Findings Of Fact Parties Petitioners Austin, Houston, and Dorn all reside in the City of Cocoa (Cocoa or City). Petitioners Hendry both reside in Cocoa. The Department of Community Affairs (DCA) is the state land planning agency under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Act). Cocoa is located entirely within Brevard County, which is within the jurisdiction of the East Central Florida Regional Planning Council (the Regional Planning Council). The resident population of Cocoa is presently about 18,000 persons. The City encompasses over 4500 acres and abuts the Indian River, which is also identified as the Indian River Lagoon. Preparation of Proposed Plan By Ordinance 6-86, which was adopted on March 25, 1986, the Cocoa City Council designated the Cocoa Planning and Zoning Board as the local planning agency under the Act. The Planning and Zoning Board thereby became responsible for preparing the Cocoa comprehensive plan required by the Act (the Plan), conducting public hearings on the Plan, and recommending the Plan to City Council for adoption. In February, 1987, Cocoa entered into a contract with the Regional Planning Council for assistance in preparing the Plan. Pursuant to the contract, the Regional Planning Council drafted all elements of the Plan except the Potable Water Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which CH2M Hill prepared; the Wastewater Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which Camp, Dresser and McKee prepared; and the Solid Waste Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which the City prepared. On November 7, 1987, a 4 1/4" by 3" display advertisement in the Florida Today newspaper announced that Cocoa had begun to prepare an update of its comprehensive plan in conformance with the 1985 Local Government Comprehensive Planning and Land Development Act. The advertisement stated that the preparation of the update "will have the effect of regulating the use of lands within the municipal limits of the City of Cocoa." The advertisement advised that copies of documents prepared during the updating process would be on file in the City's Community Improvement Department. The advertisement added that the public would be informed of public meetings through the news media and bulletins posted at City Hall. The Florida Today newspaper is a standard-sized newspaper of general paid circulation in Brevard County and of general interest and readership in Cocoa. The newspaper is published at least five times a week. All advertisements described herein appeared in the Florida Today newspaper and adequately identified the location of the advertised meeting or documents. On November 17, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on November 18, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Traffic Circulation and Recreation and Open Space Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On November 18, 1987, the Planning and Zoning Board conducted a public hearing on the Traffic Circulation and Recreation and Open Space Elements. On November 28, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on December 2, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Housing and Conservation Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On December 2, 1987, the Planning and Zoning Board conducted a public hearing on the Housing and Conservation Elements. There is some evidence to suggest that discussion of the Conservation Element was carried over to the next regularly scheduled meeting of the Planning and Zoning Board on December 9, 1987. On January 9, 1988, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on January 13, 1988, at 5:15 p.m. for the purpose of discussing the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On January 13, 1988, the Planning and Zoning Board conducted a public hearing on the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. On February 25, 1988, a 1 1/4" by 5 3/4" classified-type advertisement announced meetings of the Planning and Zoning Board on March 9, 1988, at 5:15 p.m. and the City Council on March 22, 1988, at 7:00 p.m. for the purpose of hearing all interested persons on the Future Land Use and Capital Improvements Elements of the Plan. The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department. The record is unclear as to whether these meetings took place, although the Planning and Zoning Board met on March 23, 1988, and discussed the Future Land Use, Intergovernmental, and "Capital Facilities" Elements, as well as the "Sanitary Sewer" Subelement of the Public Facilities Element. On March 28, 1988, a 4 1/4" by 3" display advertisement described the planning process in the same manner as did the November 7 display advertisement. The March 28 advertisement announced that the Planning and Zoning Board and City Council would hold joint workshops on March 29, 30, and 31, 1988, at 5:15 p.m. to discuss "public facilities, coastal management, housing, transportation, recreation and open space, intergovernmental coordination, capital improvement and future land use elements." The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department. The record is unclear as to whether these meetings took place as scheduled, although, at minimum, it appears that the March 29 meeting took place. On April 23, 1988, at 5:15 p.m., the Planning and Zoning Board commenced a special meeting with the following persons present: six members and the chairman of the Planning and Zoning Board, four members of the City Council and the Mayor, the City Manager and Assistant City Manager, the Community Improvement Administrator, a City planner, and four representatives of the Regional Planning Council. The purpose of the meeting was to consider the Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination, and Capital Improvements Elements of the Plan. The Future Land Use Element was unavailable, so the City Council postponed the discussion of this element until a later date. At the April 13 meeting, Rochelle Lawandales, the Community Improvement Administrator, stated that no formal action would be taken at the workshop, but that the Plan would go before the City Council on April 26, 1988, at 7:00 p.m. during a public hearing. At the conclusion of the April 26 hearing, the City Council would be expected to authorize staff to submit the Plan to DCA. The April 13 meeting was adjourned at 8:05 p.m. On April 19, 1988, at 5:15 p.m., the Planning and Zoning Board began a special meeting with largely the same persons who attended the April 13 meeting. The purpose of the meeting was to discuss the Future Land Use Element and Future Land Use Map. The discussion culminated in the consensus that the Planning and Zoning Board would recommend that the City Council transmit the Plan to DCA. The meeting adjourned at 6:55 p.m. Transmittal of Proposed Plan to DCA On April 19, 1988, a 6 1/2" by 10 1/2" display advertisement with a large-type headline appeared on page 5 of Section B of the newspaper. The advertisement, which was in the form prescribed by Section 163.3184(15)(c), Florida Statutes, announced that the City Council proposed to change the use of land within the City and that on April 26, 1988, at 7:00 p.m. the City Council would conduct a public hearing on the Plan proposed to be sent to DCA (Proposed Plan). The advertisement contained a large map of Cocoa with major street names indicated, listed the nine major elements of the Proposed Plan, and advised that interested persons could submit written comments or attend the public hearing to be heard regarding the transmittal of the Proposed Plan to DCA. The advertisement stated that the City Council would not give final approval to changes proposed at the hearing, which was described as part of the process designed to lead to the eventual adoption of the Plan. On April 26, 1988, the City Council conducted a public hearing. Following receipt of public comment, which was relatively limited, Mayor Dollye Robinson closed the public hearing, and the City Council unanimously approved Resolution No. 88-17, which authorizes the transmittal of the Proposed Plan to DCA. On May 1, 1988, DCA received the City of Cocoa-- Comprehensive Plan, which consists of two volumes. Volume I is Background Analysis. Volume II is Goals, Objectives, and Policies. DCA also received a document containing population estimates for Cocoa and an Evaluation and Appraisal Report (EAR), dated April, 1988, assessing the performance of the Cocoa comprehensive plan adopted under the Local Government Comprehensive Planning Act of 1975. (The Proposed Plan and Plan are unrelated to the comprehensive plan assessed in the EAR.) On May 8, 1988, a 4 1/4" by 3" display advertisement announced that the Proposed Plan and supporting documentation were available for review at the public library and city hall. Proposed Plan: Goals, Objectives, and Policies General The Act requires that each comprehensive plan contain eight or nine major elements: Capital Improvements; Future Land Use; Traffic Circulation; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge (identified as the Public Facilities Element in the Proposed Plan and Plan); Conservation; Recreation and Open Space; Housing; Intergovernmental Coordination; and, if applicable, Coastal Management. Each element comprises goals, objectives, and policies, which respectively represent long-term ends, criteria by which progress toward the goals can be measured, and programs and activities by which the goals are to be achieved. The goals, objectives, and policies in the Proposed Plan are largely carried over to the Plan. Future Land Use Element and Map The Proposed Plan contains two objectives under the Future Land Use Element. They are: Objective 1.1: Future growth and development will be managed through the preparation, adop- tion, implementation and enforcement of land development regulations. Objective 1.2: Future development and redevel- opment activities shall be directed in appro- priate areas as depicted on the Future Land Use Map, consistent with sound planning principles, minimal natural constraints, and the goals, objectives, and policies provided in the . . . Plan. Policy 1.1 of the Future Land Use Element provides in part: The City will adopt land development regula- tions that shall contain specific and detailed provisions required to implement the . . . Plan and which: * * * Regulate the use of land and water consis- tent with this element and ensure the compati- bility of adjacent land uses and provide for open space; Protect the wetland areas identified in the conservation element and future land use element; Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management; * * * H) Provide that development orders and permits shall not be issued which would result in a reduction of the adopted level of service standards. The Future Land Use Map, which is part of the Proposed Plan, depicts eight land use categories: low-, medium-, and high-density residential, commercial, industrial, institutional, open space and recreational, and activity center. Policy 1.2 specifies a maximum density of seven units per acre for low- density residential and 15 units per acre for medium-density residential. The Future Land Use Map in the Proposed Plan depicts four large parcels as open space. These are north of Michigan Avenue, just west of U.S. Route 1; south of Michigan Avenue, just west of U.S. Route 1; north and west of the intersection of Michigan Avenue and Range Road; and east of the north end of Range Road and west of the largest unincorporated enclave surrounded by the City. According to the two Existing Land Use Maps contained in the Background Analysis, which is described in Paragraphs 47-67 below, the four large parcels designated as open space on the Future Land Use Map are wetlands, except for a small strip that is probably a park and is described further in Paragraph 127 below. The four open spaces constitute nearly all of the existing wetlands in the City. Neither the Future Land Use Map in the Proposed Plan nor either of the Existing Land Use Maps in the Background Analysis depicts any historical resources. Housing Element The Housing Element of the Proposed Plan contains the following provisions with respect to historic properties: Objective 3.1.4: Housing designated histori- cally significant will continue to be preserved and protected, and the quality of existing homes and neighborhoods will be maintained or improved. Policy 3.1.4.4: Assist owners of designated historically significant housing to apply for and utilize state and federal assistance programs. Policy 3.1.4.7: The City will aid in the identification of historically significant housing and structures. Public Facilities Element The Public Facilities Element of the Proposed Plan provides the following level of service standards for drainage: design storm event--five year frequency/24-hour duration event; on-site stormwater management--retention of first one inch of rainfall runoff or, with respect to drainage areas under 100 acres with under 80% impervious surface, retention of first one-half inch of runoff; stormwater quantity--no greater than pre-development stormwater runoff flow rates, quantities, peaks, and velocities; and stormwater quality--no degradation of existing water quality condition in receiving water bodies. The Drainage Subelement of the Public Facilities Element of the Proposed Plan contains seven objectives. Three of the objectives focus upon floodplains and wetlands: Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development. Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establish- ment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems. Objective 4.3.7: To ensure that proper and adequate surface water management facilities are provided in response to identified needs. Several policies under Objectives 4.3.5, 4.3.6, and 4.3.7 describe the data still needed by the City to determine its drainage needs and the means by which Cocoa intends to attain the overall goals of the subelement: Policy 4.3.2.5: Efforts will be undertaken to eliminate existing points of direct stormwater discharge into receiving surface waterbodies, where possible, based on the following procedure: engineering studies will be initiated for the purpose of identifying the comparative nonpoint pollution impacts of each direct discharge point, and determining relative priorities for corrective actions (or "retrofit" projects) to be undertaken, based on the extent of-- --adverse impacts on entire receiving waterbody --system retrofitting required to eliminate or minimize the adverse impacts --projected benefits to be accomplished --overall implementation feasibility facility design studies will be initiated for those direct discharge points determined to have the highest priority. The estimated costs of individual corrective action projects will be included as components of the Capital Improvements Program. Policy 4.3.5.2: Drainage needs assessment investigations will be initiated for areas within the City which have been identified as experiencing flooding problems, for the purpose of identifying actions necessary to alleviate the problems. Policy 4.3.5.3: Based on the findings of the drainage needs assessment investigations, engineering studies will be initiated to develop solutions to the identified flooding problems, with the cost estimates being included in the Capital Improvements Program. Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, with appropriate measures being taken to discourage development in affected wetland areas. Policy 4.3.6.2: The City will review its land development and zoning ordinances, regulations and standards with the intent being to remove any requirements which might encourage develop- ment in wetland areas. Policies 4.3.7.1 and 4.3.7.2 promise an inventory of Cocoa's surface water management system followed by an engineering study of the system components to identify the extent of excess or deficient surface water flow or storage capacity. The final policy in this subelement states: Policy 4.3.7.9: Flood control for new develop- ment will be accomplished through the limita- tion of fill in the 100-year floodplain. In cases where there are no alternatives to fill in the floodplain, compensatory storage for such fill will be provided through excavation in adjacent upland areas (above the 100-year floodplain) of a volume equivalent to the loss of storage within the 100-year floodplain resulting from the placement of fill, where such compensatory storage can be accomplished in an environmentally sound and economically feasible manner. Coastal Management Element The Coastal Management Element of the Proposed Plan does not refer to coastal wetlands or historic resources. It does not contain any analysis of the effects on estuarine water quality of existing drainage systems and nonpoint source pollution such as that carried by stormwater runoff. Conservation Element The Conservation Element of the Proposed Plan contains nine subelements. Several of these subelements contain objectives or policies addressing wetlands, floodplains, and stormwater drainage. The Vegetation and Wildlife Habitat Subelement of the Conservation Element provides: Policy 6.4.2: Areas of natural habitat within the 100 year floodplain shall be given priority consideration in the identification of lands which address passive recreational demand and open space objectives. Policy 6.4.3: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain. Policy 6.4.7: The City shall not approve any development which would significantly and adversely alter the ecological functions of freshwater wetlands or deepwater habitat. Ecological functions include: (a) provision of wildlife and fisheries habitat; (b) main- tenance of in-stream flows and lake levels during periods of high and/or low rainfall; (c) erosion control; and (d) water quality enhancement. The Fisheries and Estuarine Habitat Subelement of the Conservation Element provides: Objective 6.5: The City shall protect the ecological well being of the Indian River Lagoon from adverse activities or impacts, so as to maintain or enhance the abundance and diversity of estuarine habitat and species. Policy 6.5.2: The city shall establish site design standards and regulations for the control of stormwater runoff to insure the adequate treatment of stormwater from all new development or redevelopment prior to its discharge to surface waters. Policy 6.5.3: The City shall take steps to identify means for reducing the volume of untreated stormwater discharged to surface waters, and shall develop a program to take corrective action, to the greatest extent feasible. The Water Quality Protection Subelement of the Conservation Element contains similar provisions with respect to the control of stormwater runoff and development of corrective programs. The Floodplain Management Subelement of the Conservation Element states: Objective 6.8: The City shall protect the flood storage and conveyance functions of the 100 year floodplain. Policy 6.8.1: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain. Policy 6.8.2: Developers shall be encouraged to incorporate those portions of sites which are within the 100 year floodplain as open space preservation. Policy 6.8.3: The City shall promote wetlands preservation and non-structural floodplain management by encouraging the use of isolated wetlands as detention areas, where such use is consistent with good engineering practice and does not significantly degrade the ecological value of wetlands. Pre-treatment of stormwater runoff by diversion of the "first flush" shall be required prior to discharge to wetland detention areas. Policy 6.8.4: The City shall encourage public and private agencies . . . in acquiring floodplains. Recreation and Open Space Element The Recreation and Open Space Element of the Proposed Plan provides: Goal 7.2: Ensure the conservation of open space areas in the City to provide aesthe- tically pleasing buffer areas, to serve as wildlife habitats, to act as groundwater recharge areas, to give definition to the urban area, and to enhance and promote natural resources. Policy 7.2.1.2: Designate conservation areas within the City as part of the future land use map in order to preserve open space and fulfill objectives discussed in this element and the Conservation Element. Capital Improvements Element The Capital Improvements Element of the Proposed Plan provides: Objective 9.1: The Capital Improvements Element will establish adopted levels of service for public facilities and capital improvement projects which the City will undertake. The Five-Year Schedule of Improvements will identify projects which a) meet existing deficiencies; b) provide repair or replacement of existing facilities; [and] c) accommodate desired future growth. Objective 9.2: All land use decisions which impact the Capital Improvements Element or Future Land Use Element will be coordinated by the City Manager, or his designee, in conjunction with the City's Planning and Zoning Board, and approved by City Council. Objective 9.3: Annual review of the Capital Improvements Element will be included in the City's budget process. As part of this review the Finance Department shall be responsible for: (1) addressing the fiscal impact of capital improvement projects on revenue and expenditures, and (2) updating the fiscal assessment section of the Capital Improvements Element. Objective 9.4: Public facility improvements that are needed to support new growth will maintain adopted levels of service. Improve- ments to public facilities which result from the impact of new development will require equitable cost participation by the developer. Policy 9.4.1: The City Manager shall initiate impact analysis of proposed development projects to determine the impact of the development on the City's fiscal operations and LOS [i.e., levels of service] for public facilities. Objective 9.5: The City will not approve development which requires public facility improvements that exceed the City's ability to provide these in accordance with the adopted LOS standards. Policy 9.5.1: Before a development is approved, the City Manager or his designee will determine that any needed public facility improvements do not exceed the City's funding capacity. Policy 9.5.2: Development approved prior to the adoption of this Plan which requires improvements to public facilities will be included in the Five-Year Schedule of Improvements with a funding priority designation. The Five-Year Schedule of Capital Improvements in the Proposed Plan includes only four projects: ongoing resurfacing and repair of roads, possible four-laning one specific road, expanding the wastewater treatment plant, and extensive, detailed work to the potable water system. I. Monitoring and Evaluation Provisions regarding Monitoring and Evaluation follow the goals, objectives, and policies in Volume II of the City of Cocoa--Comprehensive Plan. Concerning the public participation requirement, this section states in relevant part: In cases in which the proposed ordinance deals with more than five percent (5%) of the total land area of the municipality the council shall provide for public notice and hearings as follows: The council shall hold two (2) advertised public hearings on the proposed ordinance. Both hearings shall be held after 5:00 p.m. on a weekday and the first shall be held approxi- mately seven (7) days after the day that the first advertisement is published. The second hearing shall be held approximately two (2) weeks after the first hearing and shall be advertised approximately five (5) days prior to the public hearing. The day, time and place at which the second public hearing will be held shall be announced at the first public hearing. [This section is virtually identical to the language contained in Section 163.3184(15)(c), Florida Statutes.] [This section allows notice by mailing instead of advertising.] (Laws of Fla., Ch. 59-1186, Art. V, Section 9; Ord. No. 4-80, Section, [sic] 4-8-80) Proposed Plan: Background Analysis Future Land Use Element and Map The Future Land Use Element of the Background Analysis explains the purpose of the Future Land Use Map: The future location and distribution of land use are shown on the Future Land Use map. This map identifies appropriate types of land uses if all vacant land were to be utilized within the ten year planning horizon. Once the Future Land Use map is adopted, all development regulations in effect subsequent to its adoption must be consistent with it. Land development regulations in particular, shall rely on the map for their rational basis. (Future Land Use Element, Background Analysis, p. 1-3.) The Future Land Use Element of the Background Analysis states that the existing land use in Cocoa in 1987 includes about 389 acres of wetlands, or 8.6%, out of a total of 4520 acres. (Future Land Use Element, Background Analysis, Table 1-2.) Public Facilities Element The Drainage Subelement of the Public Facilities Element of the Background Analysis describes Cocoa's drainage as flowing equally into two waterbodies: the Indian River Lagoon on the east and the St. Johns River on the west. Of the five main drainage areas within Cocoa, three are part of the Indian River Lagoon Watershed and two are part of the St. Johns River Watershed. The map of Drainage Areas/Facilities, which is part of the Drainage Subelement, depicts each of the five drainage areas. Drainage Area III is bounded on the east by the high relict dune line just east of U.S. Route 1, on the west by Clearlake Road, on the south by Dixon Boulevard, and on the north by a low ridgeline in the vicinity of Industrial Park Road. Drainage Area III encompasses the wetlands bisected by Michigan Avenue, just west of U.S. Route 1. These wetlands, which are about 3000 feet from the Indian River, are part of a series of linear marshes running north-south and representing the "major repository" of stormwater drainage from contributing portions of Drainage Area The Background Analysis reports that these marshes function effectively as a surface water management area. Although on the landward side of the dune line, Drainage Area III is within the Indian River Lagoon Watershed because excess water in the area reverse flows into the lagoon during periods of very wet weather. According to the map of Vegetative Cover and Wildlife in the Background Analysis, seagrasses cover either the southeastern portion of the open space/wetlands south of Michigan Avenue or the adjacent land designated as medium-density residential. Noting historical encroachment on these wetlands, the Background Analysis concludes that continued encroachment will reduce the size of the storage capacity and increase the likelihood of outflow into the Indian River Lagoon. Drainage Area IV includes the wetlands found between the north end of Range Road and the largest unincorporated enclave within the City. These wetlands, which drain into the St. Johns River, are the site of Little Mud Lake. According to the Water Quality Protection Subelement of the Background Analysis, Little Mud Lake is largely a willow marsh with little or no open water. What water remains is probably of poor quality. However, the Background Analysis observes that the lack of adequate water quality data for all waterbodies in the City is itself a problem. Drainage Area V includes the largest contiguous wetlands within the City, which is the area north and west of the intersection of Michigan Avenue and Range Road. This area, which drains into the St. Johns River, surrounds Big Mud Lake, whose water quality is probably in poor condition, according to the Background Analysis. The Drainage Subelement of the Background Analysis acknowledges that the surface drainage systems for Cocoa have not been comprehensively inventoried since June, 1968. However, Drainage Area III is known to contribute about 29% of the stormwater runoff-generated pollutant loadings from the City to the Indian River Lagoon in the vicinity of the City. Although the wetlands serve as natural treatment and storage units, "[t]he continued loss of wetland areas will result in a corresponding decline in the overall effectiveness of the remaining wetlands to remove pollutants." (Drainage Subelement, Background Analysis, p. 4-30.) By way of comparison, Drainage III loads the Indian River Lagoon in the vicinity of the City with more than double the poundage of suspended solids than does the Jerry Sellers wastewater treatment plant in Cocoa. As to Drainage Area V, the Drainage Subelement warns that the salutary effect of Big Mud Lake, which serves as a natural treatment unit for stormwater pollutants, will be lost once the lake reaches its assimilative capacity to absorb or fix incoming loads of pollutants. According to the Water Quality Subelement of the Background Analysis, Big Mud Lake is probably eutrophic and "reduction of stormwater pollution . . . is probably the only means to restore [it]." (Water Quality Protection Subelement, Background Analysis, p. 6-62.) The Drainage Subelement concludes, however, that the impact of stormwater runoff-generated loadings is not expected to increase significantly and may even be reduced due to stormwater treatment requirements and stormwater retrofitting projects. However, existing stormwater treatment facilities serve only about 5.5% of the land area within the City, which depends heavily upon existing natural treatment systems for the management and control of stormwater problems. The Drainage Subelement offers 13 recommendations. Four of the first five recommendations suggest an inventory of existing stormwater drainage systems, evaluation of the effectiveness of current strategies, and projection of the impact of future growth on flow volumes. The fourth recommendation reads: Efforts should be undertaken to ensure the protection and preservation of existing wetlands in Drainage Areas #3, 4 and 5, with a priority being placed on the wetlands in Drainage Area #3. Applicable actions include modifications to existing zoning classifica- tions and provisions, land development regu- lations, stormwater, runoff treatment requirements, and other regulatory measures, as well as the possible acquisition of conservation or drainage easements in the wetland areas. (Drainage Subelement, Background Analysis, p. 4-37 and 4-38.) The Floodplain Management Subelement of the Conservation Element of the Background Analysis defines floodplains as those areas that become inundated by water on a recurring basis. The 100 year floodplain is an area that stands a 1% chance in any year that it will be subject to such inundation. The subelement notes that the addition of fill in the floodplains may raise flood elevations to an extent that flooding results to structures previously thought to be outside the floodplain. According to the Floodplain Management Subelement, 745 acres or 16% of the area of the City is located within the 100 year floodplain. Only 66 acres or about 9% of these floodplains are currently developed. Wetlands occupy 120 acres or 16.1% of the 100 year floodplain in the City. In assessing the future needs of Cocoa with respect to floodplains, the Floodplain Management Subelement expressly assumes that the "areas currently supporting open water or wetlands are clearly safe from development." (Floodplain Management Subelement, Background Analysis, p. 6-72.) This subelement concerns itself with the "several adverse consequences" of the development of the remaining 510 acres of undeveloped wetland upland within the 100 year floodplain. The Background Analysis warns that development within the 100 year floodplain "would be dependent upon the proper functioning of all drainage systems needed to overcome soils limitations" or else less severe storm events might result in recurrent flooding. Id. The Floodplains Subelement concludes that adverse consequences, such as flooding existing homes, can best be avoided by "limiting any development which requires the placement of fill" and encouraging the use of nonwetland upland floodplains as open space. Again concerning itself exclusively with nonwetland uplands within the 100 year floodplain, the subelement recommends "minimal development, such as very low density single family homes," to avoid future infrastructure problems due to flooding existing structures. (Floodplain Management Subelement, Background Analysis, p. 6-73.) Recreation and Open Space Element The Recreation and Open Space Element of the Background Analysis acknowledges that lands designated as open space may include wetlands. Conservation Element The Fisheries and Estuarine Subelement of the Conservation Element describes the Indian River Lagoon as a tidal estuary, whose brackish waters are an important resource for commercial and recreational fishing. The subelement notes that considerable amounts of seagrass cover have been lost, presumably due to human-induced environmental changes. One of the causes of the loss of seagrasses, which are a crucial component in the ecological food web of the estuary, is the discharge of inadequately treated stormwater. The Fisheries and Estuarine Subelement concludes that the pollutant discharges, which include stormwater, must be "reversed" if the estuarine resources are to be "maintained." The subelement contains a recommendation that existing drainage systems be improved and projects feasible only through dredging and filling of wetlands be prohibited, except for projects of overriding public interest. (Fisheries and Estuarine Subelement, Background Analysis, p. 6-50.) Coastal Management Element The Coastal Resources Subelement of the Coastal Management Element of the Background Analysis defines the coastal area for the subelement as the entire City. (Coastal Resources Subelement, Background Analysis, p. 5-5.) The subelement reports that shellfish were once harvested commercially through the entire Indian River Lagoon. However, due to the effects of urban and agricultural development, shellfish harvesting in the lagoonal waters adjacent to Cocoa is either restricted or prohibited. The subelement notes that the manatee, which is the only endangered mammal regularly inhabiting the Indian River, suffers from the loss of seagrasses, upon which the manatee grazes. The Coastal Resources Subelement states that the Indian River Lagoon receives little tidal flushing due to its distance from Sebastian Inlet. Thus, whatever pollutants are discharged into the lagoon remain indefinitely. In general, the water quality of the lagoon, according to one source cited in the Background Analysis, ranges from fair to poor. According to another source cited in the Background Analysis, the water quality is poor. The subelement reports that, by November, 1988, Cocoa was projected to complete the expansion of the Jerry Sellers wastewater treatment plant, whose effluent flows into the lagoon. The expansion was to increase the capacity of the plant by 80% of its present capacity. (Coastal Resources Subelement, Background Analysis, p. 5-10.) The Coastal Resources Subelement discloses that the Indian River Lagoons Field Committee was commissioned in 1985 to assist in the preparation of an integrated management plan for the lagoon, which extends over 156 miles through five counties and 40 municipalities. One of the committee's general recommendations is that local governments should include in their comprehensive plans the committee's recommendations for floodplain and critical area protection. (Coastal Resources Subelement, Background Analysis, p. 5-34.) Objections, Recommendations, and Comments of DCA Findings of Other Agencies Upon receipt of the Proposed Plan and supporting documents, DCA distributed them to various state, regional, and local agencies for comment, as part of the intergovernmental review process mandated by Section 163.3184(4) and (5), Florida Statutes. The Act gives these agencies 45 days within which to send their comments to DCA, which has an additional 45 days within which to transmit its objections, recommendations, and comments (ORC) to the local government submitting the plan. In the present case, DCA received responses from the Divisions of State Lands and Resource Management of the Department of Natural Resources (DNR); Comprehensive Planning Division of Brevard County; Regional Planning Council; Bureau of Historic Preservation of the Division of Historical Resources of the Department of State (the Department of State); Planning Department of the St. Johns River Water Management District (the Water Management District); Bureaus of Air Quality, Wastewater Management and Grants, Groundwater Protection, and Waste Planning and Regulation and Sections of Coastal Management and Drinking Water of the Department of Environmental Regulation (DER); Game and Fresh Water Fish Commission; and District 5-- Division of Planning and Programming of the Department of Transportation. DNR commented upon Policy 1.1.C, which as noted above in Paragraph 28 above provides that the City will adopt land development regulations to protect the wetlands identified in the Conservation and Future Land Use Elements. DNR stated that the policy "needs to project a long-term land use program to insure the protection of natural resources." DNR objected that the Coastal Management Element "contains no goal or objective addressing the protection, conservation, or enhancement of remaining coastal wetlands, living marine resources, . . . wildlife habitat, or the maintenance or improvement of estuarine environmental quality." The Regional Planning Council reported that Objective 6.4 in the Conservation Element lacks policies addressing the need to protect upland habitat adjacent to regionally significant wetlands, as required by Policy 43.8 in the plan of the Regional Planning Council. In a letter signed by Secretary of State Jim Smith, the Department of State determined that the Proposed Plan was inconsistent with the historic preservation aspects of the state comprehensive plan and failed to meet the requirements of the Act "regarding the identification of known historical resources . . . and . . . establishment of policies, goals, and objectives for historic preservation." The Department of State stated that Objective 3.1.4 of the Housing Element, which is quoted in Paragraph 33 above, lacks a specific plan of action for achieving its stated goal of preserving housing designated as historically significant. The Department of State faulted the Coastal Management Element for its failure to mention historical structures or archaeological sites and the Future Land Use Element and Map for their omission of known historical resources. The Water Management District stated that the Proposed Plan is "deficient with respect to water-related goals, objectives and policies required by Chapter 9J-5." With respect to the Future Land Use Element, the Water Management District noted the absence of objectives to ensure the protection of natural resources and policies to provide for drainage and stormwater management. The Water Management District found several items missing from the Coastal Management Element. These items included an inventory of the effect of the future land uses on natural resources; objectives protecting coastal wetlands, resources, and habitats; objectives addressing estuarine environmental quality; policies limiting the impacts of development upon wetlands; and policies identifying techniques for the protection of the Indian River Lagoon. The Water Management District concluded that this element did not appear to follow the requirements of Chapter 9J-5 as closely as did the other elements of the Proposed Plan. The Water Management District also objected to the Conservation Element on the grounds that it lacked specificity for the protection of existing natural resources and time frames for the treatment of untreated stormwater discharges, fisheries, wildlife, and wildlife habitats. DER commented generally that the Proposed Plan "appears to have important weaknesses." Referring to the Future Land Use and Capital Improvements Elements, DER noted the need for a number of studies regarding drainage, but the absence of any funds allocated for this purpose. DER also commented generally that "much of the work that identified potential areas for conservation, such as mapping the areas subject to flooding and areas with poor soil suitability or wetlands, was not carefully incorporated into the Future Land Use Element." DER objected that the Future Land Use Element is not based upon analyses of the effect of development and redevelopment of flood-prone areas and the character and magnitude of existing vacant or undeveloped land to determine its suitability for use. DER stated that the Future Land Use Element insufficiently analyzes the wetlands and floodplains identified elsewhere in the Proposed Plan. Findings of DCA General On August 5, 1988, DCA mailed to Cocoa the ORC, which contained 139 objections, the above-described objections and comments of the other state, regional, and local agencies, and general background information concerning the Act and the planning process. The ORC explains that objections relate to specific requirements of the Act or Chapter 9J-5. Each objection includes a recommendation of "one approach that might be taken" to address the objection. A comment is advisory in nature and does not form the basis of a determination of noncompliance. The ORC states that the City's public participation procedures are in violation of Rule 9J-5.004(2)(c) and (e). The objections states that the procedures lack provisions to assure that the public has opportunities to provide written comments and would receive responses to their comments. The ORC recommends that the City revise the procedures to include the necessary provisions. The ORC states that the format of the goals, objectives, and policies are in violation of Rules 9J-5.003(32), (57), and (64) and 9J-5.005(6). The objection states: Goals which do not state a long-term end towards which programs or activities are directed are not acceptable. Objectives which are not measurable, not supported by the data and analysis and are stated in an unspecific, tentative and/or conditional manner are unacceptable. Policies which are tentative or conditional, or do not describe the activities, programs and land development regulations which will implement the plan, are unacceptable. The accompanying recommendation adds: A goal must be written to state a long-term desired result [citation omitted]. Objectives must be written in a way that provides specific measurable intermediate ends that mark progress toward a goal [citation omitted]. A measure such as a quantity, percentage, etc. and a definite time period for its accomplishment should be included in the objectives. Policies answer the question of "how" by specifying the clearly defined actions (programs and activities) local governments will take to achieve each objective and ultimately the identified goal [citation omitted]. If desired, local governments may choose to assign the measurability to a policy . . .. [DCA] is primarily concerned that local governments provide the basis for assessing the effectiveness of their plan. When writing objectives and policies, avoid vague words and phrases (e.g., "adequate," "sufficient," "minimize," and "adverse impacts"), terms which nullify the strength of the statement (e.g., "consider" or "encourage"), or advisory words. "Should" implies an advisory statement which is inappropriate in an adopted portion of the plan. Using the term "shall" provides direction in implementing the plan and will make later evaluation and update of the plan an effective process. . . . The use of words like "ensure" and "encourage" leaves the what and how questions unanswered. [A]n objective cannot be phrased to "maintain or improve," one or the other actions might be set as an objective, but not both. Objectives and policies which are written using phrases such as "if needed," "whenever possible" and "where feasible and appropriate," or other vague words or phrases make the statements unacceptable because the conditional criteria making them specifically operational, have not been stated. 2. Future Land Use Element and Map Included in the background information accompanying the ORC is the following statement from DCA concerning the purpose of the future land use element: The purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of all the comprehensive plan elements. Depicting the future land use patterns on the future land use map serves to (1) anticipate and resolve land use compatibility issues, and (2) provide the information necessary to determine the needed location and capacity of public facilities. (Major Issues--Local Government Comprehensive Planning, p. 3.) The ORC contains three objections and recommendations with respect to the data and four objections and recommendations with respect to the analysis contained in the Future Land Use Element of the Background Analysis. These objections cover the failure of both Existing Land Use Maps to depict natural and historic resources, which is in violation of Rule 9J-5.006(1)(a)6. and 11. The ORC contains seven objections and recommendations with respect to the goals, objectives, and policies under the Future Land Use Element of the Proposed Plan and three objections and a comment with respect to the Future Land Use Map. Two of the objections pertain to the two objectives of the Future Land Use Element. These objections, which are recited above in Paragraph 27, generally provide for the management of future growth through the implementation of unspecified land development regulations and require the direction of future development and redevelopment into appropriate areas as depicted on the Future Land Use Map. The ORC states that these objectives are unmeasurable and unsupported by the data and analysis in the Background Analysis, which is in violation of Rule 9J-5.005(3)(b). Another objection is that the Future Land Use Element of the Proposed Plan lacks objectives addressing the requirements set forth in the following rules: Rules 9J-5.006(3)(b)1.-8. These rules require, among other things, the coordination of future land uses with the appropriate topography, soil, conditions, and availability of facilities and services; and the protection of natural and historic resources. DCA also objects in the ORC to Policy 1.1, which is recited at Paragraph 28 above and calls for land development regulations protecting wetlands and regulating areas subject to flooding, among other items. The ORC states that Policy 1.1 fails to satisfy the definition of a policy set forth in Rule 9J-5.003(64) because it fails to specify how the programs and implementation activities would be conducted. The ORC asserts that Policy 1.1 is unsupported by the necessary data and analysis, in violation of Rules 9J-5.005(1)(a)6. and 10., 9J-5.005(1)((b)3. and 4., and 9J-5.005(2)(a). The missing data and analysis include: the uses of conservation and undeveloped land; the presence on existing land use maps of wetlands and floodplains; and the availability of any facilities and services, as identified in the Drainage Subelement, to serve existing land uses. The ORC states that the Future Land Use Element lacks policies addressing the requirements set forth in Rule 9J-5.006(3)(c)3. and 8. The former subsection requires a policy addressing implementation activities directed toward providing facilities and services to meet locally established level of service standards concurrent with the impacts of development. The latter subsection requires a policy addressing implementation activities directed toward identifying, designating, and protecting historically significant properties. As to the Future Land Use Map, the ORC identifies deficiencies similar to those cited regarding the Future Land Use Element with respect to a lack of support by the data and analysis. The deficiencies in the data and analysis include the failure to show all required land use categories, including conservation and historic resources, which are required by Rule 9J-5.006(4)(a); failure to show one land use category, the redevelopment area, that is described in the text; and omission of all required natural resources, such as floodplains and wetlands, which is in violation of Rule 9J-5.006(4)(b). Noting that the legend on the Future Land Use Map states that the map is intended as an adjunct to the Plan, DCA comments that the legend should reflect that the map will be adopted as part of the Plan. 3. Housing Element One of the objections to the data underlying the Housing Element in the Background Analysis is that they do not include an inventory of historically significant housing listed in the Florida Master Site File, housing designated as historically significant by a City ordinance, or the location of the single house that is listed on the National Register of Historic Places. All of this information is required by Rule 9J-5.010(1)(g). The ORC contains an objection to Objective 3.1.4, which is set forth in Paragraph 33 above. The ORC states that this objective, which promises the preservation of historically significant property, is unmeasurable. 4. Public Facilities Element The ORC sets forth six objections to the data and analysis underlying the Drainage Subelement of the Public Facilities Element of the Background Analysis. These objections point out the absence of data and analysis concerning the following items: the design capacity of the drainage facilities, which information is required by Rule 9J-5.011(1)(e)3.; the existing level of service standard provided by the drainage facilities, which information is required by Rule 9J-5.011(1)(e)5.; and the projected facility capacity, including surpluses and deficiencies, for the second increment of the planning period, which information is required by Rule 9J-5.011(1)(f)3. The ORC states that Objectives 4.3.5, 4.3.6, and 4.3.7 are unmeasurable and, as to Objectives 4.3.6 and 4.3.7, unspecific. These objectives, which are quoted in Paragraph 35 above, respectively deal with flood control, wetlands protection, and adequate surface water management facilities. The ORC is also critical of Policy 4.3.6.1, which is set forth in Paragraph 36 above and promises that the City will avoid infrastructure improvements that encourage wetlands development. DCA recommends that the Drainage Subelement show how the City will conduct the programs and implementing activities to avoid such infrastructure improvements. 5. Coastal Management Element Among the objections to the data underlying the Coastal Management Element of the Background Analysis is that the element lacks any inventory, analysis, or mapping of historic resources, which are required by Rule 9J- 5.012(2)(c). The ORC cites the failure of the Coastal Management Element to include policies addressing the requirements of Rule 9J-5.012(3)(c)1.-3., 8.-10., 13., and 14. These subsections require policies that, among other things, limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, wildlife habitat, and living marine resources; restore or enhance disturbed or degraded natural resources, including wetlands, estuaries, and drainage systems; regulate floodplains, stormwater management, and land use to reduce the risk of loss of human life and property as a result of natural hazards; protect historic resources by, among other things, identifying historic sites and establishing performance standards for the development and sensitive reuse of historic resources; and generally establish priorities for shoreline land uses. 6. Conservation Element The ORC contains an objection to Objective 6.5 of the Fisheries and Estuarine Habitat Subelement of the Conservation Element of the Proposed Plan. DCA finds this objective, which is cited in Paragraph 40 above and requires the protection of the Indian River Lagoon, to be unmeasurable and unspecific. The ORC states that the Conservation Element lacks policies to protect existing natural resources and designate environmentally sensitive lands for protection, which are required by Rule 9J-5.013(2)(c)7. and 9. 7. Capital Improvements Element The ORC notes one objection and recommendation to the data underlying the Capital Improvements Element of the Background Analysis. The objection states: Because data and analysis requirements were missing in the Drainage . . . Subelement, capital improvement needs cannot be adequately evaluated. Capital improvement needs for [this subelement] cannot be assumed to be nonexistent. The ORC states seven objections and recommendations to the analysis underlying the Capital Improvements Element of the Background Analysis. These objections generally concern a lack of information about costs and revenues. The ORC contains objections to Objectives 9.1, 9.2, and 9.7 as unmeasurable and, with respect to Objectives 9.2 and 9.7, unspecific. These objectives, which are quoted at Paragraph 44 above, deal generally with funding capital improvements required by level of service standards. The ORC cites the absence of an objective addressing the requirements of Rule 9J-5.016(3)(b)5. This rule requires an objective showing the local government's ability to provide or require the provision of the needed improvements identified in the Plan's other elements. The rule also requires an objective showing the local government's ability to manage the land development process so that the public facility needs created by previously issued development orders do not exceed the ability of the local government to fund or require the funding of capital improvements. DCA also objects to numerous policies in the Capital Improvements Element on the grounds that they are not measurable. 8. Miscellaneous DCA objects in the ORC that the Proposed Plan lacks goals, objectives, and policies that further numerous policies of the Regional Comprehensive Policy Plan of the Regional Planning Council. Review of ORC and Adoption of Plan Review of ORC Within a few days after receiving the ORC from DCA, Cocoa forwarded the relevant portions of the Proposed Plan to the consultants who had prepared them for the preparation of responses and revisions. On or about August 31, Cocoa received the responses and revisions from the consultants. As noted in Paragraph 46 above, the procedures in effect at this time were those contained in Ordinance No. 4-80. On August 23, 1988, the City Council postponed until its next meeting consideration of a new ordinance establishing procedures for adopting amendments to the Proposed Plan. On August 31, 1988, a 1 1/4" by 8 1/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on September 14, 1988, at 5:15 p.m. for the purpose, among other things, of recommending to the City Council changes to the nine elements of the Proposed Plan. The advertisement stated that the City Council will consider the recommendations of the Planning and Zoning Board during its regularly scheduled meeting on September 27, 1988, at 7:00 p.m. The advertisement advised that the Plan documents, including the Future Land Use Map, were available for public inspection at the Community Improvement "Office." On September 1, 1988, a 6 1/2" by 10 1/2" display advertisement provided the same information as that contained in the advertisement published the prior day. The display advertisement stated: The City urges any citizen to review the Plan documents and submit written or oral comments at any time during the process. Such comments will be presented during the hearing along with response as appropriate. All citizens will be given the opportunity to review the documents, have legal notification, submit written or oral comments, and receive appropriate responses to items related to elements to be adopted by the City as the City's Comprehensive Plan. The display advertisement bore a large, boldface headline in block print, stating: "NOTICE OF CHANGE IN LAND USE." The advertisement contained a large map of the City. A 6 1/2" by 4" version of the same advertisement appeared elsewhere in the same edition of the newspaper. At the regular meeting of the City Council on September 13, 1988, Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, complained about the limited opportunities for public participation, in part caused by the lack of current information available to the public. In response, the City Council announced the dates of September 27 and October 4, 5, or 6 for the adoption hearings for the Plan. Richard Amari, the City Attorney, reminded everyone that the Act gives local governments only 60 days following the issuance of the ORC within which to adopt the Plan. He said that Cocoa was not trying to bypass public participation, but had to comply with the law. At the September 13 meeting, the City Council adopted Resolution No. 88-31, which became effective the same date. The resolution provides in relevant part: Section 1. The City will advertise pursuant to Florida State Statutes and Department of Community Affairs Rule 9J-5. Section 2. The City will post notices of its public hearings in City Hall, Library and Police Department regarding consideration of the Comprehensive Plan. Section 3. The City will provide in its ads encouragement for written and oral comments by the public which written comment will be made part of the public record. Section 4. The City Manager or his designee will assure that responses to written comments received during the process will be given either at the public hearings as appropriate or written responses may be given upon request. Section 5. The plan documents are available for public inspection at City Hall in Rooms 208 & 202, and the Cocoa Public Library during normal business hours. Section 6. This Resolution shall govern activities engaged in by the Planning and Zoning Board acting as the Local Planning Agency during its public hearing on September 14, 1988, and continued from time to time; and by the City Council at its Public Hearing on September 27 as may be continued from time to time. On September 14, 1988, the Planning and Zoning Board conducted a public hearing concerning, among other items, the Plan. The scarcity of Plan documents, especially the Future Land Use Map, limited the amount of meaningful participation by members of the audience and, to a lesser extent, the Board. The Future Land Use Map is a color-coded document. A black and white photocopy of the map incompletely depicts the various land uses shown on the map. An ongoing problem through the planning process was that these color maps, which were prepared for the City by the Regional Planning Council, were not generally available to the public. However, during most if not all of the process, Ms. Lawandales maintained in the Community Improvement Department a large color map, which was generally current. Part of the problem was the City's inability or unwillingness to incur the cost and suffer the inconvenience of printing new maps every time that there was a change in the use assigned to a parcel. Such changes were frequent in the final weeks before adoption of the Plan. At the September 14 meeting, for instance, there was already a handwritten list of 20 numbered proposed changes to the Future Land Use Map. Item 10 of the proposed changes converts from open space to medium- density residential most of the southeast quarter of the open area located north of Michigan Avenue and west of U.S. Route 1, which is part of the linear marsh wetlands within Drainage Area III. The September 14 meeting was a scene of some confusion due to the above-described documents. One Board member moved that the public be given at least those documents that the Board had. The motion failed. In part due to time constraints and limited staff resources, the Board decided instead to copy for the public only the maps and revisions and responses to the goals, objectives, and policies. The meeting adjourned by a 4-2 vote before considering the Future Land Use Map. Two Board members remained after the meeting to share their Future Land Use Maps with the audience. A few days later, City staff persons compiled a large notebook with a complete set of documents related to the Plan and distributed these notebooks to the members of the City Council. These documents consisted of the goals, objectives, and policies of the Proposed Plan; the unrevised Background Analysis; the responses and revisions to the goals, objectives, and policies as a result of the ORC; the EAR; and possibly other documents. On September 18, 1988, a 10 1/2" by 6 1/2" display advertisement announced three workshops and two public hearings to be held by the City Council. The workshops were set for September 19 at 7:00 p.m., September 20 at 5:00 p.m., and September 22 at 6:30 p.m. The first workshop would cover the Public Facilities, "Transportation" (i.e., Traffic Circulation), and Capital Improvements Elements. The second workshop would cover the Coastal Management, Conservation, and Recreation and Open Space Elements. The third workshop would cover the Future Land Use, Housing, and Intergovernmental Coordination Elements. The advertisement stated: "The general purpose of the workshops is to receive public comments and review the Comprehensive Plan." Some local residents were aware of the three workshops at least one day prior to the publication of the advertisement. The same advertisement announced that the public hearings would take place on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. The advertisement stated: The purpose of these hearings is to receive public comments and recommendations on a Comprehensive Plan, and to review and adopt an ordinance adopting the Comprehensive Plan in accordance with the requirements of growth management and land development legislation adopted by the Florida Legislature in 1985 and 1986. On September 19, the Planning and Zoning Board and City Council jointly conducted a workshop on the Public Facilities, Traffic Circulation, and Capital Improvements Elements. Mayor Robinson acknowledged the receipt of a petition of residents from two subdivisions in opposition to changes to their neighborhoods by the Plan. Mayor Robinson informed the audience that the Future Land Use Map would be discussed at the September 22 meeting. The format of the September 19 workshop, as well as the two other workshops, was that City staff would first address an issue, followed, in order, by City Council members, Planning and Zoning Board members, and lastly the audience. City staffpersons at the September 19 workshop identified a list of 38 recommended changes to the Future Land Use Map. Item 10 from the September 14 list was renumbered as Item 7. Item 6 on the September 19 list encompasses what remained of the eastern half the open space north of Michigan Avenue. The recommendation is to designate this wetlands area commercial. The northern tip of the linear marsh wetlands area south of Michigan Avenue and west of U.S. Route 1 is proposed to be redesignated commercial in new Item 10. Item 11 proposes that the remainder of this open space/wetlands be redesignated medium- density residential. The recommended changes appearing at the September 19 workshop substantially eliminate the two other open space/wetlands, as well. Item 33 recommends low-density residential for most of the southern half of the open space/wetlands located between Range Road and the largest unincorporated enclave within the City. Item 34 recommends medium-density residential for most of the northern half of the same open space/wetlands. According to the Soils Map contained in the Background Analysis, the northern portion of Little Mud Lake is in the medium-density residential area and the southern portion of the lake is in the low-density residential area. After these two changes, about one quarter of the original open space/wetlands between Range Road and the unincorporated enclave retains the originally proposed designation as open space. The remaining open space is an L-shaped strip immediately adjacent to the unincorporated area within the City. According to the Existing Land Use Map in the Background Analysis, the portion of the L-shaped strip running north-south is devoted to recreational uses, such as a park. Items 37 and 38 recommend the complete elimination of the largest open space/wetlands, which is located north and west of the intersection of Michigan Avenue and Range Road and is within Drainage Area IV. Item 37 proposes that nearly all of this open space/wetlands, including Big Mud Lake, be redesignated low-density residential. Item 38 proposes that the western portion of this open space/wetlands be redesignated medium-density residential. On September 20, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Coastal Management, Conservation, and Recreation and Open Space Elements. Discussion included the redesignation of the open space/wetlands in the vicinity of Michigan Avenue from open space to medium-density residential and commercial. At the conclusion of the meeting, the City Council agreed to add another parcel to the list of recommended changes to the Future Land Use Map. On September 22, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Housing, Future Land Use, and Intergovernmental Coordination Elements. Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, objected at this workshop to the Future Land Use Element, as well as other matters. Petitioner Houston herself spoke against the Future Land Use Map. A Future Land Use Map was present at this workshop. This map, reflecting the latest addition, showed 39 numbered areas marked in black. The numbers corresponded to the list of recommended changes to the Future Land Use Map. The City Council authorized during the workshop the addition of two more proposed changes. The September 22 workshop marked the last involvement of the Planning and Zoning Board in the planning process. The Board never formally recommended the Plan and supporting documents to the City Council for adoption. However, by the end of the meeting, none of the Board members expressed any remaining objections to the Plan and supporting documents, and most if not all Board members had no serious objections to the Plan. A formal recommendation was therefore unnecessary. Adoption Hearings On September 23, 1988, a display advertisement nearly identical in size and content to that published on September 18 stated that the City Council would conduct public hearings on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. on changes in the use of land within the City limits. A similar display advertisement on September 29, 1988, announced the October 4 public hearing. The City Council received a list of 41 proposed changes to the Future Land Use Map at the September 27 hearing and approved the addition of a another property, as well as unrelated revisions to the Wastewater Element. In a presentation to the City Council, Ms. Lawandales referred to a set of revisions to the Future Land Use Element. These revisions were not the same as those prepared by the Regional Planning Council. Ms. Lawandales referred in her presentation to a set of revisions that add only two short clauses to the goals, objectives, and policies of the Future Land Use Element. At the October 4, 1988, public hearing, the City Council received written objections from Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, in the form of an eight-page letter. Given the detail and scope of the letter and lack of time, the City Council and staff were justifiably unable to offer a response until after the hearing, which concluded with the adoption of the Plan. During the hearing, the City Council approved the addition of five more properties to the list of 42 recommended changes to the Future Land Use Map. At the conclusion of the October 4 hearing, the City Council adopted the Plan by adopting Ordinance No. 20-88, which in relevant part provides: Whereas, after months of careful review and a public hearing the Planning and Zoning Board sitting as the Local Planning Agency has recommended adoption of the new Comprehensive Plan in substantially the form presented; and Whereas, the City Council has received objections, recommendations, and comments from the [Regional Planning Council, DCA], and various other agencies; and * * * Whereas, the City Council has made certain amendments in the proposed new Comprehensive Plan in light of [public comments], as well as the comments, recommendations, and objections of the [Regional Planning Council, DCA], and various other State agencies; * * * Now, therefore, be it enacted by the City Council of the City of Cocoa, Brevard County, Florida, that: Section 1. That Section 15-4 of the City Code of Cocoa is hereby amended to read as follows: Sec. 15-4 Adoption of Comprehensive Plan. The City's Comprehensive Plan consists of the one (1) volume book entitled Comprehensive Plan--City of Cocoa, Volume II, April 1988, which Comprehensive Plan consists of (i) Goals, Objectives and Policies for nine (9) elements, including Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination and Capital Improvements, (ii) Procedures of Monitoring and Evaluation, (iii) Requirements for Consistency of the Local Comprehensive Plan, and (iv) Population estimates and projections utilized as basis for the plan documents, plus the Evaluation and Appraisal Report dated April, 1988. Section 2. Attached hereto and incorporated herein by this reference is the City's Comprehensive Plan as referenced in Section 1 of this Ordinance, which Comprehensive Plan is hereby adopted as the official comprehensive plan for and of the City. * * * Section 4. Ordinances and Resolutions in Conflict. All Ordinances or Resolutions or parts thereof that may be determined to be in conflict herewith are hereby repealed. The City's Comprehensive Plan approved with the adoption of Ordinance No. 11-80 of July 8, 1980, all as the same may have been amended from time to time, be and the same is hereby repealed. Section 5. Effective Date. This Ordinance shall become in full force and effect immediately upon its adoption by the City Council. Adopted by the Council of the City of Cocoa, in regular meeting assembled, on the 4th day of October, 1988. The ordinance is signed by Mayor Robinson, whose signature is attested by the City Clerk. The review and adoption proceedings ended with the October 4 hearing. At no time during these proceedings did Petitioner David P. Hendry, Sr. or Loula P. Hendry submit oral or written objections to the Plan or Proposed Plan. On or about August 13, 1988, Petitioner David P. Hendry, Sr. sent a letter dated July 31, 1988, to Cocoa and numerous other state and local officials. In the letter, he objected to a marina project that was under consideration. However, these comments did not constitute objections to the Plan or Proposed Plan, of which Petitioners Hendry were unaware until after it had been adopted by the City and determined to be in compliance by DCA. The Contents of the Plan General Besides the goals, objectives, and policies, the Plan consists of the EAR (described in Paragraphs 157-169), Resolution No. 88-31 (described in Paragraph 115), population data (described in Paragraph 170), a section entitled "Consistency of the Local Plan with the State Comprehensive Plan" (described in Paragraph 171), and a section entitled "Monitoring and Evaluation (described in Paragraph 46). The Plan is also supported by the data and analysis contained in the Background Analysis, portions of which are described in Paragraphs 47-67 above. The City submitted revisions to the Background Analysis, portions of which are described in Paragraphs 172-180 below. Goals, Objectives, and Policies The goals, objectives, and policies of the Plan are those of the Proposed Plan, as revised by the City Council. The revisions are as follows: 47 changes to the Future Land Use Map, as identified in Austin Exhibit 10; numerous revisions to the goals, objectives, and policies of the Proposed Plan, as identified in Austin Exhibit 10; two revisions to the proposed Future Land Use Element, as identified in Cocoa Exhibit 4; and revisions to the Solid Waste and "Sanitary Sewer" (i.e., Wastewater) Subelements of the Public Facilities Element, as identified in Cocoa Exhibit 4. There are no other revisions, additions or deletions affecting the goals, objectives, and policies of the Plan. The revisions described in Paragraph 181 below were never adopted by the City and are not part of the Plan. Responses, which are set forth in Austin Exhibit 10, are explanations offered by the City in response to objections and recommendations of DCA; responses do not contain any goals, objectives, or policies. Future Land Use Element and Map One response concerning the Future Land Use Element explains that objections in the ORC to missing data have been satisfied by a revision of the underlying data and analysis. However, as to objections with respect to the failure of the Future Land Use Map to depict conservation and natural resources, the response is that "no . . . conservation or historic resource land use categories are applicable for the city." However, the revised analysis underlying the Future Land Use Element includes a map of the Cocoa Historic District. The response to the objection that the Future Land Use Map fails to show all required natural resources is: "Wetlands are not a designated future land use." The revisions to the goals, objectives, and policies of the Future Land Use Element include revised Objectives 1.1 and 1.2, which are set forth in their proposed form in Paragraph 27 above. These revisions require that the City accomplish the tasks described in the two objectives within one year of Plan submittal. The revisions to the goals, objectives, and policies of the Future Land Use Element contain four new objectives. Objectives 1.3 and 1.4 respectively deal with the elimination by the year 2000 of blight and existing land uses that are inconsistent with the Future Land Use "Plan." Objective 1.5 states that within one year of Plan submittal all development activities "will be consistent with and supportive of the Plan's objectives for protecting natural and historic resources." Objective 1.6 states that within one year of Plan submission land development regulations will provide for the availability of sufficient land area for the siting of public facilities. The revisions contain several new policies. New Policy 1.1.3 allows the City to issue development orders only if the necessary public facilities, operating at the adopted levels of service, are available concurrent with the impacts of the development. New Policy 1.5.1 states that the City will identify its historical resources and maintain an updated file of historically significant properties. New Policy 1.5.3 provides that the City will protect its cultural, historic, and archaeological resources by helping to educate the public of the value of such resources, considering the establishment of a historic district, and purchasing development rights to preserve historically significant properties. Revisions also clarify that open space/residential areas on the Future Land Use Map will be used for park, recreational, and ancillary uses, except as required for other public purposes. 2. Housing Element The City Council adopted several revisions to the goals, objectives, and policies of the Housing Element. Objective 3.1.4, which in its original form is set forth in Paragraph 33 above, is revised to provide that the quality of existing homes and neighborhoods will, at a minimum, be maintained, rather than maintained or improved. Policy 3.1.4.7, which is also set forth in Paragraph 33, is revised to add that the City will perform an annual review of historically significant housing units in order, as previously provided, to aid in the identification of historically significant housing and structures. 3. Public Facilities Element Objectives 4.3.5, 4.3.6, and 4.3.7 are revised as follows with the new language underlined: Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development through actions identified in needs assessments and engineering studies, with the actions being undertaken on a priority basis as determined in the engineering studies, with individual prioritized actions being initiated no later than one year following the completion of the engineering studies, consistent with the schedule of actions contained in the Comprehensive Improvements Plan [sic]. Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establishment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems applicable ordinances (including design criteria and standards) will be submitted for adoption consideration no later than October 1, 1990, with final adoption within one year following the initial submittal. Objective 4.3.7: To ensure the proper and adequate surface water management facilities are provided in response to identified needs existing deficiencies and needs will be determined, cost and time requirements of corrective actions will be identified, and alternative sources of revenue will be evaluated, with the above information being compiled into a Surface Water Management Plan for the entire City and any external service areas by October 1, 1995. The revision of another objective reiterates the intention of the City to perform engineering studies in the future to gain information necessary to drainage planning: Objective 4.3.2: To protect, preserve or improve the quality of surface drainage waters being discharged from existing and future drainage systems in the City so that such discharges do not contribute to the degradation of water quality conditions in receiving waterbodies or prevent the improvement of degraded conditions, and promote the continuance or establishment of healthy, balanced natural environments through the implementation of ordinances, engineering studies, inspection programs, and coordinative actions with regulatory agencies, with such activities being initiated no later than October 1, 1992. Revisions to several policies show an increasing recognition of the need to plan for drainage and the role of wetlands in such a plan: Policy 4.3.2.6: Proposed development plans will be thoroughly reviewed to ensure that new development does not adversely impact surrounding properties by altering drainage patterns and water storage capabilities so that increased volumes of water are discharged onto the properties or that surface drainage flows from the properties are not impeded or retarded so as to create or contribute to flooding or diminished land usage, unless such lands have been purchased or designated by the City for surface water storage purposes. Policy 4.3.4.3: The City will actively participate in the preparation and implementa- tion of applicable Surface Water Improvement and Management (SWIM) plans being undertaken by the [Water Management District] which will [replacing "would"] involve or include land areas in the City or waterbodies affected by drainage from the City. Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, for the purpose of protecting and preserving wetland areas with appropriate measures such as ordinances and development standards being used [replacing "taken"] to control [replacing "discourage"] development in affected wetland areas. Policy 4.3.6.3: The City will review its existing land development design criteria, and revise if necessary, to provide for and encourage the incorporation of existing wetlands into land development plans for the use of "free services" offered by the natural areas provided that: --intrinsic natural wetland values, functions and hydroperiods are not adversely affected, --the wetland is maintained in its natural condition, and --the wetland is protected from future development. 4. Coastal Management Element The revisions add a new goal, objective, and policies that provide: Goal 5.3: The natural resources of the City's coastal area shall be preserved, protected or enhanced to provide the highest possible environmental quality for recreation and the propagation of fisheries and wildlife. Objective 5.3.1: The City shall protect, and restore where necessary, the following natural resources and environmental attributes within its control: air quality, endangered species and their habitat, native vegetation and wildlife, fisheries and estuarine habitat, water quality, and floodplains. New Policy 5.3.1.1 incorporates Objectives 6.1 and 6.2-6.9 and the policies thereunder. The revisions contain another new objective and policies under the new goal described above. Policy 5.3.2.3 states that the City will conform its plan and development criteria to the guidelines set forth in yet-to-be identified resource protection plans to the extent "legally permissible." Policy 5.3.2.4 states that the City shall notify the Resources Council of East Florida and the Indian River Aquatic Preserve of all proposed activities that the City Council considers will directly affect the coastal zone, including changes in stormwater discharge, vegetation removal, or dredge and fill operations. 5. Conservation Element Objective 6.5 of the Fisheries and Estuarine Habitat Subelement, which is quoted in its original form in Paragraph 40 above, is revised as follows: Objective 6.5: By 1993, the abundance and diversity of submerged aquatic vegetation and fish species found in the City's lakes, and in the Indian River within the zone between the Cocoa shoreline and the Intracoastal Waterway, shall be as great, or greater, than they were in 1988. The City cites eight policies under Objectives 6.4 and 6.8 in response to the objection that the Proposed Plan lacks policies addressing the protection of existing natural resources and designating for protection environmentally sensitive land. 6. Recreation and Open Space Element The revisions to the Recreation and Open Space Element contain a new objective concerning open space: Objective 7.2.1: Within one year of Plan submittal the land development regulations will include provisions for addressing the open space needs of the City. 7. Capital Improvements Element The revisions to the Capital Improvements Element include requirements that the City satisfy the requirements of Objectives 9.1 and 9.2, which are set forth in Paragraph 44 above, by 1989 and 1990, respectively. The City revised Objective 9.1 to require, by 1989, the incorporation of levels of service standards into land development regulations. Also, the City added the following language to Objective 9.5, which is quoted in its original form at Paragraph 44 above: "Public Facility needs created by development orders issued prior to Plan adoption will not exceed the ability of the City to fund or provide needed capital improvements." Evaluation and Appraisal Report The EAR, which is referenced in Paragraph 24 above, evaluates the success of an earlier, unrelated comprehensive plan previously adopted by the City. The EAR begins with an introductory section commenting about the area and problems facing the City. The introduction notes that the City has significant undeveloped lands, especially in the northwest section of Cocoa. A large part of these lands is the single open space/wetlands north of Michigan Avenue and west of Range Road. The EAR states: "Much of the land is not developable due to natural constraints; however, primary residential growth will occur in this area in the future." The introduction also recognizes that "drainage is still a major concern" due to the "extensive amount of new development and alteration of some natural drainage systems, as well as continued drainage problems from older development." Among the solutions noted in the introduction are the requirement of retention and detention areas in new developments. Concerning conservation and protection of the coastal zone, the introduction states: The City of Cocoa has continued to seek to protect the integrity of the flood hazard areas as significant development has not occurred in these areas as of this date. Maintaining these areas for natural functions, it will decrease the possibility of flooding and associated problems during heavy cycles of rain. This also adds to the water quality of the area. The major portion of the EAR is devoted to an evaluation of the success of the prior comprehensive plan. Several relevant portions of this self-assessment, which was updated on September 27, 1988, are set forth in the following paragraphs. Objective 2 under Open Space was to "develop flood plain controls which will allow for the protection of some open space around Cocoa's lakes and low areas in the event of development." The result: not accomplished. Objectives 2 and 3 under the Conservation/Coastal Element were to use the City's water retention ordinance to control surface drainage from new developments and continue to make needed drainage improvements. The results: the first objective was accomplished and the second objective was not accomplished as of April, 1988. However, as to the second objective, as of September 27, 1988, "a drainage improvement program has been initiated." Objective 3 under the Land and Vegetation Resources was to control the amount of filling that could occur in new development to ensure proper drainage in surrounding areas. The result: not accomplished in April, 1988, and partly accomplished by September 27, 1988. Objective 1 under Drainage was to develop a citywide Master Drainage Plan with priorities and cost estimates for drainage improvements needed in Cocoa. The result: not accomplished. Objective 3 under Drainage was to control activities in flood prone areas in an effort to prevent a detrimental impact on areawide drainage patterns. The result: not accomplished. Objective 4 was to encourage, as feasible, the use of natural filtration, detention, and retention to reduce runoff-associated drainage problems. The result: accomplished. Objective 11 under Intergovernmental Coordination was to adhere to statewide plans and programs designed to control nonpoint sources of water pollution and prevent alteration of areawide drainage patterns. Result: not accomplished. Miscellaneous The Plan includes the population history and estimates that had been provided with the transmittal of the Proposed Plan in April, 1988. This document is included in Cocoa Exhibit 4. The Plan includes the Consistency of the Local Comprehensive Plan with the State Comprehensive Plan that had been provided in April, 1988, at the end of the City of Cocoa--Comprehensive Plan, Volume II . This document is a cross-index between provisions of the Plan and the state comprehensive plan. Background Analysis In reply to objections and recommendations in the ORC pertaining to the Background Analysis, the City supplemented its data and analysis through revisions. Shortly after the Plan had been adopted and transmitted, the City sent to DCA the revisions to the data and analysis and responses to the objections and recommendations concerning data and analysis. Future Land Use Element and Map In response to the objection that the data omitted conservation uses and historic resources, the City states that there are "no conservation uses" and supplies a map depicting existing historic resources. Elaborating upon the historic resources, the City mentions a survey of historic structures that took place in November, 1987. The resulting list of 72 structures is depicted on a map, which is included in the response and entitled, "Cocoa Historic District." An inventory of the properties is included. In a narrative response to an objection to the absence of an analysis of the need for redevelopment, the City describes its earlier redevelopment efforts, which include the adoption of a redevelopment plan, pursuant to Chapter 163, Part III, Florida Statutes. Noting the objectives of the redevelopment plan as to the elimination of slums and blighted conditions, the narrative concludes: "These goals should be retained and reiterated in the goals, objectives and policies section of the Comprehensive Plan." 2. Housing Element The revised Background Analysis contains a long narrative concerning housing. At the end, the City states that it should take "appropriate measures" to preserve and protect the Porcher House, which is the only structure in the City listed on the National Register of Historic Places, and maintain the quality of older neighborhoods in order to preserve other potentially significant property. 3. Drainage Subelement Responding to an objection that the data and analysis fail to include the capacity allocated to meet the City's drainage needs for the ten-year planning horizon, the City added the following language: However, information is not currently available for future allocation and usage during the ten-year planning period. The available information is insufficient to accurately determine the proportion of design capacities currently being used to handle runoff and groundwater flows in the drainage system components. 4. Capital Improvements Element Elaborating upon its earlier responses to the objections to the Drainage Subelement of the Background Analysis, the City states that "[t]here are no planned capital improvements for the drainage system." The City refers to attached materials in response to numerous objections to the omission from the analysis of future revenue and expenditures available for needed capital improvements. However, such material was not included with the revisions and responses. 5. Coastal Management Element The glossary added to the Background Analysis by the revisions reiterates the statement in the original Background Analysis, noted at Paragraph 65 above, that the coastal area for the Coastal Resources Subelement is the entire City. (The reference to "Rockledge" is a typographical error; the Regional Planning Council, which drafted the Background Analysis and revisions, was working at the same time on the Rockledge comprehensive plan.) (Responses to DCA Comments, p. 12-6.) 6. Miscellaneous In responding to objections to the data and analysis concerning the consistency of the Plan with the plan of the Regional Planning Council, the City cites a new Objective 6.3 with new Policies 6.3.1-6.3.5 and 6.4.9. These items, which generally deal with ensuring the persistence through 1998 of the 1990- level distribution and abundance of endangered and threatened species and their habitats in the City, were neither considered nor adopted by the City Council. Objective 6.3 and Policies 6.3.1-6.3.5 and 6.4.9 are therefore not part of the Plan. Determination of Compliance by DCA After receiving the Plan and supporting documents shortly after October 4, 1988, DCA analyzed the revisions and responses in light of the 139 objections and recommendations contained in the ORC. At the conclusion of the analysis, DCA found that 28 of the revisions and responses were inadequate. These findings are set forth in the Preliminary Findings on the Cocoa Comprehensive Plan, which is dated November 16, 1988. On November 26, 1988, DCA published, by way of a 10 1/2" by 6 1/2" advertisement, its Notice of Intent to Find the City of Cocoa Comprehensive Plan in Compliance. The advertisement complies with the statutory requirements. Ultimate Findings as to Public Participation The public participated in the comprehensive planning process to the fullest extent possible. The City Council adopted procedures to provide effective public participation, including notice to real property owners of all official action affecting the use of their property. Any deficiency in the procedures is immaterial. The Planning and Zoning Board duly discharged its responsibilities as the local planning agency under the Act. The City Council and Planning and Zoning Board amply advertised their many public hearings and provided reasonable opportunity for written comments and open discussion. Comments from the public appear to have received fair consideration. The City disseminated proposals and other information as broadly as possible, although certain materials were available at times only to staff and not the City Council, Planning and Zoning Board, or public. The City was confronted with a substantial task involving the identification, consideration, and resolution of complex technical and legal questions. The City prudently delegated much of the work to City staff and outside consultants. The Act generates severe time pressures, especially on the local government, which has only 60 days to digest the ORC and adopt a plan. Once the City received the ORC, about half of the 60 days was spent by the staff and outside consultants in drafting proposed revisions and responses. Neither City Council or the Planning and Zoning Board could realistically commence public meetings until the members had reviewed the work of the consultants and staff. Critical land use decisions such as those involved in the adoption of a comprehensive plan are politically sensitive. The land use decisions in this case generated considerable controversy in the community. Members of the City Council or the Planning and Zoning Board could not reasonably be expected to commence public meetings before they were aware of what revisions and responses were being proposed by their experts. The greatest shortcoming in the public participation process involved the ongoing proposed changes to the Future Land Use Map and the inability or unwillingness of the City to disseminate in a timely manner updated maps reflecting these proposed changes. Broader and more timely dissemination of the proposed changes would have facilitated more careful consideration of the effects of redesignating the uses of large parcels of land. However, the real target of the frustrations expressed with the public participation process is with the resulting land use decisions, not the process itself. Even in light of the shortcomings with respect to the revisions to the Future Land Use Map, the public participated in the process to the fullest extent possible under the circumstances described above. Ultimate Findings as to Consistency Drainage, Wetlands, and Floodplains Internal Consistency The Plan is internally inconsistent with respect to drainage, wetlands, and floodplains. These inconsistencies render the Plan inconsistent in the related matters of protecting the estuarine waters of the Indian River Lagoon; fisheries, wildlife, and vegetation habitat; and general water quality. In general, the inconsistencies result from the conflict between Plan provisions protecting wetlands, restricting floodplain development, and ensuring adequate drainage, on the one hand, and, on the other hand, the elimination of nearly all of the existing open space/wetlands from, and the failure to depict wetlands as a natural resource on, the Future Land Use Map. Many Plan provisions assure the protection of wetlands, adequacy of drainage, and restriction of development in the floodplains, as well as the protection of the estuarine waters of the Indian River, various habitats, and general water quality. For instance, Policy 1.1.B protects the wetlands identified in the Conservation and Future Land Use Elements. Objective 1.5 requires that development activities will be consistent with and supportive of the Plan's objectives for protecting natural resources. Objective 4.3.6 promises ordinances to ensure the protection of wetlands. Policy 4.3.6.1 restricts public infrastructure funds that encourage the development of the wetlands. Goal 5.3 and Objective 5.3.1 provide for the protection and restoration of estuarine habitats and floodplains. Policy 6.4.7 prohibits any development that significantly and adversely alters the function of the wetlands. Objective 6.5 requires that the condition of the Indian River, in terms of its ability to support numbers and types of aquatic vegetation and fish, be maintained or improved between now and 1993. Policy 6.5.3 requires that the City take steps to reduce the volume of untreated stormwater. Objective 6.8 ensures the protection of the flood storage and conveyance capacities of the 100 year floodplain. However, the protection guaranteed wetlands, floodplains, and drainage is contradicted by the treatment of wetlands in The Future Land Use Map. The map is a critical component of the Plan. According to both Objective 1.2 and the Background Analysis, the Future Land Use Map will provide the rationale for all future land use decisions when the City implements the Plan with land development regulations. The Future Land Use Map is at least as important as goals, objectives, or policies in setting the course for future development and redevelopment in Cocoa. The Future Land Use Map subordinates all but a small section of the wetlands in the City to residential and commercial land uses. The City could have extended effective protection to the wetlands by reserving them a place in Cocoa's future. First, the City could have shown them as a natural resource on the Future Land Use Map. Second, the City could have shown them as a conservation land use on the Future Land Use Map. The failure to take these steps was not inadvertent. The ORC pointed out both of these omissions. In the Proposed Plan, the City chose to designate the wetlands as open space, which provided some protection. Even so, DCA objected to the omission of a conservation land use category from the Future Land Use Map, as required by Rule 9J-5.006(4)(a). The City's response: "No . . . conservation . . .land use categories are applicable for the city." DCA also objected to the failure to show on the Future Land Use Map all required natural resources, which include wetlands under Rule 9J-5.006(4)(b). The City's response, which betrays a failure to comprehend the difference between a land use category and a natural resource: "Wetlands are not a designated future land use." These "explanations" are hardly consistent with overall protection of the wetlands or, specifically, with such provisions as are contained in Policy 7.2.1.2, which provides that the City will "[d]esignate conservation areas . . . as part of the future land use map in order to preserve open space and fulfill . . . [Conservation Element] objectives." As the Future Land Use Map presently stands, the City will soon adopt land development regulations consistent with the use of nearly all of its wetlands for low- and medium-density residential and commercial purposes. Following the adoption of these land development regulations, it will be too late to protect the wetlands as a system, which is how they function in providing drainage, habitat, and water filtration. Absent designation as a conservation area or open space, the wetlands can be preserved, at most, as isolated, poorly functioning remnants carved out of large-scale development plans. Wetlands are vital to the efforts of the City in the areas of drainage, flood control, and water quality. Two factors exacerbate the above- described inconsistencies in the Plan. First, the drainage system suffers from known deficiencies, and, at the same time, the City has failed to achieve certain significant objectives of its prior comprehensive plan with respect to drainage, flood control, and nonpoint sources of water pollution, such as stormwater runoff. Second, the data are inadequate concerning the City's drainage needs and capacity, as well as the precise role of the wetlands as to drainage and conservation. Although eliminating open space/wetlands as a land use category and declining to depict wetlands and floodplains as a natural resource, the City acknowledges several significant shortcomings in its drainage system and efforts to protect floodplains and wetlands. The City has failed to accomplish goals of earlier comprehensive plans to adopt a citywide Master Drainage Plan and obtain cost estimates for drainage improvements. It has even failed to adhere to statewide plans to control nonpoint sources of water pollution and prevent alteration of drainage patterns. A drainage improvement program, initiated between April and October, 1988, begins on an inauspicious note with the elimination of nearly all of the open space/wetlands from the Future Land Use Map. There are signs that the natural drainage system offered by local waterbodies and wetlands may be reaching or exceeding its capacity. There is clear evidence of at least isolated failures of vital parts of the natural drainage system. For example, Big Mud Lake has been exploited to its limit as a receptacle for untreated stormwater and is probably eutrophic. Suffering from untreated stormwater runoff, the Indian River has lost the vitality needed to maintain a harvestable shellfish population. The water quality of both of these waterbodies is not good. It is difficult to correlate Plan provisions protecting wetlands, ensuring adequate drainage, and preserving water quality with the nonrecognition of wetlands in the Future Land Use Map, especially in view of the City's admitted lack of knowledge concerning the needs and capacities of its drainage system. Besides repeated references in the Background Analysis to a lack of data concerning important aspects of the drainage system, the goals, objectives, and policies reflect the need for considerably more information in this area. For instance, Objectives 4.3.2 and 4.3.5 identify "needs assessments," "engineering studies," and "inspection programs" with respect to flooding and drainage that will be conducted in the future. Objective 4.3.7 ties in this work with the promise of the preparation of a surface water management plan, by October 1, 1995, to determine "existing deficiencies and needs," "cost and time requirements of corrective actions," and "sources of revenue." Policies 4.3.2.5, 4.3.5.2, 4.3.5.3, 4.3.7.1, and 4.3.7.2 also promise engineering studies to take place in the future in order to gather more information concerning drainage and the effect of stormwater on receiving waterbodies. The Background Analysis notes that no complete inventory of the drainage system has taken place for 20 years. The City requires these studies in order to determine what to do about a deficient drainage system for which no improvements are presently planned. Objective 4.3.7 acknowledges that the City has not included any improvements to its drainage or stormwater management systems for at least the initial five-year planning timeframe covered by the Plan. The Five Year Schedule of Improvements reflects no such expenditures, and the Background Analysis states that no such expenditures are planned for the next five years. As a result of the elimination of the open space/wetlands, many provisions concerning drainage and floodplain are no longer supported by the data and analysis in material respects. The data reveal the critical role of the wetlands and 100 year floodplain in the present performance of the drainage system. However, as noted above, the data also reveal that insufficient information is presently available upon which to justify the residential and commercial development of the wetlands, especially in the face of ongoing development in the 100 year floodplain. The broad promises of adequate drainage, floodplain protection, and maintenance or enhancement of the estuarine waters of the Indian River are inconsistent with the elimination of nearly all of the open space/wetlands from the Future Land Use Map and even the presence of significant development of wetlands and vacant floodplains. Under the circumstances, the Plan is internally inconsistent in its treatment of wetlands, drainage, and floodplains and, as a result of these inconsistencies, in its treatment of estuarine waters, the above-described habitats, and general water quality. The elimination from the Future Land Use Map of the open spaces hosting nearly all of the wetlands, coupled with the refusal to designate the wetlands and floodplains as natural resources on the map, are not merely inconsistent but mutually exclusive with Plan provisions protecting the above-named resources and ensuring adequate drainage. These Plan provisions lack support by the data and analysis contained in the Background Analysis. Under these conditions and in view of the failure of the City to allocate funds for improvements in the drainage system, including stormwater runoff, the Plan also lacks economic feasibility with respect to drainage and stormwater treatment. 2. Consistency with the Regional Plan Several "issues" identified in the plan of the Regional Planning Council are devoted to wetlands, drainage, and floodplains. Each of these issues contains a goal, background summary, and policies. Issue 38 of the regional plan deals with the protection of water resources. After acknowledging that stormwater runoff may be the largest surface water quality problem facing the region, Policies 38.3 and 38.5 urge local governments to divert the "first flush" of stormwater to retention facilities. The policies recommend that the local governments employ the most efficient and cost-effective pollutant control techniques available and wet detention facilities, including isolated wetlands. The goal of Issue 39 is to reduce dependence on structural means of floodplain management and optimize maintenance of water-dependent natural systems. The regional plan states that wetlands assimilate nutrients and trap sediment from stormwater, as well as physically retard the movement of surface water. Policy 39.7 advises that "[n]atural, isolated wetlands should be incorporated in surface water management systems as detention facilities, where . . . practical and appropriate, as an alternative to filling or excavating such wetlands." Policy 39.8 adds: "Floodplains which are relatively undisturbed should be protected and preserved " The goal of Issue 40 is the protection and preservation of the region's coastal areas. The regional plan defines the "coastal zone" as "within the watersheds of coastal estuaries," including the Indian River. The background summary recognizes the adverse effects of stormwater runoff on the Indian River, which is one of two major estuaries draining the region's coastal zone. These effects include the introduction of fresh water, which kills sensitive aquatic organisms like clams and oysters, and heavy metals and other pollutants. Policy 40.1 states in part: Proposed activities which would destroy or degrade the function of coastal wetlands . . . should not be permitted except where such activities are clearly in the public interest and there is no practical alternative which reduces or avoids impacts to wetlands. The redesignation of the four open spaces and the elimination of wetlands as a future land use is inconsistent with Policy 40.1. The use of the advisory word "should" in Policies 38.3, 38.5, 39.7, and 39.8 militates against a finding of inconsistency based upon a small number of specific provisions containing little more than recommendations. On balance, the Plan is not inconsistent with the policies of the regional plan. 3. Consistency with the State Plan Under the category of water resources, the state plan includes the following policies at Section 187.201(8)(b), Florida Statutes: 2. Identify and protect the functions of water recharge areas and provide incentive for their conservation. 4. Protect and use natural water systems in lieu of structural alternatives and restore modified systems. 8. Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. 10. Protect surface and groundwater quality and quantity in the state. 12. Eliminate the discharge of inadequately treated . . . stormwater runoff into the waters of the state. Under the category of natural systems and recreational lands, the state plan includes the following policies at Section 187.201(10)(b), Florida Statutes: Conserve . . . wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. The above-cited policies are clear and specific. On balance, the Plan's treatment of wetlands, drainage, and floodplains, as well as estuarine waters, fisheries, wildlife, and vegetation habitats, and water quality, is inconsistent with the above-described policies of the state plan. On balance, the Plan is incompatible with and fails to further the state plan. The Plan is therefore inconsistent with the state plan. Historic Resources Internal Consistency The Plan is internally consistent with respect to historic resources. No material inconsistency exists with respect to the identification and protection afforded historic resources by the Plan. All relevant provisions of the Plan are oriented toward the protection of historic resources. Objective 3.1.4 promises the protection and preservation of historically significant housing. Policy 3.1.4.7 states that the City will identify historically significant housing and structures annually. Policy 1.5.3 provides that the City will protect historic resources by the education of the public, consideration of the establishment of an historic district, and purchase of development rights. Objective 1.5 states that in one year all development must be consistent with the Plan's objectives for the protection of historic resources. The above-described objectives and policies are supported by the data and analysis. As revised, the Background Analysis contains a map entitled the Cocoa historic district and an inventory of the 72 properties depicted on the map. Rule 9J-5.006(4)(a)10., Florida Administrative Code, requires the inclusion in the Future Land Use Map of historically significant properties meriting protection and the boundaries of any historic district. In the responses to the ORC, the City states that "no . . . historic resource land use categories are applicable for the city." There is some conflict between the acknowledgement of an historic district and claim that no historic resource land use categories are applicable for the city. However, on balance, the inconsistency is immaterial. Unlike the situation with respect to wetlands, drainage, and floodplains, the Plan provisions protecting historic resources can be carried out without the designation of an historic district on the Future Land Use Map. 2. Consistency with the Regional Plan Two "issues" of the plan of the Regional Planning Council are devoted to historic resources. Issue 61 concerns access to cultural and historical resources. Issue 62 concerns the development of cultural and historical programs. Policy 61.1 states that historical resources "shall" be properly identified and evaluated and "should" be protected and preserved. Policy 61.3 states that local governments should adhere to the requirements of the Act regarding the inclusion of known historically sensitive resources in existing and future land use maps and the treatment of historical resources in the coastal management element, where applicable. Policy 61.5 provides that the local government "shall," "to the maximum practical extent," avoid or reduce adverse impacts of adjacent land uses on historical sites listed or eligible for listing on the Florida Master Site File or National Register of Historic Places. Policy 62.5 states that historic resources listed or eligible for listing on the Florida Master Site File or National Register of Historic Places "shall be taken into consideration" in all capital improvement projects. The Plan could have gone farther to promote the preservation of historic resources, especially from the adverse impact of nearby development and redevelopment. The most obvious way in which to achieve this goal would be through the designation of an historic land use category. However, on balance, the Plan is not inconsistent with the policies of the regional plan. 3. Consistency with the State Plan Under the category of cultural and historical resources, the state plan includes the following policies under Section 187.201(19)(b), Florida Statutes: 3. Ensure the identification, evaluation, and protection of archaeological folk heritage and historic resources properties of the state's diverse ethnic population. Encourage the rehabilitation and sensitive, adaptive use of historic properties through technical assistance and economic incentive programs. Ensure that historic resources are taken into consideration in the planning of all capital programs and projects at all level of government and that such programs and projects are carried out in a manner which recognizes the preservation of historic resources. The Plan's treatment of historic resources is consistent with the above-described policies of the state plan. Redevelopment Plan The omission of the redevelopment plan earlier adopted by the City, the failure to describe in the Plan redevelopment programs, activities, and land development regulations, and the exclusion from the Coastal Management Element of a redevelopment component did not render the Plan inconsistent internally or with the regional or state plans.
Conclusions Jurisdiction 86 Standing 88 The Act 91 Public Participation 91 Elements Required of All Plans 94 General 94 Future Land Use Element and Map 96 Public Facilities Element 97 Conservation Element 99 Housing Element 100 Capital Improvements Element 100 Coastal Management Element 101 Miscellaneous Elements 104 Determination of Noncompliance 105 General 105 Wetlands, Drainage, and Floodplains 106 Historic Resources 108 Remedial Action 108 RECOMMENDATION 108
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs determine that the Plan is not in compliance and, pursuant to Section 163.3184(9)(b), Florida Statutes, submit this Recommended Order to the Administration Commission for entry of an appropriate final order. RECOMMENDED in Tallahassee, Florida, this 2nd day of June, 1989. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-6338GM AND 89-0291GM Treatment Accorded the Proposed Findings of Petitioners Austin, Houston, and Dorn 1-16 Adopted. 17 Adopted in substance. However, Ms. Lawandales maintained in her office a color-coded map through much, if not all, of the planning process. 18-19 Rejected as subordinate. 20-21 Adopted. Rejected to the extent that the finding suggests that the Planning and Zoning Board did not intend that the City Council adopt the Plan. Although the Planning and Zoning Board did not formally recommend adoption by the City Council, the Board intended that the City Council adopt the Plan. Adopted. Rejected as recitation of testimony and subordinate. First four sentences adopted or adopted in substance. Remainder rejected as irrelevant. 26-27 Adopted in substance. 28-30 Rejected as subordinate. 31-33 Adopted in substance. Rejected as against the greater weight of the evidence. Adopted. Rejected as subordinate. Adopted in substance. 38-40 Rejected as irrelevant. 41 Rejected as subordinate. 42-43 Adopted. 44-46 Rejected as against the greater weight of the evidence. Adopted. Adopted in substance. 49-51 Rejected as irrelevant. 52 Rejected as against the greater weight of the evidence. 53-54 Rejected as recitation of testimony. 55 Adopted. 56-58 Rejected as irrelevant, except that the proposed finding that DCA found the Plan to be in compliance after using a balancing test is adopted in substance. Rejected as irrelevant. Rejected as against the greater weight of the evidence. 61-62 Adopted. Rejected as irrelevant. Adopted. 65-66 Rejected as irrelevant. 67-69 and 71 Rejected as legal argument. Rejected as against the greater weight of the evidence. Rejected as not finding of fact. 72-83 Rejected as irrelevant and against the greater weight of the evidence. 84-86 Rejected as irrelevant. Specific objectives and policies are insufficiently specific and, in certain respects, various Plan provisions represent nothing more than an intent to plan at a later date. However, such deficiencies must be evaluated in the context of all of the provisions of the entire Plan. After doing so, the only places at which the lack of specificity and deferral of planning are generate unlawful inconsistencies have been described in the recommended order. 87-91 Adopted or adopted in substance except that last sentence of Paragraph 91 is rejected as against the greater weight of the evidence. 92-93 Rejected as irrelevant. 94 Rejected as against the greater weight of the evidence. 95-98 Rejected as irrelevant. 99 and 111 Rejected as recitation of evidence. 100-110 and 112 Rejected as against the greater weight of evidence. 113 Rejected as not finding of fact as to the expertise of the witness. Rejected as against the greater weight of the evidence as to the inconsistency in the Plan's treatment of historic resources. Treatment Accorded Proposed Findings of Petitioners Hendry There are no rulings on the proposed findings of Petitioners Hendry due to the fact that it has been determined that they lack standing. Treatment Accorded Proposed Findings of DCA 1-4 Adopted. 5-18 Rejected as legal argument. 19-40 Adopted. 41 Rejected as irrelevant. 42-56 Adopted. 57 First sentence rejected as against the greater weight of the evidence. Second sentence adopted. 58-69 Adopted. 70 Adopted in substance. 71-72 Adopted. 73 First sentence adopted. Second sentence rejected as against the greater weight of the evidence. 74-75 Adopted in substance. Adopted. Rejected as legal argument. Treatment Accorded Proposed Findings of Cocoa I-IV Adopted or adopted in substance. Adopted except that Paragraphs B and C are rejected as legal argument. Adopted except that Paragraphs B.5, B.7, B.13, and B.14 are rejected as irrelevant and Paragraph B.8.f is rejected as against the greater weight of the evidence. Adopted in substance. Adopted or adopted in substance except that Paragraph G is rejected as against the greater weight of the evidence. COPIES FURNISHED: Judith E. Koons Attorney at Law Central Florida Legal Services, Inc. 1149 Lake Drive, Suite 201 Cocoa, FL 32922 David P. Hendry, pro se 17 Riverside Drive, #2 Cocoa, FL 32922 David J. Russ, Senior Attorney Rhoda P. Glasco, Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Bradly Roger Bettin Amari, Theriac, Roberts & Runyons 96 Willard Street, Suite 302 Cocoa, FL 32922 Thomas G. Pelham Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Laurence Keesey General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 ================================================================= AGENCY FINAL ORDERS ================================================================= STATE OF FLORIDA BEFORE THE ADMINISTRATION COMMISSION OMEGA AUSTIN, BEATRICE HOUSTON, and MARY DORN, Petitioners, vs. CASE NO. 89-31 DOAH CASE NO. 88-6338GM DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA, Respondents. / DAVID P. HENDRY, SR. and LOULA P. HENDRY, Petitioners, vs. CASE NO. 89-31 DOAH CASE NO. 88-0291GM DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA, Respondents. /
Findings Of Fact Pursuant to the Stipulation of Partial Settlement, including the attachment identified as "Exhibit A", (HO #3) filed at formal administrative hearing, the parties have agreed to the following amendments to the development order in settlement of the issues raised by the DCA as Count II in its petition for hearing. Paragraph 3. of the Vegetation and Wildlife section on pages 9 through 11 of Exhibit B. of the Gran Park DRI development order shall be amended to read: 3. The upland conservation areas designated on Map A shall be maintained in a manner that will promote the preservation and reproduc- tion of Salpingostylis coelstina (Bartram's Ixia) on the project site, by maintaining the existing hydrology and drainage patterns, and no application of fertilizers. The areas des- ignated on Map A as "upland conservation area to be managed as potential Bartram's Ixia hab- itat by periodic mowing" shall be mown every six months. Pursuant to the Stipulation of Partial Settlement filed on July 2, 1990, (HO #1) the parties have agreed to the following amendments to the development order in settlement of the issues raised by the DCA as Counts III and VI in its petition for hearing. Paragraph I.A. of the General Conditions section on page 1 of Exhibit of the Gran Park DRI development order shall be amended to read as follows: The Gran Park at Bayard Application for Development Approval (ADA) submitted September 6, 1988, as well as the Gran Park at Bayard Sufficiency Response Documents sub- mitted January 10, 1989, and March 1, 1989, and the commitments wherein, shall be made a part of this Development Order. The following paragraph shall be added to the end of the Land Use portion of the Specific Conditions section on pages 6 and 7 of Exhibit B. of the Gran Park DRI development order: The project shall be completed in two phases. Phase I of the project will consist of 428 acres of Light Industrial development (or its equivalent pursuant to the conversion ratios specified above). Phase I of the project shall run from September 26, 1990 through December 31, 1996. Phase II of the project will consist of 130 acres of Light Industrial development, 500,000 square feet of Office development and 80,000 square feet of Commer- cial development (or its equivalent pursuant to the conversion ratios specified above). Phase II of the project will run from January 1, 1997 through December 31, 2006. Paragraph 2. of the Transportation section on page 20 of Exhibit B. of the Gran Park DRI development order shall be amended to read: The applicant shall mitigate for the im- pacts of the project to the regional roadway network by pipelining pursuant to Rule 9J-2.0255, F.A.C. The project's required transportation improvements are as follows: Prior to occupancy of any portion of Phase II, the applicant will construct a three lane rural cross section on Old St. Augustine Road from Gran park Boulevard to U.S. 1 (approxi- mate distance is 0.9 mile) Prior to issuance of any building permit of more than 25 acres of light industrial de- velopment in Phase II of the project, or an equivalent amount of development based upon the conversion table approved herein, the Ap- plicant will cause a five lane urban section of Old St. Augustine Road from Gran Park Boulevard to U.S. 1 to be constructed. The total cost of the improvement on Old St. Augustine Road is estimated to be $1,546,000. If the Applicant does not cause the scheduled pipelined improvements to be constructed at the times specified in Conditions 2.1. and 2.b., then all development activities, as de- fined in Section 380.04, Florida Statutes, shall immediately cease, and no further building permits will be issued until such time as the scheduled improvements are con- structed and operational. Delays in the buildout date or phasing of the project caused by delays in the completion of the required transportation improvements shall not be exempt from the requirements of Subsection 380.06(19), Florida Statutes.
Recommendation Based on the foregoing, it is hereby recommended that the Florida Land and Water Adjudicatory Commission enter a Final Order DENYING the application filed by Gran Central Corporation for the Gran Park at Bayard development of regional impact. RECOMMENDED this 1st day of February, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 1st day of February, 1991.
The Issue The issue is whether Plan Amendment 98-51C adopted by the City of Ocala by Ordinance No. 2869 on August 4, 1998, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), has challenged the consistency of a plan amendment adopted by Respondent, City of Ocala (City). The amendment changes the land use on certain real property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando (Intervenor). By stipulation, the parties have agreed that SHASTA is a not-for-profit corporation whose members include residents of Marion County, Florida (County). Through the testimony of its registered agent, it was established that SHASTA is a "county- wide organization" formed in 1985 because of its concern "about where growth was going," and the potential impact of growth on the "plan." Another witness (Baldwin) made comments to the City at one of its meetings concerning the adoption of the plan. Whether she is a member of SHASTA is not of record, and it can reasonably be inferred that the witness resides and owns property outside of the City. SHASTA's registered agent also presented testimony at hearing, but whether she resides within the City or in the County is unknown. Finally, while SHASTA's registered agent presented argument during her opening statement concerning the organization's standing, she presented no evidence (through sworn testimony or exhibits received in evidence) that any member of the organization who resides, owns property, or owns or operates a business within the City made comments, recommendations, or objections to the City during the course of its review and adoption of the amendment. Therefore, there is insufficient evidence to demonstrate that Petitioner is an affected person within the meaning of the law. The City is a local government located within the County. It is one of five cities in the State designated by the Department of Community Affairs (DCA) as a "sustainable community" under Section 163.3244, Florida Statutes (1999). To this end, the City has entered into a sustainable community designation agreement with the DCA, and thus its plan amendments are not reviewed by the DCA or the regional planning council. Intervenor is an affected person since it owns the property which is the subject of the amendment. The amendment The City adopted plan amendment 98-51C by Ordinance No. 2869 on August 4, 1998. That amendment changed the land use on Intervenor's property from agriculture to public buildings and facilities. Section 1.1.12 of the City's Future Land Use Element specifies that the public buildings and facilities category "includes areas or facilities that serve the general public," such as "government buildings, public grounds, airports, cemeteries, churches and educational facilities." In making its recommendation, the City's Planning Department considered factors such as the type of soil on the property; the absence of known caves, sinkholes, or wetlands on the site; the suitability of the property for development; the property's location in the City's urban service area; the County's land use designation of the property as an urban land use; and the compatibility of the property with the surrounding land uses, including the proximity of the property to adjacent developments of regional impact (DRI), malls, large movie theaters, shopping centers, and other heavy commercial and retail development. In addition, the Planning Department considered the comments of other state and governmental agencies, including the DCA, St. Johns River Water Management District (SJRWMD), and County. The County did not object to the amendment. Based on the foregoing data and analysis, the Planning Department recommended to the City's Planning and Zoning Commission (Commission) that the plan amendment be adopted. The Commission in turn recommended to the City Council that the amendment be approved. That recommendation was accepted by the City on August 4, 1998. The property The subject property consists of 40 acres and was annexed into the City in 1998. It lies within the boundaries of the City at the southeastern corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue. Both roads are two-lane paved roads designated by the County as special scenic roads. This means that the right-of-way on those roadways cannot be widened or altered, and trees cannot be removed in or adjacent to the right-of-way. Prior to annexation, the property had a low-density residential land use designation in the County, and it was zoned agricultural. However, this zoning was inconsistent with the land use designation and a more likely zoning classification under the County comprehensive plan would have been R-1, which permits a maximum of four dwellings per acre. Had the property been assigned a City zoning classification most similar to the County's R-1, it would have received a low-density residential use allowing five residential units per acre. Intervenor purchased the property for the purpose of building a private school on the site. In the County, schools are located in both rural and urban areas. Under the County's land use designation for the property, schools are an allowable use. Before the property was annexed, it was located within what is known as the City's "urban service area." Under an interlocal agreement with the County, the City had the exclusive right to provide water and sewer services to that area and to condition the provision of such services upon annexation. At the time the plan amendment was adopted, the property immediately south of the subject property was being operated as a thoroughbred horse farm known as Glen Hill Farm. Immediately to the north and across Southwest 42nd Street was property with a land use designation of low-density residential allowing five residential units per acre. That property was previously approved as a planned unit development of mixed commercial and residential uses. The adjacent property on the northwest corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue has been developed as a high-density assisted living facility. Immediately behind the assisted living facility are two DRIs. The first includes retail uses (including a shopping center), professional and medical offices, two large apartment complexes (consisting of more than 700 units), and three or four nursing homes or adult living facilities; this DRI would allow a vocational or technical school with approximately 500 students. The second DRI consists of the Paddock Mall, which includes 580,000 square feet of developed retail use and another 173,000 square feet of available but undeveloped use. Across Southwest 27th Avenue to the west is property commonly known as the Red Oak Farm property, which is the subject of another plan amendment challenge by Petitioner in Case No. 98- 4144GM. That amendment allows medium-density residential use. Finally, the property is located within one mile of the fastest growing and most intensively developed property within the City, which lies in and around State Road 200. The objections raised by Petitioner In its Amended Petition filed on November 2, 1998, SHASTA has alleged that the plan amendment is not in compliance for a number of reasons. They include contentions that the property is unsuitable for a private high school in that all of the land slopes to the south where extensive flooding has occurred (paragraph 9); that the site cannot be engineered to prevent flooding or that control surface water flow by retention ponds will leak into the aquifer (paragraph 10); that the site is vulnerable to stormwater pollution (paragraph 11); that the City has inadequate data and analysis to support development regulations for natural resources protection, including sinkholes and floodplains pursuant to the Conservation Element (paragraph 12); that the City has not specified how sinkholes or solution pipes to the aquifer will be protected pursuant to Policies 1.5 and 1.7 of the Conservation Element (paragraph 13); that the City has violated Policy 1.4 of the Conservation Element by not continuing the County land use designations on the property (paragraph 14); that the City has not distributed proposed interlocal agreements for annexation and future land uses as required by Policy 2.8 of the Future Land Use Element (paragraph 15); that the amendment is not in compliance with Goal II of the Future Land Use Element (paragraph 16); that the amendment is not in compliance with Policy 3.5 of the Intergovernmental Coordination Element (paragraph 17); that the amendment is inconsistent with revisions made by the 1998 Legislature concerning school siting in Section 163.3177(6)(a), Florida Statutes (1999)(paragraph 18); that the amendment does not further "the six broad principles of sustainability," as set forth in Section 163.3244(1), Florida Statutes (1999)(paragraph 19); that extending water and sewer lines to the property is unfair to City taxpayers (paragraph 20); that City taxpayers will be forced to pay a higher rate to fund expansion of City services into the area (paragraph 21); and that the school will not be compatible with adult living facilities located northwest of the property (paragraph 24). Allegations not raised until hearing, such as a contention that the amendment would promote urban sprawl, were deemed to be untimely raised and were not considered. Finally, concerns about the specific design of the school, assuming one is built, are not relevant to a determination of whether the amendment is in compliance. As to the allegation in paragraph 18 concerning the amendment's lack of compliance with school siting requirements in Section 163.3177(6)(a), Florida Statutes, that allegation is irrelevant since the new law became effective more than a year after the amendment was adopted. Likewise, the allegation in paragraph 19 has been found to be irrelevant for the reasons stated in the Conclusions of Law, while the allegation in paragraph 16 regarding Goal II of the Future Land Use Element has no relevance to the amendment since it refers to a transportation concurrency exception/urban area redevelopment area, a matter not in issue here. Finally, the allegations in paragraphs 20 and 21 regarding the potential for taxes being raised are not grounds on which to find an amendment not in compliance. The undisputed (and only) evidence shows that there are no sinkholes or known wetlands on the property; that the property did not have a conservation land use under the County's Comprehensive Plan; that the City has entered into an interlocal agreement with the County establishing an urban service area; that the amendment is compatible with surrounding land uses, including adult living facilities; and that the City considered and analyzed all of the data summarized in Findings of Fact 6 and 7 before it adopted the amendment. Therefore, the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition have not been sustained. Still in issue are the allegations in paragraphs 9-11 of the Amended Petition concerning potential flooding and stormwater pollution. They will be discussed below. The property The property was once one of the three largest horse farms in the County. These farms have already been developed or, as is the case here, are in the process of being developed. The entire City, including Intervenor's property, and most of the land in the County, lie within a Karst sensitive area, which features sinkhole and cave systems. Mapped and documented cave systems are found approximately one-half mile to the west- southwest (Briar Cave) of the property and a like distance to the east (Oak Creek Caverns). However, no sinkholes, caves, or wetland systems have been found on the property, and the rules of the SJRWMD pertaining to Karst sensitive areas do not prohibit the construction in question. The tract is part of a high Floridan Aquifer (Aquifer) recharge area which permits very rapid infiltration of surface waters to the Aquifer, and it discharges into a 100-year-old flood plain. However, the property itself is not located in a flood plain. Two basic soils are found on the property. They are the Kendrick soil and Zuber soil. Due to shrinkage or swelling of the clay and "low strength," these types of soil present "slight" or "moderate" construction limitations. Expert testimony confirmed, however, that through good planning and design, or presite removal of the soils, these limitations could be readily overcome. This was also acknowledged by two of Petitioner's witnesses. At the same time, if SJRWMD regulations for construction of water retention areas in Karst sensitive areas are followed, those limitations would be resolved. Typically, the City does not impose specific requirements concerning stormwater retention or groundwater protection at the comprehensive plan stage. Rather, these are normally imposed through the City's land development regulations at the site plan stage of the process. Presumably, at that point, Petitioner will have an opportunity to raise these types of concerns. The City has had experience with other properties having Karst topography and water recharge features similar to the property in question. For example, on the Heathbrook DRI, the City imposed groundwater protection provisions which other local governments throughout the State have used as a model for other developments. To prevent groundwater contamination, the City uses a tool called a DRASTIC Index (Index), which was prepared by the United States Environmental Protection Agency. The Index is used by the City and a host of other regulatory agencies to determine the potential of property for groundwater contamination. According to the Index, the property is less vulnerable to contamination than approximately seventy percent of the rest of the land in the County. City water facilities are available in the right-of-way on the north and west sides of the property, while City sanitary sewer facilities are approximately one-half mile away. If the project goes forward, Intervenor would be required to run sewer lines from the existing sewer facility to the improvements to be located on its property. If stormwater retention facilities are constructed on the property pursuant to City land development regulations, more pre-development water would be retained on the property than would be the case if the property were not developed. In addition, less runoff would be generated from the property if it were developed under the public buildings and facilities land use than would occur if the property was developed under the City land use most comparable to the County's R-1 classification. The potential for flooding Because the property slopes from the north to the south, stormwater run-off naturally flows over the property to the south and east across Glen Hill Farm to a natural low area or pond located on that farm. The evidence shows that in February and March 1998, when unusually heavy rains occurred, substantial flooding occurred on the farm, causing one of its road to be closed for almost two weeks. Intervenor has entered into an agreement with Glen Hill Farm whereby the farm has agreed to allow a portion of stormwater to continue to flow onto its property. Without such an agreement, the City would have required that Intervenor retain all stormwater from a 100-year storm on its property. A stormwater run-off system and a drainage system can be designed on the property to fully satisfy the SJRWMD's Karst sensitive development regulations. Such a system will retain all post-development run-off created by a 100-year storm. Thus, development of the property is unlikely to cause flooding on adjacent properties. Stormwater runoff As noted above, the SJRWMD has promulgated regulations for the design and construction of drainage systems and drainage basins within Karst sensitive areas, which are designed to protect against stormwater run-off contamination of the underlying aquifer. These regulations are more stringent than those that apply to other areas; if adhered to by Intervenor, they will adequately contain and control stormwater run-off and prevent groundwater contamination. In order to develop the property, Intervenor will be required to go through the site plan approval process with the City and to comply with the SJRWMD Karst sensitive regulations. Sufficient testing has been performed on the property to determine that stormwater retention systems may be designed for the property which will avoid unreasonable risk of groundwater contamination. The land use assigned to the property has less potential for detrimental impact upon the environment than would occur had the County permitted development using an R-1 classification, or a similar one by the City upon annexation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Ocala enter a final order finding Plan Amendment 98-51C to be in compliance. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER , 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 28th day of July, 2000. COPIES FURNISHED: Darlene Weesner, Registered Agent Shady Historic and Scenic Trails Association, Inc. 655 Southwest 80th Street Ocala, Florida 34476 W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A. 7 East Silver Springs Boulevard Suite 500 Ocala, Florida 34470-6659 Bryce W. Ackerman, Esquire Hart & Gray Post Office Box 3310 Ocala, Florida 34478-3310 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Town of Yankeetown (Town) plan amendment 08-01 (adopted by Ordinance 2007-10) and plan amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by remedial amendment 09-R1 (adopted by Ordinance 2009-02) (together, referred to as the Plan Amendments or the Revised Comprehensive Plan), are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (2009).1
Findings Of Fact The Town is located in the southwest corner of Levy County. The Town is bounded on the east by the Town of Inglis, on the north by unincorporated Levy County, on the west by the Gulf of Mexico, and on the south by the Withlacoochee River. The Town has significant planning challenges due to its geographic location. The maximum elevation in the Town is 10 feet, and the entire Town is located in the 100-year floodplain and Coastal High Hazard Area (CHHA). The Town is located in a rural area north of the banks of the Withlacoochee River and is surrounded by wetlands and environmentally-sensitive land. The Town is located at the end of County Road 40, and is separated from the nearest intersection of major roads (State/County Road 40 and U.S. 19) by the Town of Inglis. The Plan Amendments are a community-generated plan that incorporates the results of an extensive community visioning survey conducted by the Town and numerous public meetings that exceeded the public participation requirements for plan amendments contained in Florida Administrative Code Rule Chapter 9J-53 and Chapter 163, Florida Statutes. The Plan Amendments resulted in a Revised Comprehensive Plan for the Town. IWI is a legal entity that owns land within the Town and submitted oral or written comments on the Plan Amendments during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the Plan Amendments. IWI contends that the Plan Amendments are not "in compliance" for several reasons. Population Projections and Need In its pleadings, IWI contended that "[t]here is inadequate data regarding projected population growth and the infrastructure needed to support the projected population growth for both the short term (five years) and the long term (horizon of the plan)"; "[t]he Plan Amendment is not in compliance with [Section] 163.3177(6)(a) Florida Statutes, by failing to provide future land use categories that are based on need"; and "[t]he Plan Amendment is not in compliance with the requirements of 9J- 5.006, Florida Administrative Code, demonstrating that future land use is based on need." Prehearing Stipulation § 2.H., U., and GG. However, its expert planning witness, Gail Easely, conceded that the data and analysis submitted by the Town was adequate to demonstrate that the residential land uses in the Revised Comprehensive Plan are based on need. IWI limited its contention on this point to the alleged inadequacy of the data and analysis to support the Revised Comprehensive Plan's new Light Industrial land use and revised commercial land use designations. The Revised Comprehensive Plan designates the same areas for commercial as the currently effective Comprehensive Plan, with the exception of one parcel that was changed from commercial to Light Industrial. The Revised Comprehensive Plan designates the commercial parcels near the Withlacoochee River as Commercial Water Dependent and the other commercial parcels as Commercial Neighborhood, totaling approximately 51 acres. Of the 51 acres of commercially-designated land, approximately 26 acres are currently developed and 25 acres are vacant and undeveloped. Of the 26 developed commercial acres, 19 parcels are currently developed and utilized as residential. There is no shortage of land available for commercial development in the Town. Inglis, a town located adjacent and to the east of Yankeetown, and Levy County near Yankeetown provide "more than adequate" existing commercial buildings on the market to serve the residents of Yankeetown and surplus vacant commercially- designated land to serve the future needs of Yankeetown. There is no shortage of commercial potential near the Town. The evidence was that it is acceptable for a local government to plan for the future need for the availability of commercial and industrial lands by maintaining the existing proportionate of availability of land use categories. Alternatively, it is acceptable to plan to mimic the proportions found to exist in other communities. This is essentially how the Town planned its allocation of commercial and industrial lands in its Revised Comprehensive Plan. IWI also contended that the intensity standards for commercial and industrial land uses in the Revised Comprehensive Plan unduly restrict commercial development. The existing Comprehensive Plan did not have explicit intensity standards and criteria for commercial land uses. After extensive debate at numerous public hearings, the Revised Comprehensive Plan established a floor/area ration (FAR) of 0.07, which limits the size for each single structure to a maximum of 3,000 square feet. It also allows for multiple 3,000 square foot structures on larger parcels in a "campus style" development. These standards and criteria reflect the existing, built environment of the Town and the Town's vision of itself. Existing commercial buildings run from 960 square feet to 3,600 square feet. Although the existing Comprehensive Plan did not have an FAR ratio, other standards--such as setbacks, square footage required for on-site septic tanks, drainfields, and parking, a 50 percent open space ratio, and a building height restriction of 35 feet--restricted commercial development in a manner similar to the Revised Comprehensive Plan. Petitioner's expert economist, Dr. Fishkind, testified that the restrictions on intensity of commercial land uses are not financially feasible because not enough revenue can be generated to make a profit, given the cost of land in Yankeetown. His testimony was refuted by his University of Florida colleague, Dr. James Nicholas, who was called as an expert economist for the Town. Dr. Nicholas pointed out that there was some commercial use in the Town and that economics would lower the cost of land in the Town if it is too expensive to allow the kind of commerce desired by the Town to make a reasonable profit. Businesses requiring more space to make sufficient revenue could locate outside the Town but close enough in Inglis or Levy County to serve Yankeetown as well. The character of the Town, its limited projected population growth, and the availability of commercial development nearby in Inglis and in Levy County all support the Town's decision to limit the intensity of commercial land use, and to maintain the existing amount of land available for commercial and light industrial uses. 15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require the designation of some industrial lands, and the Revised Comprehensive Plan changes the designation of six acres of land located to the west of the intersection of County Roads 40 and 40-A from "Commercial" to "Light Industrial." Since industrial uses are generally not compatible with residential uses, the Light Industrial parcel is separated from residential parcels by commercial. The Light Industrial parcel is allocated for more intense commercial uses (such as fishing trap and boat storage) or reserved for economic development of light industrial uses that may wish to locate in Yankeetown, such as aquaculture. The existing ratio of residential to commercial land is adequate to supply the existing need as reflected by the existing surplus, vacant, and unused commercial lands. The Plan Amendments maintain residential lands and commercial lands in their general designations with refinements to the categories. The existing ratio and availability of vacant commercial land indicate that there is no deficit in any category, and maintaining the existing residential/commercial ratio preserves the existing character of the Town. Urban Service Area versus Urban Service Boundary IWI contends that "[t]he Plan Amendment is not in compliance with [Section] 163.3177(14), Florida Statutes, by failing to ensure that the urban service boundary was appropriately adopted and based on demonstrated need." This contention has no merit. Section 163.3177(14), Florida Statutes, encourages a local government to adopt an "urban service boundary." If one is adopted, there must be a demonstration "that the amount of land within the urban service boundary does not exceed the amount of land needed to accommodate the projected population growth at densities consistent with the adopted comprehensive plan within the 10-year planning timeframe." If a local government chooses to adopt an "urban service boundary" under Section 163.3177(14) and a community vision under Section 163.3177(13), Florida Statutes, it may adopt plan amendments within the urban service boundary without state or regional agency review. See § 163.3184(17), Fla. Stat. The Revised Comprehensive Plan does not use the term "urban service boundary," and the Town did not intend to adopt one under Section 163.3177(14), Florida Statutes, nor did it seek to avoid state and regional agency review of plan amendments under Section 163.3184(17), Florida Statutes. Instead, as explained on page 6 of the Revised Comprehensive Plan, it uses the term "urban area" to designate an area allowed to receive development rights from the sending area, namely the Residential Environmentally Sensitive (formerly Conservation) land use district. The Revised Comprehensive Plan uses the term urban service "area" (rather than "boundary") as the area located generally between County Roads 40 and 40-A that can receive development rights transferred from the Residential Environmentally Sensitive land use district. This area is depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the Future Land Use Map (FLUM) series to more clearly designate the area on a larger scale than the FLUM map of the entire Town (Map 2008-05). The existing FLUM series also used the term "urban area" to depict the transfer of development rights receiving area. Financial Feasibility and Capital Improvements IWI’s expert, Dr. Henry Fishkind, testified that he ran his Fiscal Impact Analysis Model for the Town and concluded that the Revised Comprehensive Plan is not financially feasible because the Town cannot generate sufficient operating revenue to cover its operating costs without increasing property tax rates. Dr. Fishkind was not asked to explain how his computer model works, give any specific modeling results, or explain how he reached his conclusion. The Town's expert, Dr. James Nicholas, refuted his University of Florida colleague's testimony on this point as well. Essentially, Dr. Nicholas testified that a small and unique community like Yankeetown can choose to limit its operating costs by relying on volunteers and part-time employees. In this way, it can operate on a bare-bones budget that would starve a more typical and larger community. It also could choose to increase property tax rates, if necessary. Recent amendments to Chapter 163, Florida Statutes, in Senate Bill 360, the "Community Renewal Act," which became effective June 1, 2009, postponed and extended until December 1, 2011, the statutory requirement to maintain the financial feasibility of the five-year capital improvements schedule (CIS) for potable water, wastewater, drainage, parks, solid waste, public schools, and water supply. However, the Town concurred with Petitioner in requesting findings of fact and conclusions of law on this issue in case Senate Bill 360 is struck down in a pending constitutional challenge. The Plan Amendments include a CIE (Chapter 8) with a five-year CIS and a table to identify sources of revenue and capital projects sufficient to achieve and maintain the adopted levels of service, supported by data and analysis submitted with the Remedial Amendments. The Town's CIS five-year lists projects to achieve and maintain the adopted level of service (LOS) standards and identifies funding sources to pay for those projects. It describes the projects and conservatively projects costs and revenue sources. The CIS identifies revenue sources and capital projects for which there are committed funds in the first three years and identifies capital projects for which funds have not yet been committed in year four or year five. CIS is adequate to achieve and maintain the adopted level of service and is financially feasible. Stormwater and Drainage A drainage LOS is adopted in Revised Comprehensive Plan Policy 4.1.2.1, which states: "All new development and expansion of existing residential development greater than 300 square feet of additional impervious coverage shall meet requirements under Chapter 62-25, F.A.C. for Outstanding Florida Waters." The exemption of minor residential improvements of 300 square feet or less is reasonable and does not violate Rule Chapter 9J-5 or Chapter 163, Florida Statutes. The Department's ability to require retrofitting for existing drainage problems is limited by Rule Chapter 9J- 5.011(2)(c)5.b.i., which states that the Rule "shall not be interpreted or applied to [m]andate that local governments require existing facilities to be retrofitted to meet stormwater discharge water quality standards or stormwater management level of service standards." Nonetheless, the Town agreed in the Compliance Agreement to adopt appropriate policies and provide additional data and analysis on this issue. Policy 4.1.2.13 requires that the "Established Storm Water Drainage Committee shall monitor storm water facilities in [the] town, oversee maintenance functions, and evaluate and recommend capital improvements projects and funding sources." To pay for stormwater capital improvement projects, Policy 4.1.2.14 in the Plan Amendments states: "Yankeetown shall adopt a storm water utility fee ordinance and establish storm water utility fees by December 31, 2009 to provide necessary funding for capital improvements to the Town's storm water drainage facilities and maintenance of storm water drainage facilities." In accordance with the Compliance Agreement, the Town modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5) for the stormwater drainage improvement project and adding Note 5 to Table 1, which states: "Anticipated to be funded by a 75%/25% matching grant from SWFWMD, DEP or DCA. The matching (town) funds will be obtained from the proposed stormwater improvement fund. If no grants can be obtained and the stormwater improvement fund is not approved[,] the project will be funded from the general fund reserves and long term loans." Because the stormwater utility fee ordinance must still be adopted, and these funds are not technically committed at the time of adoption of the Plan Amendments, the stormwater capital improvement project was placed in year 5 (2011-1012) of the CIS. As funding becomes available and committed, the project may be moved to an earlier year in required annual updates to the CIS. Drainage also is addressed in new Objective 4.3.2 and in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed stormwater and drainage appropriately in the Revised Comprehensive Plan. Proportionate Share and Concurrency Management Policy 4.1.2.6 in the Public Facilities Element states: "The Town shall consider, and adopt as appropriate, a means to ensure that new development shares proportionate responsibilities in the provision of facilities and services to meet the needs of that development and maintain adopted level of service standards." Policy 8.1.3.4 in the CIE of the Revised Comprehensive Plan states: The Town shall consider, and adopt as appropriate, a means to ensure that new development shares a proportionate cost on a pro rata basis in the provision of facilities and services necessitated by that development in order to maintain the Town’s adopted level of service standards. Proportionate costs shall be based upon, but not limited to: Cost for extension of water mains, including connection fees. Costs for all circulation and right-of-way related improvements to accommodate the development for local roads not maintained by Levy County. Costs to maintain County Road 40 and 40[-]A and any other road within the town that are maintained by Levy County shall be governed by the Levy County Proportionate Share Ordinance and Yankeetown will continue to adopt and ensure the level of service is maintained [through] coordination mechanisms between the two planning departments. Costs for drainage improvements. Costs for recreational facilities, open space provision, fire protection, police services, and stormwater management. Although the Town does not have any public facility deficiencies, Rule Chapter 9J-5 requires that the CIE address "[t]he extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards"; and include a policy that addresses programs and activities for "[a]ssessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards . . . ." Fla. Admin. Code R. 9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this requirement. The statute forming the basis of IWI’s contentions regarding proportionate fair share is Section 163.3180(16)(a), Florida Statutes, which requires local governments "to adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." The evidence was that the requirements of this statute will be met by the Town's Proportionate Fair Share Concurrency Management Ordinance, which had been drafted and scheduled for adoption hearings at the time of the final hearing, and which will implement Policy 8.1.3.4. IWI did not present any evidence regarding the alleged lack of a concurrency management system in the Revised Comprehensive Plan and did not prove that the Revised Comprehensive Plan fails to meet the requirements of Rule 9J- 5.055 for concurrency management. The Town is exempt from maintaining school concurrency requirements. Objective 8.1.3 and Policies 8.1.3.1 through 8.1.3.6 of the Revised Comprehensive Plan meet the requirements of Rule 9J-5.055 for concurrency management. Policy 8.1.3.6 states: "The Town shall evaluate public facility demands by new development or redevelopment on a project by project basis to assure that capital facilities are provided concurrent with development." Policy 8.1.3.3 states: "The Yankeetown Land Development Code shall contain provisions to ensure that development orders are not issued for development activities which degrade the level of service below the adopted standard as identified in each comprehensive plan element. Such provisions may allow for provision of facilities and services in phases, so long as such facilities and services are provided concurrent with the impacts of development." The Town has a checklist system to track the specific impact of each development order on LOS concurrent with development. As indicated, a Proportionate Fair Share and Concurrency Management Ordinance had been drafted and scheduled for adoption hearings. Wastewater Treatment and Water Quality The Town is located entirely within the 100-year floodplain and coastal high hazard area. See Finding 2, supra. This presents challenges for wastewater treatment. The adoption of the Revised Comprehensive Plan followed public meetings and workshops held with representatives of DCA, including Richard Deadman, and expert Mark Hooks, formerly with the State of Florida Department of Health and Rehabilitative Services and now with the State of Florida Department of Health. The Plan Amendments include Policy 8.1.3.1.1, which states in part: Due to the location of the town within the 100 year flood plain and within the Coastal High Hazard Area (CHHA), there are no plans to provide central wastewater treatment until a regional system can be developed in conjunction with the neighboring town of Inglis and Levy County, and constructed outside the Coastal High Hazard Area east of U.S. Highway 19. In the interim period before a regional central wastewater system is available, the Town shall require in all land use districts: a. Yankeetown shall develop a strategy to participate in water quality monitoring of the Withlacoochee River; b. develop an educational program to encourage inspection (and pump-out if needed) of existing septic tanks; c. all new and replacement septic tanks shall meet performance based standards (10mg/l nitrogen). The Town's approach to wastewater treatment under the circumstances is sound both economically and from planning perspective and is sufficient to protect natural and coastal resources, including water quality, and meet the minimum requirements of Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is direction in the State Comprehensive Plan to: "Avoid the expenditure of state funds that subsidize development in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat. This direction is also found in Chapter 163.3178(1), Florida Statutes, and in Rule 9J-5.012(3)(b)5., which require local governments to limit public expenditures that would subsidize development in the CHHA. It also is impractical for the Town, with a population of 760 people, to fund and operate a central wastewater system. It is logical and economical to do this in partnership with the adjoining Town of Inglis and Levy County, which could share in the costs and provide a site for a regional wastewater facility located nearby but outside of the CHHA. In contrast, this approach was not a viable option for the entirety of the Florida Keys. The Town already has begun water quality testing under Policy 8.1.3.1.1.a. The Town will be required to prepare educational programs to encourage inspection of existing septic tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and under new Policy 4.3.1.2. In the short-term, while the Town pursues a regional treatment facility located outside the CHHA, Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be implemented by new Policy 4.1.2.1.IV.B., which states: Yankeetown shall require that all new or replacement sanitary sewage systems in all land use districts meet the following requirements: All new or replacement sanitary sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters. Joints between sewer drain components shall be sealed with caulking, plastic or rubber gaskets. Backflow preventers are required. All new or replacement sanitary sewage systems shall be located and constructed to minimize or eliminate damage to them and contamination from them during flooding. The DCA has objected and recommended, and Yankeetown has concurred that all new and replacement septic systems are to be performance-based certified to provide secondary treatment equivalent to 10 milligrams per liter maximum Nitrogen. Performance-based treatment systems that are accepted as achieving the 10 mg/l nitrogen standard have already been tested by the National Sanitation Foundation and approved by the State of Florida Department of Health. Performance-based systems achieving the 10 mg/l nitrogen standard have been certified and approved for use in Florida and are now available on the market "in the $7,200 range" for a typical two- or three-bedroom home, and there are systems that would meet the 10mg/l nitrogen standard for commercial and multi-family buildings. Compliance with the performance-based 10 mg/l nitrogen standard is measured at the treatment system, not in the receiving water, and additional nutrient removal and treatment occurs in the drainfield soils. Performance-based treatment systems also require an operating permit and routine inspection and maintenance, unlike conventional septic tanks. The United States Environmental Protection Agency stated in its 1997 report to Congress: "Adequately managed decentralized wastewater systems are a cost-effective and long- term option for meeting public health and water quality goals." The existing Comprehensive Plan addresses wastewater in Chapter 4, Policy 13-2, which states: "Prohibit the construction of new publicly funded facilities or facilities offered for maintenance in the coastal high hazard area (including roads, water, sewer, or other infrastructure)." It also is addressed in the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and 3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7 (Vol. II, pp. 32, 34). A more in-depth analysis of the Town's previous approach to wastewater treatment is found in Volume III, Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis, Sanitary Sewer"), which expresses similar long-term and interim approaches to wastewater treatment. The Revised Comprehensive Plan removes confusing and out-of-date references to "class I or other DOH-approved aerobic systems" used in the existing Comprehensive Plan. The Plan Amendments contemplate that the Town will pursue a long-term solution of a regional wastewater facility with the Town of Inglis and Levy County to be located outside the CHHA. The Revised Comprehensive Plan is adequate to protect the natural resources in Yankeetown and includes a short-term requirement that all new and replacement septic tanks meet the 10 mg/l nitrogen standard measured at the performance-based treatment system, together with a long-term requirement that the Town pursue a regional wastewater treatment plant to be located outside the CHHA. The Plan Amendments include: Objective 4.1.3; Policies 4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy 5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and Policy 10.1.2.3. These provisions move the Town in the direction of a regional central wastewater treatment located outside the CHHA and establish appropriate interim standards. Petitioner contended that the Town has allocated money for a new park when it needed a new central wastewater treatment facility. But the evidence was that the money for the new park came from a grant and could not be used for a new central wastewater treatment facility. Protection of Natural Resources and Internal Consistency The Future Land Use Element (FLUE) and the FLUM in the Revised Comprehensive Plan contain "Resource Protection" and "Residential Environmentally Sensitive" land use designations. In the existing Comprehensive Plan, these lands are designated Public Use Resource Protection and Conservation, respectively. The Plan Amendments reduce density in the Residential Environmentally Sensitive land use district, which contains a number of islands, to a maximum gross density of one dwelling unit per ten gross acres and maximum net density of one dwelling unit per five acres of uplands. Policy 1.1.2.1 in the Plan Amendments would allow development rights to be transferred from the Residential Environmentally Sensitive land to the development rights area receiving zone located between County Roads 40 and 40-A, as shown in Map 2008-02. The current Conservation designation for those lands sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in the existing Comprehensive Plan allows the transfer of development rights within the Conservation district "as long as gross density does not exceed 1 dwelling unit per 5 acres." Under Policy 1-2 of the existing Comprehensive Plan, a minimum of "two (2) acres of uplands" is required for a development in the Conservation land use district. Likewise, under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two (2) contiguous natural pre-development upland acres" is required in the Residential Environmentally Sensitive land use district. Although allowed, few if any transfers of development rights actually occurred under the existing Comprehensive Plan. To provide additional incentive to transfer development out of the "Residential Environmentally Sensitive" land use district and into the urban receiving area, Policy 1.1.2.7.F. of the Plan Amendments would allow the land owner to retain private ownership and passive recreational use on the "sending" parcel, including one boat dock. All other development rights on the sending parcel would be extinguished. Besides facilitating the transfer of development rights, it is expected that use of boat docks on the islands will decrease environmental damage from boats now grounding to obtain access to the islands. Although the policies for Environmentally Sensitive Residential and Conservation Lands are slightly different, the minor differences do not fail to protect natural or coastal resources or fail to meet the minimum criteria set forth in Rule Chapter 9J-5 and Chapter 163, Florida Statutes. Numerous policies in the Plan Amendments establish standards and criteria to protect natural and coastal resources, including: Policy 1.1.2.1.7(i), restricting dredging; Policies 1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of wetlands; Policy 5.1.6.7, establishing wetlands setback buffers; Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1, limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5, establishing standards and criteria for docks and walkways; Policy 5.1.16.1, protecting certain native habitats as open space; Policy 1.1.1.3, establishing low-impact development practices for enhanced water quality protection; and Policy 5.1.5.1, protecting listed species, including manatees. These provisions are more protective than the provisions of the existing Comprehensive and are supported by data and analysis. The Plan Amendments acknowledge and protect private property rights and include Objective 1.1.11 (Determination and Protection of Property Rights), providing for vested rights and beneficial use determinations to address unintended or unforeseen consequences of the application of the Plan Amendments in cases where setbacks cannot be achieved for specific development proposals due to lot size or configuration. FLUE Policy 1.1.1.2.8 and Conservation and Coastal Management Element Policy 5.1.6.4 in the Plan Amendments sets out procedures, standards, and criteria (including mitigation) for variances from the 150- foot Nutrient Buffer Setback. Taken as a whole, the Plan Amendments protect natural and coastal resources within the Town. Internal Consistency Docks, Open Space, and Dredge and Fill IWI contends that the Plan Amendments are internally inconsistent because policies addressing docks, open space, and dredging requirements use different language and with different meanings in different contexts. Policies in the Revised Comprehensive Plan establish 100 percent open space requirements for certain natural habitats, namely: (a) submerged aquatic vegetation; (b) undisturbed salt marsh wetlands; (c) salt flats and salt ponds; (d) fresh water wetlands; (e) fresh water ponds; and (f) maritime coastal hammock. Pile-supported, non-habitable structures such as boat docks and walkways are allowed if sited on other portions of a site. (Conservation and Coastal Management Element Policies 5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1). Other policies limit dredging to maintenance dredging. Policy 5.1.5.1 states that the Town will: Prohibit all new dredge and fill activities, including construction of new canals, along the river and coastal areas. Maintenance dredging of existing canals, previously dredged channels, existing previously dredged marinas, and commercial and public boat launch ramps shall be allowed to depths previously dredged only when the applicant demonstrates that dredging activity will not contribute to water pollution or saltwater intrusion of the potable water supply. Applicant must also demonstrate that development activities shall not negatively impact water quality or manatee habitat. Maintenance dredging is prohibited within areas vegetated with established submerged grass beds except for maintenance dredging in public navigation channels. This prohibition does not preclude the minor dredging necessary to construct "pile supported structures such as docks and walkways that do not exceed 4’ in width and constructed in accordance with OFW and Aquatic Preserve regulations," which are specifically exempted and allowed by Policy 5.1.5.7 of the Plan Amendments. Additional dredging and filling activities (beyond installation of pile supports) would not be required for docks sited where adequate water depth exists. Docks and walkways allowed under Policy 5.1.5.7 are not counted as open space. The policies concerning docks and walkways can be reconciled and do not render the Plan Amendments internally inconsistent. Low-Impact Development Policies IWI also contends that policies in the Plan Amendments requiring and encouraging low-impact development (LID) practices (which are not required or mandated under minimum requirements of Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but adopted for additional water quality protection) are internally inconsistent. The Plan Amendments require LID practices for some new uses (new subdivisions, planned unit developments, and commercial development) and encourage them for existing uses. The Plan Amendments require or encourage these practices in different land use districts, which address different commercial or residential uses, and also discuss these practices in different elements of the Revised Comprehensive Plan, which addresses different purposes and concerns, including the FLUE (Chapter 1), the Public Infrastructure Element (Chapter 4), and the Coastal Management Element (Chapter 5). FLUE Policy 1.1.1.3 states that: In addition to complying with Outstanding Florida Water (OFW) standards, all new subdivisions, planned unit developments, and commercial development in all land use districts shall utilize "low impact" development practices appropriate for such use including: Landscaped biofiltration swales; Use native plants adapted to soil, water and rainfall conditions; Minimize use of fertilizers and pesticides; Grease traps for restaurants; Recycle storm water by using pond water for irrigation of landscaping; Dry wells to capture runoff from roofs; Porous pavements; Maintain ponds to avoid exotic species invasions; Aerate tree root systems (for example, WANE systems); Vegetate onsite floodplain areas with native and/or Florida-friendly plants to provide habitat and wildlife corridors; Rain barrels and green roofs where feasible; and Use connected Best Management Practices (BMPs) (treatment trains flowing from one BMP into the next BMP) to increase nutrient removal. Existing development shall be encouraged, but not required to use the above recommendations and shall not be considered nonconforming if they do not. In the Residential Low Density land use district, FLUE Policy 1.1.2.2.5 states: "All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' development practices that may be required or recommended in the Land Development Regulations." In the Residential Highest Density land use district, FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are encouraged to utilize site suitable storm water management such as connecting to swales where available. All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' practices that may be required or recommended in the Land Development Regulations." In the Resource Protection and Public Use land use districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID practices for all development. In the Neighborhood Commercial land use district, FLUE Policy 1.1.2.7.6 requires LID practices for "all development." In the Commercial Water-Dependent land use districts, FLUE Policy 1.1.2.8.9 requires LID practices for "all new commercial development." In the Light Industrial land use district, FLUE Policy 1.1.2.9.2 requires LID practices for "all development." These policies can be reconciled. The use of slightly different language in a particular district, or creation of an exemption for existing uses, does not render the policies internally inconsistent. Policy 4.2.2.2 of the Public Infrastructure Element (Chapter 4) of the Plan Amendments requires the adoption of land development regulations (LDRs) establishing minimum design and construction standards for new subdivisions, planned unit developments, and commercial development that will ensure that post development runoff rates do not exceed predevelopment runoff rates and encourage the same LID practices set out in FLUE Policy 1.1.1.3. IWI also contends that the inclusion of the phrase "as appropriate for such use" in the LID policies is internally inconsistent. To the contrary, it acknowledges that some of the listed practices may not be appropriate for a proposed specific use. For example, subsection (d) on "grease traps for restaurants" would not be appropriate if no restaurant is proposed. Under Section 163.3202, Florida Statutes, the Town has a year to adopt implementing LDRs providing further details, standards, and criteria for low-impact development BMPs for specific uses and within specific districts. The use of the phrase "as appropriate for such use" in the low-impact development policies allows for the exercise of engineering discretion in formulating LDRs. It does not render the policies internally inconsistent. Setbacks and Variances IWI also contends that the Plan Amendments are internally inconsistent because buffers contain different setback distances and allow for a variance to the setback buffers. The policies addressing setbacks can be read together and reconciled. The Plan Amendments include two types of setback buffers adopted for different purposes: (1) for structures, a 50-foot setback from the river and wetlands in Policies 1.1.1.2.7 and 5.1.6.7; (2) for sources of nutrient pollution other than septic systems (such as fertilized and landscaped areas and livestock sources), a 150-foot nutrient buffer setback from the river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic systems, special setbacks in Policy 1.1.1.2.11 (which is referred to in the nutrient buffer setback policies). These different setback policies were adopted for different purposes and are not internally inconsistent. Data and analysis supporting the establishment of these different setbacks further explains the different purposes of the different types of setbacks adopted in the Revised Comprehensive Plan. The availability of variances to the 150-foot nutrient buffer setback allows some use on a parcel to ensure protection of private property rights in the event of an unforeseen taking of all use on a specific parcel where an applicant cannot meet the setback but can meet the listed criteria for a variance and provide the mitigation required for impacts. Protection of private property rights is a competing concern that must be addressed under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. The Plan Amendments need not address every possible or potential set of facts and circumstances. Additional detail can be provided in implementing LDRs adopted under Section 163.3202, Florida Statutes. Specific implementation and interpretation of policies and LDRs applicable to any particular development proposal will be made by the Town during application review process. Seemingly inconsistent policies can be reconciled by applying the most stringent policy. Seemingly inconsistent policies also could be reconciled by application of a specific exemption, variance, or beneficial use determination. Site-specific application and interpretation of policies and LDRs in development orders, and issues as to their consistency with the goals, objectives, and policies of the Revised Comprehensive Plan, can be addressed under Section 163.3215, Florida Statutes. Small Local Governments IWI contends that the Town was not held to the same data and analysis standards under Section 163.3177(10)(i), Florida Statutes, as larger local governments. Under that statute and Rule 9J-5.002(2), the Department can consider the small size of the Town, as well as other factors, in determining the "detail of data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required " Prior to adoption of the remedial amendments, the Town was unable to utilize GIS mapping. However, for the remedial amendments, GIS mapping was provided with the assistance of the Regional Planning Council. IWI did not prove beyond fair debate that the Town's data and analyses were insufficient under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. State and Regional Plans IWI also contends, for essentially the same reasons addressed previously, that the Plan Amendments are inconsistent with State Comprehensive Plan provisions on water resources, natural systems, and public facilities and Withlacoochee Strategic Regional Policy Plan provisions on natural resources, fisheries, and water quality. A plan is consistent with the State Comprehensive Plan and regional policy plan if, considered as a whole, it is "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." § 163.3177(10)(a), Fla. Stat. Using those definitions, IWI failed to prove beyond fair debate that the Revised Comprehensive Plan, as a whole, is inconsistent with the State Comprehensive Plan or the Withlacoochee Strategic Regional Policy Plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Plan Amendments to be "in compliance." DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 14th day of May, 2004.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER 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 27th day of March, 1990.
