing lanes. The Kimley-Horn Report estimates that, during the five-year road program, the County will have revenues of only $49.2 million available for road construction without regard to inflation but assuming increases in population and tourism. The report discusses various options, such as raising impact fees, raising the share of gas taxes devoted to construction versus maintenance, and accelerating road projections to negate the effect of inflation. The County- estimated revenues are 6-17% short of estimated costs. In any event, the projected revenue shortfall during the Five-Year Road Program should have no effect on the three West Volusia Beltway projects. The Kimley-Horn Report ranks all of the five-year projects based on relative importance. All three beltway projects are in the top ten, and the cumulative construction costs expended through the first ten projects is $28.8 million, which is well within available revenues of $49.2 million. Assuming that the Five-Year Road Program is timely completed, Kimley- Horn calculated 1995 levels of service by applying County-supplied socioeconomic data to existing traffic models. The result, displayed on Figure 11 in the Kimley-Horn Report, discloses an insignificant segment of U.S. 17/92 in the downtown area at level of service F and, especially relative to east Volusia County, little system mileage at level of service E. Based on the analysis described in the preceding paragraphs, the Kimley-Horn Report concludes that county-wide roadway operating conditions in 1995 are excellent in that, out of 895.3 system miles, only 21.4 miles are predicted to operate at Level of Service F. This represents 2.39 percent of the county's system miles. In the same light, 52.86 miles fall at Level of Service E condition representing 5.9 percent of the total system miles. Overall, approximately 92 percent of the county-wide roadway system-miles is predicted to operate at Level of Service D or better in 1995. Kimley-Horn Report, pages 58-60. Table 28 of the report, which divides the County into 11 geographic areas, prioritizes road segments for construction after 1996 based on volume-to- capacity ratios projected for 1995 after completion of the base network. 4/ Table 28 projects no excessive use of segments in west Volusia County. The average volume-to-capacity ratios in west Volusia County are projected as follows: for the area north of DeLand--0.40; for the area south of DeLand--0.60; and for the area west of Deltona--0.75. Although the last area contains three segments with ratios over 0.90, the West Volusia Beltline would, in 1995, have a volume-to-capacity ratio of only 0.44. Designing a 2010 network, Kimley-Horn analyzed additional highway segments selected from a financially feasible plan and various alternatives previously considered in the report. These segments, which are listed in Table 19 of the report, exclude all of the roads contained in the Five-Year Road Program. The total cost, including right-of-way acquisition, construction, and inflation, is $1.38 billion, with the County's share at $510 million. From north to south, the 2010 network contains the following segments of the West Volusia Beltway, which are all projected to remain under County jurisdiction: State Route 44 to State Route 472 (5.6 miles)--addition of four lanes to two lanes in the existing or base network; State Route 472 to Graves Avenue (1.0 mile) --addition of two lanes to four lanes in the existing or base network; and Graves Avenue to Saxon Boulevard (3.0 miles)--construction of four lanes where none exists in the 1995 network. However, the 1995 level of service projections properly ignore those segments of the West Volusia Beltway included in the 2010 network, including the new four lanes south of Graves Avenue, because these segments are not part of the existing or base network. The Kimley-Horn Report estimates that gas taxes and impact fees available to the County to fund the County's system improvements from 1996 through 2010 will total only about $278 million. Assuming that future state contributions will equal past contributions, the Kimley-Horn Report estimates that state revenues for system improvements will total about $272 million from 1996 through 2010. The total County and state contributions are projected to be about $550 million for 1996 through 2010, which would leave a projected combined state/County deficiency of $338 million. The Kimley-Horn Report recommends that the County update the TCE once the projected revenue shortfall materializes following the construction of the base network in 1995. Specific items to be considered include the adjustment of level of service standards, identification of new revenue sources, and adjustment of permitted densities and intensities in the affected areas. The Kimley-Horn Report concludes that the plan updating process should be viewed as an on- going, iterative process whereby road needs, available revenues and finally financial analysis merge... This process is designed to provide a dynamic and on-going planning tool that can be used to provide an on-going monitoring and updating program for the transportation system in Volusia County. Kimley-Horn Report, page 83. Goals, Objectives, and Policies 1. Bicycles and Pedestrians TCE Objective 2.1.1 states that, prior to 1996, the County "shall implement programs to provide a safe, convenient, and efficient motorized transportation system." TCR Objective 2.1.2 states that, prior to 1995, the County "shall implement programs to provide a safe, convenient, and efficient non-motorized transportation system." TCE Policies 2.1.1.4 and 2.1.2.2 state that, prior to October 1, 1990, the County "shall develop regulations for the safe and efficient movement of pedestrians within all new development proposals" [sic]. TCE Policy 2.1.2.1 states that, prior to 1993, the County "shall coordinate with the MPO to develop a County-wide bicycle facilities plan." The Capital Improvement Program schedules all significant capital projects to be undertaken for the six years between 1990-1995. An adopted part of the plan, the Capital Improvement Program contains a summary of road projects beginning at page C-243. The table shows, by year and amount, expenditures for all capital road projects, including the above-described segments of the West Volusia Beltway without significant alterations. Also included are $1.17 million for constructing bike paths in fiscal year ending 1990 and $180,000 for constructing bike paths in the following year. Beginning in fiscal year ending 1991 and through the end of the covered period, the table shows that the County intends to spend about $370,000 annually constructing bike paths/sidewalks and, in the first two years, $860,000 in widening bike paths. 2. Level of Service Standards for Roads The objectives and policies under TCE Goal 2.2 set the level of service standards applicable to roads in the County. TCE Objective 2.2.1 states: Upon adoption of the Comprehensive Plan, Volusia County shall establish peak hour level of service standards and prior to 1996, Volusia County shall achieve and maintain standards for peak hour levels of service on the thoroughfare system. TCE Policies 2.2.1.3 through 2.2.1.6 establish the peak hour level of service standards for state-and County-maintained roads. The level of service standards for state-maintained freeways and principal arterials, in the urbanized and nonurbanized areas, are D and C, respectively. The level of service standards for state-maintained minor arterials and collectors, in the urbanized and nonurbanized areas, are E and D, respectively. TCE Policy 2.2.1.6 sets the level of service standards for County-maintained arterials and collectors, in the urbanized and nonurbanized areas, at E and C, respectively. With respect to the reduced level of service standard allowed on County roads in urbanized areas, TCE Policy 2.1.1.7 explains that the County "shall expend County transportation funds in a manner which encourages compact urban development." TCE Policies 2.2.1.3 through 2.2.1.6 permit certain exceptions to the general level of service standards. A major exception is that the level of service standards apply only to road segments that are neither backlogged nor constrained. By means of this exception, the County distinguishes between roads operating at or above 5/ their adopted level of service standards and capable of widening, which are subject to the general level of service standards, and roads that are, at the time of plan adoption, operating below their adopted level of service standards or are incapable of widening, which are backlogged or constrained, respectively. The plan defines a backlogged road as one operating at a level of service standard below the minimum adopted by the County Council. However, a road operating below its designated level of service standard is not a backlogged road if it is a constrained facility or if it is scheduled for capacity improvements in the five-year road program of the Florida Department of Transportation or the County Council. 6/ Plan Element 20, Paragraph 14. A constrained road is one to which two or more lanes cannot be added due to physical or policy barriers. Plan Element 20, Paragraph 41. TCE Policies 2.2.1.7 through 2.2.1.9 identify backlogged road segments. TCE Policy 2.2.1.10 requires that the actual level of service standard for each identified backlogged road segment be raised by one standard by 1996. TCE Policy 2.2.1.11 requires that the level of service standards for each identified backlogged road segment attain, by 2001, the general standards set forth in TCE Policies 2.2.1.3 through 2.2.1.6. For constrained roads presently at their adopted level of service standards, TCE Policy 2.2.1.22 provides that, barring acceptable mitigation, the County shall not allow further development after the constrained road reaches the applicable level of service standard. 3. Concurrency Requirements The introduction to the Capital Improvements Element (CIE) links the concepts of level of service and concurrency. The introduction, which is not an adopted part of the plan, notes: "The existing service level was used as a benchmark for most of the proposed service level standards found in this draft [sic] element." The introduction acknowledges: Adjusting service levels [and] facility costs to projected revenue allocated to capital facilities is part of the [planning] process. If revenue allocated to pay for capital costs is insufficient, then either service levels have to be reduced or additional revenue raised or created to support the desired level of service. CIE Policy 15.1.1.3 prohibits the issuance of a development order for development that would degrade the level of service standard below the adopted standard, unless the plan specifically permits such a degradation. CIE Policy 15.3.1.1 states that the level of service standards adopted in the plan apply to all development orders issued after October 1, 1990. The issue of vested rights, which is generally reserved for land development regulations, is addressed to some degree in the plan. CIE Policy 15.1.1.7 requires orders for developments of regional impact, if issued after October 1, 1990, to be subject to the plan's concurrency requirements. CIE Policy 15.3.4.3 contemplates the reduction of level of service standards due to the effect of vested development; however, a plan amendment is required in such cases. Recognizing the importance of vested development in terms of demand on public facilities, CIE Policies 15.5.4.6, 15.5.5.1, and 15.5.5.2 require a study of reserved capacities and inventory and analysis of capacity remaining after the demands of vested development have been met. CIE Objective 15.5.1 states that the concurrency provisions adopted as part of the plan will become effective October 1, 1990. Other concurrency provisions are to be included in land development regulations. CIE Policy 15.5.1.1 identifies those facilities, including roads, for which concurrency is required. CIE Policy 15.5.1.3 states: The required facilities shall be in place and operating or estimated to be operating at a minimum service level established in this Comprehensive Plan at the time a building permit is issued, or a building permit is issued subject to the condition that the required facilities shall be in place prior to issuing of that final development order. A final development order is a building permit. Plan Element 20, Paragraph 52. CIE Policy 15.5.1.4 states that the required facilities shall be deemed concurrent "if they are under construction or under contract for acquisition at the time a building permit is issued." CIE Policy 15.5.1.5 adds that the required facilities shall be deemed concurrent "if they are the subject of a binding contract executed for the construction or acquisition of the required facilities at the time a building permit is issued." CIE Policy 15.5.1.6 states: New developments may meet the test for capacity and concurrency if they can be supported by the construction of specific facilities and the expansion of facility capacity by specific projects contained in the first year of the Capital Improvements five year schedule of programmed improvements (Capital Budget), following the issuance of a final development order. This policy shall pertain to the following facility categories: roads ... Specific conditions for the timing of private development and completion of the above facility categories shall be part of an enforceable development agreement and shall be part of the County's development review process when land uses and their densities/intensities are first proposed. Specific timing and phasing of these facilities in relationship to the issuance of building permits and other final development orders shall be delineated in [various land development regulations]. However, CIE Policy 15.5.2.2 requires: The following facilities shall be available to coincide 7/ with approval of building permits for developments that are to be built during a single phase: roads ... It shall be the intent of this policy to ensure that the above-mentioned facilities and services needed to support such development are available concurrent with impacts created by such developments... Specific timing and phasing conditions related to the above concurrency facilities shall be identified in greater detail in [various land development regulations]. Dealing with development projects designed to take place over several years, CIE Policy 15.5.2.3 provides in part: In these cases, programmed improvements from the Five Year Schedule of Improvements shall be included as part of the concurrency determination as long as their availability coincides with the impact of such a multi- year, multi-phase development. CIE Policy 15.5.2.4 addresses the situation in which necessary public or private facilities are delayed. If the delayed facility "may imperil the public health, welfare and safety," the County "may impose delay requirements on any permits it has issued so that public facility availability may be approximately concurrent with the impact of new development." Just as the backlogged and constrained roads are subject to special level of service standards, so too are they subject to special concurrency provisions. These provisions are contained in the policy cluster under CIE Objective 15.5.3. CIE Policy 15.5.3.1 describes the process by which the County will monitor levels of service on backlogged roads. The process begins with documenting as a benchmark the traffic counts on these roads prior to the adoption of the plan. CIE Policy 15.5.3.1.b provides that each backlogged road "shall not be allowed to degrade its operational service standards ... by ... more than twenty (20) percent of the peak hour bench mark [traffic] counts ... " 8/ The monitoring provisions require the County to use generally accepted traffic modeling procedures to project the number of trips generated by proposed developments and the likely distribution of these trips. Regarding backlogged roads, CIE Policy 15.5.3.1.e states: The County shall not approve any additional final local development orders, (excluding vested properties) including building permits, once the percent threshold for projects within urban/urbanized area center(s) including municipalities is reached from final development orders only if such local development orders would generate trips in excess of ten/fifteen/twenty percent on a peak hour basis, unless a final development order is subject to the adoption and implementation of an Area-wide Traffic Action Mitigation Plan. An Area-wide Traffic Action Mitigation Plan shall include, but not be limited to, the following activities: turn lanes signalization incentives for employees to use mass transit where available van/car pooling programs staggered work hours CIE Policy 15.5.3.1.f states that the "goal" of the Area-wide Traffic Action Mitigation Plan is to achieve "100 percent mitigation of the impacts of a proposed development" and that, where applicable, the plan shall include participants besides the developer, such as "adjacent property owners, business establishments and homeowner associations." CIE Policy 15.3.4.8 states: The adopted Volusia County Five Year Road Program, reflected in the Capital Improvements Element's five year schedule of capital improvements[,] will provide the capacity necessary to relieve backlogged State roads. In the event that revenues collected from transportation (road) impact fees fall short of projections and the need arises to delay any of the identified capacity projects, Volusia County shall amend this element and the Traffic Circulation Element through coordination with the Florida Department of Transportation and performing [sic] speed delay studies to more accurately evaluate the level of service on the effected [sic] backlogged road. The County shall temporarily defer the issuance of development orders having direct impact on the facility which cannot be corrected through implementation of a Traffic Action Mitigation Plan as identified in 15.5.3.1(e) of this element, until such time that the level of service has been improved to the acceptable level. Any change in service level standards as a result of speed delay studies shall be done through a plan amendment. 9/ Awkward grammar in the first sentence of CIE Policy 15.5.3.2 precludes a finding as to what constrained facilities are addressed by this policy, but in general the policy provides that the County "may allow development to occur [on these constrained facilities] which will not increase peak hour traffic volumes by more than five or ten percent." Five-percent degradation is allowed for physically constrained state roads, and ten-percent degradation is allowed for policy constrained state roads. CIE Policy 15.5.3.2 requires the developer of the development impacting a constrained road to prepare a Traffic Analysis and implement an Area-wide Traffic Action Mitigation Plan, but only after an urbanized constrained state road has degraded to its minimum level of service, as set forth in the plan. At this point, "no further degradation will be permitted below the minimum approved local service levels set for constrained roads, that in 1989 were operating at or above the desired minimum service level." CIE Policy 15.5.3.2.d prohibits the County from denying a development order if the developer demonstrates a willingness to maintain service levels by entering into an enforceable development agreement including the implementation of either an Individual or Area-Wide Traffic Action Mitigation Plan, where the developer has demonstrated good faith to achieve 100 percent mitigation of the impact of such development. Payment of the road impact fee may not necessarily meet the 100% mitigation desired. For constrained County roads, the County "shall closely monitor" traffic volumes. Once the constrained road reaches its minimum acceptable level of service (C if nonurbanized, E if urbanized), TCE Policy 2.2.1.22 provides: "the County may not allow further development which cannot provide acceptable mitigative measures to the adverse traffic impacts of the proposed development." For development impacting either a backlogged or constrained road, TCE Policy 2.2.1.23 requires the developer to prepare an "Area-wide Traffic Action Mitigation Plan" covering those geographic areas specified as affected by relevant land development regulations. Other policies describe the traffic impact model in detail and procedural processes by which persons denied development orders may challenge the factual bases underlying the denial. CIE Policy 15.5.4.1 limits to two years the life of the concurrency determination for all public facilities for which concurrency is required, unless the County and applicant agree otherwise. In the latter case, however, the applicant must guarantee his financial obligations for public facilities by providing a cash escrow deposit, irrevocable letter of credit, prepayment of impact fees, prepayment of connection charges, or Community Development District, pursuant to Chapter 190, Florida Statutes. CIE Policy 15.5.4.4.1 provides that "if concurrency and facility capacity is not available or cannot be made available through Policy 15.5.4.1(2)(a) ..., these findings shall be reasons for denial of such development orders." CIE Policies 15.5.5.7-15.5.5.9 add detailed requirements to the land development regulations concerning the concurrency management system and specifically the evaluation and monitoring necessary for the successful operation of a concurrency management system. 4. Financial Feasibility of Road Projects The final section of the CIE, although not formally adopted as part of the plan, is entitled, "An Introduction to the [CIE] Six Year Program: Fiscal Year 1989-90 to Fiscal Year 1994-95." This section begins: "The proposed [CIE]'s Five Year Program is feasible only to the extent that certain actions can be implemented prior to October 1, 1990." These actions include the following: approval of the one cent optional sales tax by May, 1990; increase of road impact fees to cover an estimated $6 million shortfall; and restriction of the funding of road safety and other road projects to sources other than existing gas tax revenues, such as the one cent optional sales tax, increased ad valorem taxes, or other sources. The introduction to the CIE concedes that the one cent optional sales tax is a key future revenue source to pay for improvements for facilities that either have no dedicated revenue source or that have revenue sources that have been used in the past but are no longer adequate to maintain or improve service levels into the future. Clearly without the One Cent Optional Sales Tax, the amount of Capital Improvements will have to be reduced in half. This will have severe impacts on service levels for ... roads ... The introduction reasons that ad valorem property taxes should not be used extensively for financing much of the required facilities because ad valorem taxes are needed to operate the newly constructed facilities and the seasonal population does not pay its fair share of the cost of facilities when they are financed by ad valorem taxes. Although not adopted as part of the plan, the data and analysis supporting the CIE contain useful background information concerning financial feasibility. Table 15-15 indicates that the County's share of the optional one cent sales tax would have been $81.3 million for the six-year period, 1990-95. Table 15-16 shows, for the same period, that capital road projects constitute about 24% of all capital expenditures. The Capital Improvement Program begins with a budget message from the County manager. Stressing the importance of the one cent optional sales tax, the message concludes that the only other viable Source of funding the County's infrastructure needs is the ad valorem tax. The total cost of road projects for 1990-96 is $122.6 million. Capital Improvement Program, page C-246. Of this sum, the local option sales tax was Projected to Provide $35.6 million. Id. During the same period, the County's capital expenditures are Projected to total $417.8 million. Capital Improvement Program, page B-2. Of this total, $249 million was Projected to be spent on facilities for which concurrency is required. Id. CIE Objective 15.3.1 places roads as the highest priority among all other facilities. The objectives and policies under CIE Goal 15.4 describe the funding Sources for capital projects. These Sources include user fees, impact fees, broad-based revenue sources, and debt Proceeds. Among user fees, CIE Policy 15.4.1.9 allocates the gas tax between maintenance and construction expenditures. CIE Policy 15.4.1.10 extends all gas taxes under the County's control to 2010. CIE Policy 15.4.1.11 directs the County to use "to the maximum extent possible" all other road user fees, such as toll roads, utility taxes, and special assessments. Addressing impact fees for roads, Objective 15.4.2 provides: Future development shall bear their fair share (a pro rata share) of not less than seventy (70%) percent of road facility costs including [right-of-way] as a result of their development in order to achieve and maintain the adopted level of service standards and other measurable objective standards. CIE Policy 15.4.2.6 requires the County to "verify that the impact fees are sufficient to cover the pro rata share of improvement costs necessitated by new development." CIE Objective 15.4.3 promises that the County will "rely primarily on the broadest revenue bases as possible for the funding of Capital facilities." CIE Policy 15.4.3.2 reserves the one cent optional sales tax for facilities for which no dedicated revenue sources exist. CIE Policy 15.4.3.3 restricts the County from using increases in the ad valorem tax millage rate for purposes other than operating costs associated with future additional capital facilities, unless other sources of funding are not available. CIE Policy 15.4.3.5 considers the alternatives if the one cent optional sales tax were not approved by the voters. In such a case, the County shall consider, among other measures, increasing the ad valorem tax millage rate to fund public facilities for which concurrency is required, creating special taxing districts, reducing service levels, increasing yet-to-be specified new revenue sources, and selectively using Community Development Districts. 10/ Relevant Provisions of the Regional Plan Policy 64.1 of the East Central Florida Comprehensive Regional Policy Plan (Regional Plan) provides: Local governments and the Florida Department of Transportation will set appropriate minimum levels of service for components of the regional roadway system under their respective jurisdictions. The ... Regional Planning Council will assist these bodies in developing their service standards, with the following level of service standards being used as guidelines in the determination of levels of service for individual components of the regional roadway system: In rural areas (Level of Service "C") * * * In urban fringe, urban residential areas, and outlying business districts (Level of Service "D") * * * In central business districts (Level of Service "E") * * * The minimum levels of service determinations will be based on the following criteria: Regional level of service guidelines: Existing conditions of each roadway: Planned programmed roadway improvements: Financial constraints: and Local Comprehensive Plans, and adopted DRI or other development orders. Level of service E on roads of the State Highway System are subject to the agreement of the local government, regional planning council, Florida Department of Transportation, and Metropolitan Planning Organization. Regional Plan Policy 64.5 provides: Access to minor arterials, major arterials and expressways shall be limited in order to maximize their traffic-carrying capacity and safety ... Regional Plan Policy 64.8 states: The principle of equitable cost participation shall be used as a guide in development approval decisions, including allocation of costs among private parties benefiting from or creating the need for transportation improvements, with consideration being given to: New development being required to pay its fair share as a condition for development approval, unless sufficient funds are available from other sources; Existing unmet needs being identified, to include the nature of the need and estimated cost of fulfillment; and Existing land uses and activities which benefit from better access being required to participate in the cost of the roadway improvement or new construction which results in the improved access in the form of user fees or special assessments. Provisions being made in local development orders to include the mitigation of adverse impacts on the state highway system. Regional Plan Policy 64.6 requires that traffic signalization, roadway signage, and operational capacities be designed "to optimize traffic flow and enhance the levels of service throughout the regional roadway network. Regional Plan Implementation Policy 64.5 provides in relevant part: Local governments are requested to undertake the following actions: Evaluate the feasibility and practicality of enacting ordinances capable of assessing existing landowners a proportionate share of costs associated with the elimination of unmet needs based on the provision of enhanced level of service benefits accruing from roadway improvements or new construction projects. Enact impact fee ordinances which are designed to cover the fair share cost of roadway improvements on local and state roadways except for that portion of deficient capacity already existing. Seek public review and comment on all new roadway construction proposals and widening projects. Regional Plan Implementation Policy 64.6 requests Metropolitan Planning Organizations to take certain actions and is thus irrelevant to the present case. Capital Improvements Element The financial feasibility of the entire plan, which is challenged by Petitioners Hart, has been considered to some extent in the findings concerning roads. These findings involve not only the financial feasibility of the Capital Improvement Program for roads, but the overall financial feasibility of the plan. As explained in the corresponding section of the Conclusions of Law, the optional one cent sales tax may be considered to a greater extent in determining the financial feasibility of the entire plan than it may be considered in the availability of scheduled capital projects in making concurrency determinations. The Capital Improvement Program, which schedules capital improvements for the six year period from 1990-1995, identifies, as noted above, $417.8 million in capital expenditures. Although the sources of funding are not collected in a single table like expenditures are, revenues are identified in numerous tables covering each of the numerous categories of public expenditures. In each case, revenues match expenditures. The Capital Improvement Program does not address alternative revenue sources to the optional one cent sales tax. However, CIE 15.4.3.5 describes revenue alternatives to the optional one cent sales tax. Future Land Use and Conservation Elements Data and Analysis The data and analysis accompanying the Future Land Use Element (FLUE) contain population tables prepared by the County, U.S Census, and Bureau of Economic and Business Research, University of Florida. The population projection for 2000, which is 506,000 persons, is the high-range projection prepared by the Bureau of Economic and Business Research. Support Document #1-1, page 14. Among the factors considered in the land use suitability analysis are the type of soil, presence of wetland vegetation, and nature of the floodplain if the land is located in the 100-year floodplain. Support Document #1-5, page Analysis of these factors is incorporated into a suitability rating system, which is then projected onto maps. Id. The land use suitability analysis contains an extensive inventory of native habitats, soils, and existing land uses by region. The suitability rating system factors in other items such as the availability of central water and sewer and the presence of historic resources. Support Document #1-6 describes the process by which future uses are allocated to the land. Taking the projected population of the unincorporated part of the County, the analysis first allocates the population among six geographic planning areas. Determining the number of dwelling units needed to accommodate the projected population, the analysis generates data indicating the additional acreage required, by the end of the planning timeframe, to accommodate expected residential and nonresidential uses. A growth factor of 30% is then added to the residential and commercial categories due to high growth rates expected from the County's proximity to Disneyworld and the proposed Spaceport. Support Document 1-7 describes the process by which the land uses necessary to accommodate the previously described growth are designated on the future land use maps. Data and analysis supporting the future land use designations for forestry, agriculture, and environmental uses are found in Support Document #12- 1, which accompanies the Conservation Element. Based upon considerable data concerning wildlife and native habitats, the analysis concludes that "there are broad expanses of ecologically interconnected lands." Id. at page 12R-50. The analysis recommends that the plan establish a land use category within which urban development would be discouraged... Because growth should be directed towards those lands best able to accommodate future development, marginally suited lands for development should be placed in a Natural Resource Management Area (NRMA), as should interconnecting environmentally sensitive and ecologically significant lands. This would include ... inland swamp systems, riverine and estuarine flood plains, critical wildlife habitats, and endangered, rare or threatened ecosystems." The recommendation for the establishment of Natural Resource Management Areas (NRMA) explains further: The area within the NRMA should be divided into districts of special use, promoting activities which are compatible with natural resource protection. Among these divisions should be one which affords a degree of protection to natural systems which would assure their continued, uninterrupted preservation. Although several thousand acres of these lands are in public ownership, there is not enough public funds to purchase all the environmentally sensitive lands in the County, and therefore requires land use controls to ensure an adequate degree of ecological integrity. Because a major component of the value of natural communities is the ecological interrelationships with other natural communities, a highly effective way to protect ecological functions would be to form a natural areas network, or corridors. Land which falls within this network, referred to as Environmental Systems Corridors (ESC's), would be restricted to land use activities which inflict extremely small long term impacts on ecological functions, primarily a type of large lot conservation residential and passive types of agriculture, particularly silviculture. The corridors should include protected systems of wetlands, conservation lands and, where possible, rare and threatened upland communities such as mesic hammocks and longleaf pine-oaks. Because silviculture is the predominant use on the relic marine terraces, and that this use appears to be the most suitable for the terraces given the natural constraints of the land, a forestry district should be established within the NRMA. The intent of the forestry district would be to promote silvicultural pursuits and to keep this a predominant use on the relic terraces. This should be part of the NRMA because silvicultural activities typically have the least impact on natural resources other than public ownership, and thus should be encouraged on private landholdings. Other types of agricultural uses should be allowed in the forestry district to provide a certain amount of flexibility, but silviculture should be the predominant use. * * * Established agricultural areas which occur within the NRMA, particularly around Samsula should be considered an agricultural enclave within the NRMA, and should have the appropriate agricultural land use classifications. The enclave should allow room for a limited amount of agricultural growth. Id. at pages 12B-51 and 12B-52. Although the analysis concedes that the data are unavailable by which to map the vegetative communities at a sufficiently high level of detail, the mapping was scheduled to be completed by March, 1990. In the meantime, maps contained in the Support Document indicate generally the location of important vegetative communities, partly because of extensive reliance upon NASA infrared maps of wetlands and vegetation. Goals, Objectives, and Policies Various goals, objectives, and policies are relevant to Petitioners Hart's challenge to the relationship between the forestry, agricultural, and environmental designations and the operative provisions of the plan. Conservation Element Objective 12.2.1 is to "provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Toward that end, Conservation Element Policy 12.2.1.1 provides that "[e]xisting, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning." These units are NRMA's. Conservation Element Policy 12.2.1.1 identifies specific areas to be included in NRMA. Conservation Element Policy 12.2.1.2 requires the County to: promote land use activities compatible with the intentions of the NRMA through the establishment of special use areas, the boundaries of which to be determined by resource data including: ecological community mapping as stated in Policy 12.2.2.1, USGS Topographic maps; National Wetland Inventory maps; Florida Natural Area Inventory records; available wildlife data; and site specific field information if available. Conservation Element Policy 12.2.1.2 establishes Environmental Systems Corridors (ESC) and Forestry areas within NRMA's. The policy identifies these two designations as follows: ESC's shall include significant interconnected natural systems of environmentally sensitive lands, connected to and including conservation areas where possible. Land use activities shall be limited to conservation, silviculture utilizing Best Management Practices, and large residential lots with limits on land clearance. Proposed roads which encroach within ESC's shall minimize adverse impacts by: aligning the routes at the least sensitive areas (e.g., narrowest width of wetlands); requiring sufficiently sized bridging and culverts over wetlands to allow non-interrupted water flow and wildlife access; and posting low speed limits and/or caution signs. A forestry category shall be established which shall promote the continued and expanded use of silviculture in Volusia County. Because the mixed use concept is an integral component of forest management, the standards of this category shall not interfere with this practice, so long as silviculture remains the dominant use and best management practices are followed. The Future Land Use Categories, which are adopted as part of the plan, describe in more detail the ESC, Forestry, and Agriculture designations. Most significantly, the Future Land Use Categories set residential densities at one unit per 25 acres for the ESC designation, an average of one unit per 20 acres for the Forestry designation (but one unit per five acres may be permitted), and one unit per ten acres for the Agriculture designation. FLUE, pages 1-2 to 1-6. The general designation of NRMA's is intended to carry out FLUE Objective 1.2.1, which requires FLUE designations to "reflect the inherent capabilities and limitations of the existing natural features of the land." FLUE Policy 1.2.1.1 requires that, during the development review process, the County shall consider the site's topography, vegetation, wildlife habitat, flood hazard, and soils, as well as the location of the 100-year floodplain. FLUE Policy 1.2.1.3 states that "lands most suited for silviculture activities shall be [designated] under the Forest Resource subcategory of NRMA." FLUE Policy 1.2.1.4 limits the extent of intensive agriculture in any NRMA. FLUE Policy 1.2.1.5 restricts residential development in any Forest Resource area to one unit per five acres. FLUE Coal 1.4 is to "ensure that agricultural and silvicultural lands are protected from encroachment by incompatible land uses and remain a vital element of the County's economy." FLUE Policy 1.4.1.1B provides that urban growth is to be directed away from Agriculture areas. Miscellaneous Findings Petitioners Hart own 11/ 1000-1500 acres at County Road 415 and State Road 44 in the vicinity of Samsula (Samsula Land). They also own 2000-2500 acres just west of Edgewater, south of State Route 44, and mostly east of I-95, which is known as the Charles Sibbald Grant (Sibbald Land). About 500-700 acres of the Sibbald Land lie west of I-95. About three miles south of the Sibbald Land, Petitioners Hart own 6000-8000 acres that is divided almost equally by I- 95 and is known as the John Lowe Grant (Lowe Land). It is not possible to cross I-95 where it divides the land. The Sibbald Land and Lowe Land have no improved roads or other public facilities. Petitioners Hart acquired all of the land for investment purposes. The Samsula Land is mostly undeveloped and used largely for cattle and possibly timbering. The Sibbald Land is a contiguous block of land that has not been subdivided. Hart Land & Cattle Co. acquired the land in the early 1970's. Timber has been harvested on the smaller section of this land west of I-95. The trees have been harvested for about 50 years. Back in the 1940's, a turpentine business was operated on the land. Petitioners Hart have also mined shell for road bases and red sand for asphalt from the Sibbald Land. Petitioners Hart acquired the Lowe Land in 1980 or 1981. Consisting of numerous noncontiguous lots, the Lowe Land is part of a 14,000-acre subdivision known as Cape Atlantic Estates, which was subdivided into 6000-7000 parcels in the late 1960's. Cattle are kept on the northeast corner of the Lowe Land. The Lowe Land has contained improved pastureland for almost 70 years. The record provides no basis for findings of the extent to which land owned by Petitioners Hart is subject to the ESC, Forestry, and Agricultural designations; the extent to which Petitioners Hart have been denied proposed uses of their land; the extent to which Petitioners Hart have exhausted County administrative remedies, such as requesting field surveys, to obtain available relief from the impact of the NRMA designations; or other matters relevant to the taking claims of Petitioners Hart. However, the evidence fails to establish that Petitioners Hart have been denied all economically reasonable uses of their entire property or any individual parcel. Ultimate Findings of Fact Traffic Circulation Element 1. Data and Analysis The evidence fails to establish to the exclusion of fair debate that the analysis accompanying the TCE inadequately addresses existing levels of service and present and future system needs, as well as the need for new and expanded facilities. The evidence fails to establish to the exclusion of fair debate that the analysis inadequately addresses projected levels of service based on future land uses and the relevant plans of other jurisdictions. The evidence is clear that the West Volusia Beltway is feasible, given the funding priorities assigned to its various projects in the plan. There is substantial evidence to support the transportation data and modeling on which the road networks are based. There is no significant evidence that the projected levels of service for any road segments are inaccurate due to an unjustifiable reliance on the traffic to be borne by the West Volusia Beltway or for any other reason. Petitioner Wenz alleged that TCE Policy 2.2.1.6, which establishes a level of service standard of E for County-maintained roads in urbanized areas, was internally inconsistent with the introductory language of the CIE concerning the use of existing level of service standards as benchmarks for most of the proposed level of service standards set forth in the plan. This allegation has been treated as raising the issue of supporting data and analysis. 12/ For roads, the analysis begins with the existing levels of service and then, as indicating in the introduction, adjusts service levels to correspond to projected revenues. If the use of the word "benchmark" were to imply an unvarying standard, then the sentence would impose upon the planning effort an unrealistic and, in the case of the County's urban containment strategy, unworkable limitation. Operative plan provisions should not be rejected because of lack of support from incompetent analysis. 2. Goals, Objectives, and Policies The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible in terms of scheduled road projects. Roads receive the highest priority for capital spending in the County. Although the optional one cents sales tax required a referendum, the plan adequately identifies other potential sources of revenue to fund needed road improvements. The unavailability of the optional one cent sales tax means the loss of $35.6 million for road projects over the six-year period covered by the Capital Improvement Program. Representing about 29% of the road budget for these six years, the optional one cent sales tax can be replaced by other funds. Total capital spending over this period is projected at $417.8 million, of which $249 million is projected for facilities for which concurrency is required. The evidence does not establish to the exclusion of fair debate that the shortfall of $35.6 million, under these facts, renders the plan financially unfeasible as to roads. As the plan acknowledges, another factor supporting the financial feasibility of the plan as to roads is the concurrency provisions. 13/ The evidence fails to establish to the exclusion of fair debate that the plan fails to create a monitoring system to enable the County to determine whether it is adhering to the adopted level of service standards and whether public facilities are available. The evidence fails to establish to the exclusion of fair debate that the plan fails to require development agreements to ensure that required facilities will be in place when the impacts of development occur. During periods of revenue shortfalls, timely concurrency determinations supported by an effective monitoring system and understandable level of service standards may help preserve financial feasibility. A concurrency management system breaks the cycle by which the impacts of development outpace the ability of a local government to finance needed infrastructure. To prevent the accumulation of infrastructure deficits, such as backlogged roads, a concurrency management system limits development whose impacts exceed the available capacity of facilities for which concurrency is required. In the absence of funding from the developer or a third party, a financially strapped local government no longer permits the proposed development and thus does not increase the backlog of needed public facilities. The portion of Petitioner Wenz's challenge to provisions governing development agreements also raises the issue of concurrency determinations, at least in the situation where the developer, rather than the County, is providing the required facilities. As to development agreements, CIE Policies 15.5.1.6 and 15.5.3.2.d provide for the use of enforceable development agreements to provide required facilities. CIE Policies 15.5.1.1 et seq. establish generally applicable concurrency requirements that adequately correspond, for the purpose of resolving the present claims, to the concurrency criteria in Rule 9J-5.0055. The concurrency determinations for developments impacting backlogged and constrained roads reflect a strategy of adjusting level of service standards, subject to clear standards and specific time limits, to provide time to eliminate deficiencies that have accumulated over the years. The evidence fails to establish to the exclusion of fair debate that this strategy, when used in development agreements, precludes effective concurrency determinations or, when considered in light of the financial feasibility of road projects, renders the plan financially unsound. 3. Consistency with Regional Plan The evidence fails to establish to the exclusion of fair debate that the plan is inconsistent with the cited provisions of the Regional Plan. Most importantly, the plan's level of service standards are consistent with those contained in Regional Plan Policy 64.1, and the plan's sources of revenue are consistent with the principle of equitable cost participation in Regional Plan Policy 64.8. To the extent that the remaining Regional Plan provisions cited by Petitioner Wenz contain criteria against which the plan may be measured, no evidence suggests the existence of any inconsistencies. Capital Improvements Element The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible. Future Land Use Element 1. Data and Analysis 120. The evidence fails to establish to the exclusion of fair debate that the data and analysis fail to include a land use suitability analysis or that they fail to support, such as through the absence of accurate population projections, the NRMA designations of ESC, Forestry, and Agriculture. To the contrary, the land use suitability analysis is thorough, and the omission of these NRMA designations or equivalent conservation designations would itself have been unsupported by the data and analysis. 2. Maps and Goals, Objectives, and Policies The evidence fails to establish to the exclusion of fair debate that the NRMA designations of ESC, Forestry, and Agriculture, or any other designations contained on the future land use maps, are inconsistent with the operative provisions of the plan. Again, to the contrary, these NRMA designations graphically depict the text of relevant goals, objectives, and policies.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of all Petitioners. ENTERED this 2nd day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1991.
Conclusions Having considered the entire record in this cause, it is concluded That all statements contained within the petition have been found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the state comprehensive plan and the St. Lucie County Growth Management Plan, as amended. That the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate special-district government. DONE and ENTERED this 14th day of January, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of January, 1988. Appendix A (Names and Addresses of Witnesses) Joseph P. Strazzula, Post Office Box 3152, Fort Pierce, Florida 34948 Bruce Scott Benewitz, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Fred A. Greene, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300, Winter Park, Florida 32789 Exhibit 1 Appendix B (List of Documentary Evidence) St. Lucie County Context Nap Metes and Bounds Legal Description of District Warranty Deed of October 29, 1985 Conceptual Phasing Plan of District Conceptual Water and Wastewater Master Plan of District Estimated Infrastructure Construction Schedule and Cost 8A St. Lucie County Growth Management Policy Plan 8B St. Lucie County Ordinance No. 86-92 Economic Impact Statement Authorization of agent Exhibit 2 Letter of September 29, 1987 from Secretary Robertson to Sharyn Smith Exhibit 3A Copy of Notice published in Florida Administrative Weekly Exhibit 3B Notice of publication in The News Tribune Exhibit 3C1 Service of Notice of Hearing on Edgar A. Brown Exhibit 3C2 Service of Notice of Hearing on Joseph P. Strazzula Exhibit 3C3 Service of Notice of Hearing on Douglas S. Putnam Exhibit 3C4 Service of Notice of Hearing on Charles Stone, Jr. Exhibit 3C5 Service of Notice of Hearing on Dr. Kenneth Fulton Exhibit 3D1 Service of Notice of Hearing on St. Lucie County Attorney Exhibit 3D2 Service of Notice of Hearing on St. Lucie County Commission Chairman Exhibit 3E Service of Notice of Hearing on Secretary, Department of Community Affairs Exhibit 4A Notice of St. Lucie County meeting Exhibit 4B Copy of St. Lucie County Resolution No. 87-241 Exhibit 5 Copy of St. Lucie County Ordinance 86-92 Exhibit 6 County Context Map (enlargement) Exhibit 7 Existing and Abutting Land Use Map (enlargement) Exhibit 8 Conceptual Phasing Plan of District (enlargement) Exhibit 9 Corrected Table 3 of Economic Impact Statement Exhibit 10 Table 3 of Economic Impact Statement Exhibit 11 Table 1 of Economic Impact Statement COPIES FURNISHED: Richard S. Brightman, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Glenn W. Robertson, Secretary Florida Land and Water Adjudicatory Commission The Capitol Tallahassee, Florida 32399-0001
Findings Of Fact Parties City of Cocoa Beach The City of Cocoa Beach (City) is a municipality located in Brevard County. The City has previously submitted a comprehensive plan pursuant to the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act of 1985. The Department of Community Affairs determined the original plan to be in compliance, and the determination has become final. Department of Community Affairs The Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Part II, Florida Statutes. Carole C. Pope Carole C. Pope (Petitioner) resides in the City of Rockledge Brevard County, Florida. She submitted oral or written objections during the review and adoption proceedings concerning the subject plan amendment. Petitioner does not own property or own or operate a business in the City of Cocoa Beach. She and her husband own Lot 11 (less the west 15 feet reserved for road right-of-way), Block 101, of the platted subdivision known as Avon-by-the Sea. The parcel, which Petitioner occupies annually during the summer, is located in unincorporated Brevard County, about 200 feet north of the existing north boundary of the City. Petitioner's property, which contains a duplex dwelling unit, measures about 475 feet east-west by 50 feet north-south. The lot is bound on the north by Wilson Avenue, the west by Azure Lane, the east by the Atlantic Ocean, and the south by Lot 12 of Block 101. Immediately south of Petitioner's lot are four other oceanfront lots measuring about 490 feet east-west by 50 feet north-south and constituting over two acres of the 2.3-acre Subject Parcel. These four lots and one and one-half smaller lots directly across Azure Lane from Petitioner's lot constitute the land that is the subject of the present plan amendment (Subject Parcel). The five and one-half lots forming the Subject Parcel total about 2.3 acres. The Subject Parcel is located in what is generally a residential area. Many of the nearby lots have been developed with single- and multi-family residential units. Just to the south of the Subject Parcel, across Harding Avenue, is an eight-story condominium project known as Discovery Beach. Immediately north of Petitioner's lot is a two-story condominium. One block west of Azure Lane is Ridgewood Avenue, which is classified as a collector. Two blocks, or about one-quarter mile, west of Azure Lane is State Route A1A, which is classified as a major arterial. Annexation of Subject Parcel The Subject Parcel comprises properties not under common ownership. For instance, the owners of the small one and one-half lots west of Azure Lane do not own the four large oceanfront lots immediately south of Petitioner's property. In response to the desires of a prospective purchaser, the owners of the Subject Parcel caused or allowed the commencement of an annexation proceeding with respect to their properties. The northern boundary of the City presently extends to Harding Avenue, which runs along the south boundary of the southernmost of the four oceanfront lots described above. On March 15, 1990, the City Commission adopted on second reading Ordinance No. 928. The ordinance describes the Subject Parcel and states that it is "hereby annexed and incorporated into the City of Cocoa Beach." Somewhat contradictorily, Ordinance No. 928 also states: This Ordinance shall become effective following compliance with Section 163.3187(15)(c) Florida Statutes (1987) and immediately after the changes herein provided for have been duly entered upon [the Future Land Use Map]. The ordinance adds in the following section: "This Ordinance will become effective upon completion of publication requirements for annexation and compliance review by the State Department of Community Affairs." The intent of the City Commission in adopting Ordinance No. 928 was to postpone the effective date of the annexation until DCA's determination of compliance, as to the plan amendment, became final. The ordinance is interpreted consistent with this intent. The language of Ordinance No. 928 is unclear as to whether the annexation takes effect in the event of a final determination of noncompliance. It appears that the intent of the City Commission in adopting Ordinance No. 928 was to condition the annexation upon a favorable final determination. Absent a final determination of compliance, the annexation would never become effective and the Subject Parcel would remain in the unincorporated County. The ordinance is interpreted consistent with this intent. The language of Ordinance No. 928 is unclear as to whether the annexation takes effect regardless of the objections of current owners during the plan amendment review process. As to this issue, the intent of the City Commission in adopting Ordinance No. 928 is not evident. It appears that no one anticipated this possibility. In fact, the owners of the one and one-half lots west of Azure Lane no longer desire annexation into the City. The record does not allow a determination whether annexation may proceed over the owners' objection. Plan Amendment and Additional Data and Analysis Ordinance No. 928 makes only one amendment to the operative provisions of the City's plan. The ordinance designates the Subject Parcel as High Density Multi-Family on the Future Land Use Map. The City's High Density Multi-Family designation allows a residential density of 15 dwelling units per gross acre, a transient (hotel/motel) density of 40 rooms per gross acre, and limited professional and commercial uses. The City transmitted to DCA two sets of data and analysis in support of the designation proposed for the Subject Parcel. The first set accompanied the plan amendment, and the second set consisted of responses to DCA's Objections, Recommendations, and Comments on the proposed plan amendment (collectively, Data and Analysis). The Data and Analysis explain that the City's proposed designation would yield 35 dwelling units or 92 hotel/motel rooms on the Subject Parcel. However, the Data and Analysis note that the "applicant" (i.e., the prospective purchaser) will agree to allow the City to restrict the hotel/motel density to 30 rooms per gross acre, which generates 69 hotel/motel rooms. 5/ The two sets of Data and Analysis are inconsistent as to the critical question of the present designation and permitted land uses under the County's plan. The first set erroneously states that the County's plan designates the Subject Parcel as "Mixed Use" and allows 30 hotel/motel rooms per gross acre for a total of 69 rooms. The second set correctly states that the County's plan designates the Subject Parcel as "High Density Residential" and omits mention of any hotel/motel uses. Since April 9, 1990, if not before, the County's plan has designated the Subject Parcel as "Residential." 6/ Addressing the impact of the proposed designation upon public facilities, the Data and Analysis calculate an increase in daily vehicular trips from 455 to 703, if the 69 residential units under the County's plan were changed to 69 hotel/motel rooms under the City's plan. However, the additional trips would not, according to the Data and Analysis, reduce the level of service standards of affected roads below the adopted level of service standards for those roads. A similar conclusion follows if the City allowed 92 hotel/motel rooms to be built on the Subject Property. The Data and Analysis disclose ample capacity in central sewer and water facilities and disclose no problems with respect to other facilities and services, regardless whether the City allowed 69 or 92 hotel/motel rooms on the Subject Parcel. According to the Data and Analysis, the Subject Parcel is, on average, 9.5 feet above mean sea level, although it is not in the 100-year floodplain. The soil series found on the site has only very slight limitations for dwellings. The dune area, which has suffered little erosion, is well vegetated with dune grass, sea oats, sea grapes, and railroad vines. Otherwise, the Data and Analysis report that the site is clear, except for a building located seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources. 7/ The Data and Analysis state that the Subject Parcel contains no known habitat for endangered or threatened species or species of special concern, although the Atlantic Loggerhead Turtle and Atlantic Green Turtle use the coastline for nesting. However, the Data and Analysis mention that the City's lighting ordinance helps eliminate a lighting hazard to the fledgling sea turtles from May 1 through October 31. With respect to coastal hazards, the Data and Analysis state that the landward boundary of the Coastal High Hazard Area, through the Subject Parcel, is about 365 feet west of the mean high water line. The Data and Analysis represent that the City permits no building in this area and allows no disturbance seaward of the Coastal Construction Control Line in the absence of a hermit from the Florida Department of Natural Resources. Noting that the each of the two plans allows a total population of 152 persons on the Subject Parcel, the Data and Analysis reason that the proposed amendment will not impact actual hurricane evacuation times or designated maximum hurricane evacuation times, which in each plan approximate 12 hours, exclusive of behavioral response times. It is evident from the Data and Analysis that the construction of even 92 hotel/motel rooms on the Subject Parcel would not measurably affect hurricane evacuation times. City's Plan: Data and Analysis As described in Paragraphs 15-22 above, the City provided DCA new Data and Analysis in support of the subject plan. However, the plan already contained data and analysis that bear on the proposed designation of the Subject Parcel. The data and analysis accompanying the original plan state that the City is located on an "intensely developed" barrier island. Of the 1772 acres within the City, exclusive of road right-of-way, finger canals and the Thousand Islands located in the Banana River, only 180 acres of vacant land remain. Based on land use designations, the supply of land available for multi-family development may be exhausted by 1998. The data and analysis note that the sandy beaches and dunes provide essential nesting areas for a variety of endangered or threatened sea turtles. In the Summary of Ecological Communities, the data and analysis list three endangered or threatened wildlife species and two vegetative species as occupying the beach and dune habitat, which constitutes the part of the Subject Parcel seaward of the Coastal Construction Control Line. The data and analysis list no such species occupying the barrier island interior habitat, which constitutes the part of the Subject Parcel landward of the Coastal Construction Control Line. The data and analysis report that a foredune runs the length of Cocoa Beach. However, most of the extant dunes have reportedly been adversely impacted by roads, fences, structures, and parking lots. The data and analysis acknowledge that the entire City is subject to coastal flooding and included in the Hurricane Vulnerability Zone, as well as the "coastal zone." It is less clear what extent of the City is located in the Coastal High Hazard Area. Future Land Use Element (FLUE) Policy 6.3 and Coastal Management/Conservation Element (Conservation) Policy 14.1, which are identical, state that the Coastal High Hazard Area shall be the area located within the "velocity zone or seaward of the Coastal Construction Control Line ...." No map in the plan depicts the location of the Coastal High Hazard Area, and the locations of the velocity zone and Coastal Construction Control Line are not depicted either. The data and analysis state that little infrastructure is located in the Coastal High Hazard Area. The primary strategies of the City to address coastal hazards are to enforce the building elevations shown on Flood Insurance Rate Maps and rely on the Florida Department of Natural Resources to enforce the Coastal Construction Control Line. The data and analysis concede that the City can do little to reduce evacuation times except to exhort the State of Florida to raise the elevation of State Routes A1A and 520, which are critical hurricane evacuation routes and are subject to early flooding. City's Plan: Objectives and Policies Several plan provisions coordinate future land uses with available facilities and services. For instance, FLUE Policy 4.1 precludes the issuance of a development order until the applicable levels of service are met. The future land use designations themselves are also coordinated with available facilities and services. The data and analysis disclose no general deficiencies in relevant facilities and services when evaluated against the designations contained in the future land use maps. As to the coordination of future land uses with topography and soil conditions, FLUE Objective 3 limits development on Tidal Swamp soils to one unit per five acres; FLUE Objective 9 prohibits construction activity from damaging the dunes; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element (Public Facilities) Objective 4 requires the City to complete a study by the end of 1992 to identify its most pressing drainage problems and initiate solutions; Public Facilities Policy 5.1 imposes a drainage level of service standard with respect to stormwater runoff; FLUE and Conservation Objectives 1 require the use of flood control and shoreline erosion control techniques to improve estuarine quality; Conservation Objectives 4 and 5 and the ensuing policy clusters provide protection to the dunes; and Conservation Objective 6 and the ensuing policy cluster provide protection to the beaches. Several plan provisions ensure the protection of natural resources. The plan states that the City contains no waterwells, cones of influences, or minerals. Plan provisions protecting beaches and soils have been discussed in connection with the coordination of future land uses with soils and topography. Plan provisions concerning wetlands are irrelevant to the present case because the Subject Parcel contains no wetlands. Although drainage from the Subject Parcel may reach the estuarine waters of the Indian River Lagoon, the connection is too remote to interpret the amended petition as raising the issue of protection of rivers and bays. As to floodplains, a Future Land Use Map shows the entire oceanside of the City to be outside of the 100-year floodplain. Conservation Objective 15 is to achieve an evacuation time of less than 12 hours for a category three or stronger hurricane. FLUE Policy 4.1g conditions the issuance of a development order on a determination that a project will not increase the hurricane evacuation time to over 12 hours. FLUE Policies 1.1-1.3 and 6.1-6.4 address implementation activities for the regulation of land use categories. With respect to policies addressing implementation activities for the regulation of floodprone areas, FLUE Objective requires construction in the floodplain or the Coastal High Hazard Area to satisfy the building elevations identified in the Flood Insurance Rate Maps. Several plan provisions address implementation activities for the provision of drainage and stormwater management. FLUE Objectives 2 and 3 deal with drainage and stormwater management, and FLUE Policies 2.1 and 3.1 establish implementation activities reasonably calculated to achieve the objectives. FLUE Policy 4.1a conditions the issuance of a development order on a determination that a project will retain the first inch of runoff (for a project less than 100 acres) or the first half-inch of runoff (for a larger project), apparently in a 10-year/24-hour storm event. The policy also limits, for such a storm event, post-development runoff to predevelopment runoff. Public Facilities Policy 4.1 provides that the City will promptly fund the most critical drainage improvements identified in a drainage study to completed by the end of 1992. FLUE Policy 7.1 requires the City to require the preservation of environmentally sensitive coastal and wetland areas or that damage be mitigated. Several objectives protect beaches and dunes. FLUE Objective 8, which is identical to Conservation Objective 4, provides that vehicular and pedestrian traffic shall not damage the dune system. FLUE Objective 9 provides that construction activities shall not damage the dunes. Conservation Objective 5 is identical, but adds that altered dunes shall be restored. Conservation Objective 6 states that the City shall promote beach nourishment projects. Policy 3.4 requires the City to set aside at least two islands in the Thousand Islands to be used exclusively as rookeries and wildlife habitat, and Conservation Objective 7, as well as the ensuing policy cluster, protect and increase native vegetation and wildlife habitat. Conservation Objective 10 and its policy cluster protect soils and groundwater from hazardous waste contamination. Conservation Objective 14 is to "direct population and development landward of the coastal high-hazard area." The two policies under Objective 14 provide for the relocation of public infrastructure in the Coastal High Hazard Area (unless related to certain excepted uses) and for the rebuilding of certain structures in the Coastal High Hazard Area in accordance with all current land development regulations. FLUE Policy 2.1b conditions the issuance of a development order within the Coastal High Hazard Area upon the determination that the Florida Department of Natural Resources has approved the construction and the proposed project complies with any "reasonable" conditions imposed by the Florida Department of Natural Resources. Conservation Policy 13.2 states: "[The City] will rely upon the Florida Department of Natural Resources to enforce the building limitations seaward of the Coastal Construction Control Line." Many plan provisions identifying techniques for limiting impacts of development on water quality, wildlife habitat, living marine resources, and beach and dune systems have been discussed in the preceding paragraphs. Additional provisions include Public Facilities Policy 1.1, which is to expand the effluent reuse program until at least half the effluent is reused by 1995; Conservation Policy 3.1, which protects sea turtles and their nests by enforcing the light ordinance and monitoring; Conservation Policy 3.2, which protects manatee habitat; Conservation Policy 3.5, which requires the preparation of a management plan for the minimization of adverse effects of development on endangered or threatened species found on the site; Conservation Policy 7.4, which prohibits the use and, in the event of redevelopment or construction, requires the removal of noxious, exotic species such as Brazilian Pepper; and Conservation Objective 9, which is to reduce discharge from the City sewage treatment plant into the Banana River Lagoon by 50%. Plan provisions identifying techniques for mitigating general hazards, including the regulation of floodplains, beaches and dunes, stormwater management, and land use to reduce the exposure of human life and property to natural hazards, have been discussed in the preceding paragraphs. As to sanitary sewer, Public Facilities Objective 1 assures that the City residents will have access to sanitary sewer facilities and the City will protect the Banana River by expanding the effluent reuse program. Public Facilities Policy conditions the issuance of a development order on a determination of sanitary sewer capacity of 100 gallons per day per person. Plan provisions conserving and protecting soils, fisheries, wildlife, wildlife habitat, native vegetation, endangered or threatened species, and protection from coastal natural hazards have been discussed in the preceding paragraphs. In addition, FLUE Policy 9.2 states that the City will "require development in the dune area to use naturally vegetated dune to meet open space requirements, and to preserve the full range of existing interconnected dune vegetational zones." County's Plan: Objectives and Policies Future Land Use Element Policy 1.1C. of the County's plan limits the land designated as Residential to a density of 30 dwelling units per acre. It is unclear whether the County's plan permits the construction of hotel/motel rooms on the Subject Parcel. 8/ Even if so, the County's plan limits density to 15 rooms per acre. 9/ Future Land Use Element Policy 1.8 precludes any increase in densities for the Coastal High Hazard Area and High Risk Vulnerability Zones until the County completes Strategic Area Plans for the areas in question. Coastal Management Element Policy 4.1 contemplates that the County will permit construction seaward of its Coastal Construction Control Line, which is typically the same as the line established by the Florida Department of Natural Resources. Conditions imposed on construction in the area seaward of the Coastal Construction Control Line include the preservation of half of the existing vegetation, limitation of impervious surface to 45%, and construction to standards designed to withstand wind and water forces from the 100-year storm. Relevant Provisions of the Regional Plan Policy 40.6 of the East Central Florida Comprehensive Regional Policy Plan, June, 1987 (Regional Plan) provides: Structural development along sand beaches fronting the Atlantic Ocean shall not adversely affect the coastal beach and dune system. The following criteria shall apply in the implementation of this policy: Beach setbacks shall be established to protect and preserve the coastal beach and dune systems fronting the Atlantic Ocean. Structures shall be prohibited within the established setback except where overriding public interest is apparent, or the structures are necessary for reasonable access and are elevated above the existing dune vegetation. MEASURE: The number of ordinances which establish beach setbacks. Regional Plan Policy 64.12 provides: Land development in the coastal zone shall be manned [sic] so that public facility and service needs required to maintain existing hurricane evacuation times do not exceed the ability of local government to provide them. MEASURE: The clearance time required to evacuate the population-at-risk within the region's coastal zone. Relevant Provisions of the State Comprehensive Plan Section 187.201(9)(a) is a goal of the state comprehensive plan. The goal is: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the stage's population additional beaches and marine environment, consistent with sound environmental planning. Section 187.201(9)(b) contains the following policies: 4. Protect coastal resources, marine resources, and dune systems from the adverse effects of development. 9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote restoration of coastal dune systems that are damaged. Section 187.201(10)(b)3. is to "[p]rohibit the destruction of endangered species and protect their habitats. Section 187.201(16)(b)1. is a policy to: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new populations and commerce. Ultimate Findings of Fact Jurisdiction As to Issue 1, 10/ the City has exercised planning authority over land that is neither within its jurisdiction nor the subject of a joint agreement with Brevard County. All of the conditions precedent to the annexation have not been met and might not even be satisfied by a final determination of compliance in this case. It is unclear whether annexation will necessarily proceed over the objections of the present owners of part of the Subject Parcel, especially when various unsatisfied contingencies may prevent the prospective purchaser from acquiring title to the land. Consistency of Data and Analysis with Criteria As to Issues 2-6, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues. Consistency of Objectives and Policies with Criteria As to Issues 7-24, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues. Internal Consistency As to Issue 25, it is fairly debatable that the designation of the Subject Parcel contained in the present plan amendment is consistent with the provisions of FLUE Policy 7.1, FLUE Objective 9, and FLUE Policy 9.2. These plan provisions require the protection of environmentally sensitive coastal areas, including the dunes. The designation of the Subject Parcel does not, to the exclusion of fair debate, conflict with these three provisions. To the exclusion of fair debate, the designation of the Subject Parcel as High Density Multi-Family is not consistent with Conservation Objective 14, which is to direct population and development landward of the Coastal High Hazard Area. A finding whether a plan amendment is consistent with a provision to direct population and development landward of the Coastal High Hazard Area may be facilitated by comparing densities allowed under the plan amendment with densities in effect prior to the amendment. With respect to the part of the Subject Parcel within the Coastal High Hazard Area, the County's plan imposes more demanding restrictions upon development than those that would be imposed under the City's plan. In both plans, the local governments cede to the Florida Department of Natural Resources the threshold decision whether to allow construction seaward of the Coastal Construction Control Line, which generally operates as the landward boundary of the Coastal High Hazard Area. However, the City's plan requires compliance only with "reasonable" conditions imposed by the Florida Department of Natural Resources in granting the permit. In contrast, the County's plan requires that construction seaward of the Coastal Construction Control Line (or in the Coastal High Hazard Area) meet certain minimum requirements. 11/ It is impossible to assume that all development of the Subject Parcel will necessarily take place outside the Coastal High Hazard Area. Neither plan itself prohibits development in the Coastal High Hazard Area, which encompasses nearly 75% of the four oceanfront lots forming most of the Subject Parcel. Thus, the additional protection in the County's plan for the Coastal High Hazard Area contributes to a finding of internal inconsistency. The County's plan permits a density of 30 dwelling units per acre and, most likely, no more than 15 hotel/motel rooms per acre. The City's plan permits the same density for dwelling units, but 45 hotel/motel rooms per acre. 12/ Thus, even if the County's plan permitted 30 boardinghouse or bed and breakfast rooms per acre, the effect of the plan amendment is to increase the density on the Subject Parcel by at least 15 rooms per acre. As noted above, because neither plan itself prohibits development in the Coastal High Hazard Area, which consumes much of the Subject Parcel, it is impossible to assume that all development of the Subject Parcel necessarily will take place outside the Coastal High Hazard Area. Thus, the lower densities permitted in the County's plan for development in the Coastal High Hazard Area contributes to a finding of internal inconsistency. Consistency with Regional Plan As to Issue 26, it is fairly debatable that the plan, as amended, is consistent with Policies 40.6 and 64.12 of the Regional Plan. Regardless of the effectiveness of any coastal setback provisions in the City's plan, other provisions specifically protect the coastal beach and dune system addressed by Policy 40.6. Consistency with State Comprehensive Plan As to Issue 27, it is fairly debatable that the plan, as amended, is consistent with Section 187.201(9)(a) and (b), (10)(b)3., and (16)(b)1. Consistency with Section 187.201(9)(a) is based upon consideration of the state comprehensive plan as a whole.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for lack of planning jurisdiction and internal inconsistency between the plan amendment and Conservation Objective 14. ENTERED this 4th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1991.
Findings Of Fact The Respondent is an agency of the State of Florida. The Respondent has adopted a "Departmental Forms Index", which, if it ultimately becomes effective, would be codified into Chapter 10-2.80, Florida Administrative Code. The proposed rule purports to set out a list of all forms used by the Respondent in its dealings with the public. By its terms, the rule will not be published in the Florida Administrative Code. Instead, the index would be referenced in the Code as follows: The Departmental Forms Index is hereby incorporated by this rule and made a part of the rules of the Department. Copies of this document and any amendments thereto are available at no more than cost pursuant to the Florida Administrative Code 10-2 and may be obtained from the Office of Assistant Secretary for Administrative Services. The complete Departmental Forms Index would thus not appear in the Florida Administrative Coda. Copies of the index could be obtained from the Department by request at a cost of ten cents per page. The Index would not otherwise be available to members of the public, and no general distribution of the proposed rule will be made. The Petitioner, Norma Richardson, is a recipient of benefits under the "Aid to Families with Dependent Children" program and the food stamp program. Both of these programs are administered by the Respondent. Forms are routinely used in the Respondent's dealings with the Petitioner Richardson. Forms are utilized to advise her of any action intended by the Respondent, to solicit information, to apply for further benefits, and for many other purposes. As a recipient of benefits under the programs, the Petitioner Richardson has an interest in having the Forms Index available to her. If the Forms Index were published in the Florida Administrative Code she could obtain access to it at various libraries. If the Index is published by reference, obtaining access to it would be more difficult, and, could cost her ten cents per page. The Petitioner Florida Project Directors Association is an association composed of the directors of legal services programs in Florida. The Association has represented its members in this proceeding. The Association, and its members, are subscribers to the Florida Administrative Code. The Association's members represent many persons in connection with welfare disputes with the Respondent. The Departmental Forms Index contains forms which the Association's members would need to utilize in representing its clients. If the Index were published in the Florida Administrative Code, the Association's members would have the Index available to it, and any amendments to the Index would regularly be distributed. If the Index is published only by reference, the Associations members would need to purchase copies from the Respondent, and would not regularly receive amendments without making specific requests therefor and paying for them. It is not a matter of mere speculation that the Association's members will be representing clients who have disputes with the Respondent. One of the Association's members, Legal Services of Greater Miami, Inc., employs forty lawyers and several paralegals, and has represented welfare recipients in many cases.
