Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
Findings Of Fact Parties City of Cocoa Beach The City of Cocoa Beach (City) is a municipality located in Brevard County. The City has previously submitted a comprehensive plan pursuant to the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act of 1985. The Department of Community Affairs determined the original plan to be in compliance, and the determination has become final. Department of Community Affairs The Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Part II, Florida Statutes. Carole C. Pope Carole C. Pope (Petitioner) resides in the City of Rockledge Brevard County, Florida. She submitted oral or written objections during the review and adoption proceedings concerning the subject plan amendment. Petitioner does not own property or own or operate a business in the City of Cocoa Beach. She and her husband own Lot 11 (less the west 15 feet reserved for road right-of-way), Block 101, of the platted subdivision known as Avon-by-the Sea. The parcel, which Petitioner occupies annually during the summer, is located in unincorporated Brevard County, about 200 feet north of the existing north boundary of the City. Petitioner's property, which contains a duplex dwelling unit, measures about 475 feet east-west by 50 feet north-south. The lot is bound on the north by Wilson Avenue, the west by Azure Lane, the east by the Atlantic Ocean, and the south by Lot 12 of Block 101. Immediately south of Petitioner's lot are four other oceanfront lots measuring about 490 feet east-west by 50 feet north-south and constituting over two acres of the 2.3-acre Subject Parcel. These four lots and one and one-half smaller lots directly across Azure Lane from Petitioner's lot constitute the land that is the subject of the present plan amendment (Subject Parcel). The five and one-half lots forming the Subject Parcel total about 2.3 acres. The Subject Parcel is located in what is generally a residential area. Many of the nearby lots have been developed with single- and multi-family residential units. Just to the south of the Subject Parcel, across Harding Avenue, is an eight-story condominium project known as Discovery Beach. Immediately north of Petitioner's lot is a two-story condominium. One block west of Azure Lane is Ridgewood Avenue, which is classified as a collector. Two blocks, or about one-quarter mile, west of Azure Lane is State Route A1A, which is classified as a major arterial. Annexation of Subject Parcel The Subject Parcel comprises properties not under common ownership. For instance, the owners of the small one and one-half lots west of Azure Lane do not own the four large oceanfront lots immediately south of Petitioner's property. In response to the desires of a prospective purchaser, the owners of the Subject Parcel caused or allowed the commencement of an annexation proceeding with respect to their properties. The northern boundary of the City presently extends to Harding Avenue, which runs along the south boundary of the southernmost of the four oceanfront lots described above. On March 15, 1990, the City Commission adopted on second reading Ordinance No. 928. The ordinance describes the Subject Parcel and states that it is "hereby annexed and incorporated into the City of Cocoa Beach." Somewhat contradictorily, Ordinance No. 928 also states: This Ordinance shall become effective following compliance with Section 163.3187(15)(c) Florida Statutes (1987) and immediately after the changes herein provided for have been duly entered upon [the Future Land Use Map]. The ordinance adds in the following section: "This Ordinance will become effective upon completion of publication requirements for annexation and compliance review by the State Department of Community Affairs." The intent of the City Commission in adopting Ordinance No. 928 was to postpone the effective date of the annexation until DCA's determination of compliance, as to the plan amendment, became final. The ordinance is interpreted consistent with this intent. The language of Ordinance No. 928 is unclear as to whether the annexation takes effect in the event of a final determination of noncompliance. It appears that the intent of the City Commission in adopting Ordinance No. 928 was to condition the annexation upon a favorable final determination. Absent a final determination of compliance, the annexation would never become effective and the Subject Parcel would remain in the unincorporated County. The ordinance is interpreted consistent with this intent. The language of Ordinance No. 928 is unclear as to whether the annexation takes effect regardless of the objections of current owners during the plan amendment review process. As to this issue, the intent of the City Commission in adopting Ordinance No. 928 is not evident. It appears that no one anticipated this possibility. In fact, the owners of the one and one-half lots west of Azure Lane no longer desire annexation into the City. The record does not allow a determination whether annexation may proceed over the owners' objection. Plan Amendment and Additional Data and Analysis Ordinance No. 928 makes only one amendment to the operative provisions of the City's plan. The ordinance designates the Subject Parcel as High Density Multi-Family on the Future Land Use Map. The City's High Density Multi-Family designation allows a residential density of 15 dwelling units per gross acre, a transient (hotel/motel) density of 40 rooms per gross acre, and limited professional and commercial uses. The City transmitted to DCA two sets of data and analysis in support of the designation proposed for the Subject Parcel. The first set accompanied the plan amendment, and the second set consisted of responses to DCA's Objections, Recommendations, and Comments on the proposed plan amendment (collectively, Data and Analysis). The Data and Analysis explain that the City's proposed designation would yield 35 dwelling units or 92 hotel/motel rooms on the Subject Parcel. However, the Data and Analysis note that the "applicant" (i.e., the prospective purchaser) will agree to allow the City to restrict the hotel/motel density to 30 rooms per gross acre, which generates 69 hotel/motel rooms. 5/ The two sets of Data and Analysis are inconsistent as to the critical question of the present designation and permitted land uses under the County's plan. The first set erroneously states that the County's plan designates the Subject Parcel as "Mixed Use" and allows 30 hotel/motel rooms per gross acre for a total of 69 rooms. The second set correctly states that the County's plan designates the Subject Parcel as "High Density Residential" and omits mention of any hotel/motel uses. Since April 9, 1990, if not before, the County's plan has designated the Subject Parcel as "Residential." 6/ Addressing the impact of the proposed designation upon public facilities, the Data and Analysis calculate an increase in daily vehicular trips from 455 to 703, if the 69 residential units under the County's plan were changed to 69 hotel/motel rooms under the City's plan. However, the additional trips would not, according to the Data and Analysis, reduce the level of service standards of affected roads below the adopted level of service standards for those roads. A similar conclusion follows if the City allowed 92 hotel/motel rooms to be built on the Subject Property. The Data and Analysis disclose ample capacity in central sewer and water facilities and disclose no problems with respect to other facilities and services, regardless whether the City allowed 69 or 92 hotel/motel rooms on the Subject Parcel. According to the Data and Analysis, the Subject Parcel is, on average, 9.5 feet above mean sea level, although it is not in the 100-year floodplain. The soil series found on the site has only very slight limitations for dwellings. The dune area, which has suffered little erosion, is well vegetated with dune grass, sea oats, sea grapes, and railroad vines. Otherwise, the Data and Analysis report that the site is clear, except for a building located seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources. 7/ The Data and Analysis state that the Subject Parcel contains no known habitat for endangered or threatened species or species of special concern, although the Atlantic Loggerhead Turtle and Atlantic Green Turtle use the coastline for nesting. However, the Data and Analysis mention that the City's lighting ordinance helps eliminate a lighting hazard to the fledgling sea turtles from May 1 through October 31. With respect to coastal hazards, the Data and Analysis state that the landward boundary of the Coastal High Hazard Area, through the Subject Parcel, is about 365 feet west of the mean high water line. The Data and Analysis represent that the City permits no building in this area and allows no disturbance seaward of the Coastal Construction Control Line in the absence of a hermit from the Florida Department of Natural Resources. Noting that the each of the two plans allows a total population of 152 persons on the Subject Parcel, the Data and Analysis reason that the proposed amendment will not impact actual hurricane evacuation times or designated maximum hurricane evacuation times, which in each plan approximate 12 hours, exclusive of behavioral response times. It is evident from the Data and Analysis that the construction of even 92 hotel/motel rooms on the Subject Parcel would not measurably affect hurricane evacuation times. City's Plan: Data and Analysis As described in Paragraphs 15-22 above, the City provided DCA new Data and Analysis in support of the subject plan. However, the plan already contained data and analysis that bear on the proposed designation of the Subject Parcel. The data and analysis accompanying the original plan state that the City is located on an "intensely developed" barrier island. Of the 1772 acres within the City, exclusive of road right-of-way, finger canals and the Thousand Islands located in the Banana River, only 180 acres of vacant land remain. Based on land use designations, the supply of land available for multi-family development may be exhausted by 1998. The data and analysis note that the sandy beaches and dunes provide essential nesting areas for a variety of endangered or threatened sea turtles. In the Summary of Ecological Communities, the data and analysis list three endangered or threatened wildlife species and two vegetative species as occupying the beach and dune habitat, which constitutes the part of the Subject Parcel seaward of the Coastal Construction Control Line. The data and analysis list no such species occupying the barrier island interior habitat, which constitutes the part of the Subject Parcel landward of the Coastal Construction Control Line. The data and analysis report that a foredune runs the length of Cocoa Beach. However, most of the extant dunes have reportedly been adversely impacted by roads, fences, structures, and parking lots. The data and analysis acknowledge that the entire City is subject to coastal flooding and included in the Hurricane Vulnerability Zone, as well as the "coastal zone." It is less clear what extent of the City is located in the Coastal High Hazard Area. Future Land Use Element (FLUE) Policy 6.3 and Coastal Management/Conservation Element (Conservation) Policy 14.1, which are identical, state that the Coastal High Hazard Area shall be the area located within the "velocity zone or seaward of the Coastal Construction Control Line ...." No map in the plan depicts the location of the Coastal High Hazard Area, and the locations of the velocity zone and Coastal Construction Control Line are not depicted either. The data and analysis state that little infrastructure is located in the Coastal High Hazard Area. The primary strategies of the City to address coastal hazards are to enforce the building elevations shown on Flood Insurance Rate Maps and rely on the Florida Department of Natural Resources to enforce the Coastal Construction Control Line. The data and analysis concede that the City can do little to reduce evacuation times except to exhort the State of Florida to raise the elevation of State Routes A1A and 520, which are critical hurricane evacuation routes and are subject to early flooding. City's Plan: Objectives and Policies Several plan provisions coordinate future land uses with available facilities and services. For instance, FLUE Policy 4.1 precludes the issuance of a development order until the applicable levels of service are met. The future land use designations themselves are also coordinated with available facilities and services. The data and analysis disclose no general deficiencies in relevant facilities and services when evaluated against the designations contained in the future land use maps. As to the coordination of future land uses with topography and soil conditions, FLUE Objective 3 limits development on Tidal Swamp soils to one unit per five acres; FLUE Objective 9 prohibits construction activity from damaging the dunes; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element (Public Facilities) Objective 4 requires the City to complete a study by the end of 1992 to identify its most pressing drainage problems and initiate solutions; Public Facilities Policy 5.1 imposes a drainage level of service standard with respect to stormwater runoff; FLUE and Conservation Objectives 1 require the use of flood control and shoreline erosion control techniques to improve estuarine quality; Conservation Objectives 4 and 5 and the ensuing policy clusters provide protection to the dunes; and Conservation Objective 6 and the ensuing policy cluster provide protection to the beaches. Several plan provisions ensure the protection of natural resources. The plan states that the City contains no waterwells, cones of influences, or minerals. Plan provisions protecting beaches and soils have been discussed in connection with the coordination of future land uses with soils and topography. Plan provisions concerning wetlands are irrelevant to the present case because the Subject Parcel contains no wetlands. Although drainage from the Subject Parcel may reach the estuarine waters of the Indian River Lagoon, the connection is too remote to interpret the amended petition as raising the issue of protection of rivers and bays. As to floodplains, a Future Land Use Map shows the entire oceanside of the City to be outside of the 100-year floodplain. Conservation Objective 15 is to achieve an evacuation time of less than 12 hours for a category three or stronger hurricane. FLUE Policy 4.1g conditions the issuance of a development order on a determination that a project will not increase the hurricane evacuation time to over 12 hours. FLUE Policies 1.1-1.3 and 6.1-6.4 address implementation activities for the regulation of land use categories. With respect to policies addressing implementation activities for the regulation of floodprone areas, FLUE Objective requires construction in the floodplain or the Coastal High Hazard Area to satisfy the building elevations identified in the Flood Insurance Rate Maps. Several plan provisions address implementation activities for the provision of drainage and stormwater management. FLUE Objectives 2 and 3 deal with drainage and stormwater management, and FLUE Policies 2.1 and 3.1 establish implementation activities reasonably calculated to achieve the objectives. FLUE Policy 4.1a conditions the issuance of a development order on a determination that a project will retain the first inch of runoff (for a project less than 100 acres) or the first half-inch of runoff (for a larger project), apparently in a 10-year/24-hour storm event. The policy also limits, for such a storm event, post-development runoff to predevelopment runoff. Public Facilities Policy 4.1 provides that the City will promptly fund the most critical drainage improvements identified in a drainage study to completed by the end of 1992. FLUE Policy 7.1 requires the City to require the preservation of environmentally sensitive coastal and wetland areas or that damage be mitigated. Several objectives protect beaches and dunes. FLUE Objective 8, which is identical to Conservation Objective 4, provides that vehicular and pedestrian traffic shall not damage the dune system. FLUE Objective 9 provides that construction activities shall not damage the dunes. Conservation Objective 5 is identical, but adds that altered dunes shall be restored. Conservation Objective 6 states that the City shall promote beach nourishment projects. Policy 3.4 requires the City to set aside at least two islands in the Thousand Islands to be used exclusively as rookeries and wildlife habitat, and Conservation Objective 7, as well as the ensuing policy cluster, protect and increase native vegetation and wildlife habitat. Conservation Objective 10 and its policy cluster protect soils and groundwater from hazardous waste contamination. Conservation Objective 14 is to "direct population and development landward of the coastal high-hazard area." The two policies under Objective 14 provide for the relocation of public infrastructure in the Coastal High Hazard Area (unless related to certain excepted uses) and for the rebuilding of certain structures in the Coastal High Hazard Area in accordance with all current land development regulations. FLUE Policy 2.1b conditions the issuance of a development order within the Coastal High Hazard Area upon the determination that the Florida Department of Natural Resources has approved the construction and the proposed project complies with any "reasonable" conditions imposed by the Florida Department of Natural Resources. Conservation Policy 13.2 states: "[The City] will rely upon the Florida Department of Natural Resources to enforce the building limitations seaward of the Coastal Construction Control Line." Many plan provisions identifying techniques for limiting impacts of development on water quality, wildlife habitat, living marine resources, and beach and dune systems have been discussed in the preceding paragraphs. Additional provisions include Public Facilities Policy 1.1, which is to expand the effluent reuse program until at least half the effluent is reused by 1995; Conservation Policy 3.1, which protects sea turtles and their nests by enforcing the light ordinance and monitoring; Conservation Policy 3.2, which protects manatee habitat; Conservation Policy 3.5, which requires the preparation of a management plan for the minimization of adverse effects of development on endangered or threatened species found on the site; Conservation Policy 7.4, which prohibits the use and, in the event of redevelopment or construction, requires the removal of noxious, exotic species such as Brazilian Pepper; and Conservation Objective 9, which is to reduce discharge from the City sewage treatment plant into the Banana River Lagoon by 50%. Plan provisions identifying techniques for mitigating general hazards, including the regulation of floodplains, beaches and dunes, stormwater management, and land use to reduce the exposure of human life and property to natural hazards, have been discussed in the preceding paragraphs. As to sanitary sewer, Public Facilities Objective 1 assures that the City residents will have access to sanitary sewer facilities and the City will protect the Banana River by expanding the effluent reuse program. Public Facilities Policy conditions the issuance of a development order on a determination of sanitary sewer capacity of 100 gallons per day per person. Plan provisions conserving and protecting soils, fisheries, wildlife, wildlife habitat, native vegetation, endangered or threatened species, and protection from coastal natural hazards have been discussed in the preceding paragraphs. In addition, FLUE Policy 9.2 states that the City will "require development in the dune area to use naturally vegetated dune to meet open space requirements, and to preserve the full range of existing interconnected dune vegetational zones." County's Plan: Objectives and Policies Future Land Use Element Policy 1.1C. of the County's plan limits the land designated as Residential to a density of 30 dwelling units per acre. It is unclear whether the County's plan permits the construction of hotel/motel rooms on the Subject Parcel. 8/ Even if so, the County's plan limits density to 15 rooms per acre. 9/ Future Land Use Element Policy 1.8 precludes any increase in densities for the Coastal High Hazard Area and High Risk Vulnerability Zones until the County completes Strategic Area Plans for the areas in question. Coastal Management Element Policy 4.1 contemplates that the County will permit construction seaward of its Coastal Construction Control Line, which is typically the same as the line established by the Florida Department of Natural Resources. Conditions imposed on construction in the area seaward of the Coastal Construction Control Line include the preservation of half of the existing vegetation, limitation of impervious surface to 45%, and construction to standards designed to withstand wind and water forces from the 100-year storm. Relevant Provisions of the Regional Plan Policy 40.6 of the East Central Florida Comprehensive Regional Policy Plan, June, 1987 (Regional Plan) provides: Structural development along sand beaches fronting the Atlantic Ocean shall not adversely affect the coastal beach and dune system. The following criteria shall apply in the implementation of this policy: Beach setbacks shall be established to protect and preserve the coastal beach and dune systems fronting the Atlantic Ocean. Structures shall be prohibited within the established setback except where overriding public interest is apparent, or the structures are necessary for reasonable access and are elevated above the existing dune vegetation. MEASURE: The number of ordinances which establish beach setbacks. Regional Plan Policy 64.12 provides: Land development in the coastal zone shall be manned [sic] so that public facility and service needs required to maintain existing hurricane evacuation times do not exceed the ability of local government to provide them. MEASURE: The clearance time required to evacuate the population-at-risk within the region's coastal zone. Relevant Provisions of the State Comprehensive Plan Section 187.201(9)(a) is a goal of the state comprehensive plan. The goal is: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the stage's population additional beaches and marine environment, consistent with sound environmental planning. Section 187.201(9)(b) contains the following policies: 4. Protect coastal resources, marine resources, and dune systems from the adverse effects of development. 9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote restoration of coastal dune systems that are damaged. Section 187.201(10)(b)3. is to "[p]rohibit the destruction of endangered species and protect their habitats. Section 187.201(16)(b)1. is a policy to: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new populations and commerce. Ultimate Findings of Fact Jurisdiction As to Issue 1, 10/ the City has exercised planning authority over land that is neither within its jurisdiction nor the subject of a joint agreement with Brevard County. All of the conditions precedent to the annexation have not been met and might not even be satisfied by a final determination of compliance in this case. It is unclear whether annexation will necessarily proceed over the objections of the present owners of part of the Subject Parcel, especially when various unsatisfied contingencies may prevent the prospective purchaser from acquiring title to the land. Consistency of Data and Analysis with Criteria As to Issues 2-6, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues. Consistency of Objectives and Policies with Criteria As to Issues 7-24, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues. Internal Consistency As to Issue 25, it is fairly debatable that the designation of the Subject Parcel contained in the present plan amendment is consistent with the provisions of FLUE Policy 7.1, FLUE Objective 9, and FLUE Policy 9.2. These plan provisions require the protection of environmentally sensitive coastal areas, including the dunes. The designation of the Subject Parcel does not, to the exclusion of fair debate, conflict with these three provisions. To the exclusion of fair debate, the designation of the Subject Parcel as High Density Multi-Family is not consistent with Conservation Objective 14, which is to direct population and development landward of the Coastal High Hazard Area. A finding whether a plan amendment is consistent with a provision to direct population and development landward of the Coastal High Hazard Area may be facilitated by comparing densities allowed under the plan amendment with densities in effect prior to the amendment. With respect to the part of the Subject Parcel within the Coastal High Hazard Area, the County's plan imposes more demanding restrictions upon development than those that would be imposed under the City's plan. In both plans, the local governments cede to the Florida Department of Natural Resources the threshold decision whether to allow construction seaward of the Coastal Construction Control Line, which generally operates as the landward boundary of the Coastal High Hazard Area. However, the City's plan requires compliance only with "reasonable" conditions imposed by the Florida Department of Natural Resources in granting the permit. In contrast, the County's plan requires that construction seaward of the Coastal Construction Control Line (or in the Coastal High Hazard Area) meet certain minimum requirements. 11/ It is impossible to assume that all development of the Subject Parcel will necessarily take place outside the Coastal High Hazard Area. Neither plan itself prohibits development in the Coastal High Hazard Area, which encompasses nearly 75% of the four oceanfront lots forming most of the Subject Parcel. Thus, the additional protection in the County's plan for the Coastal High Hazard Area contributes to a finding of internal inconsistency. The County's plan permits a density of 30 dwelling units per acre and, most likely, no more than 15 hotel/motel rooms per acre. The City's plan permits the same density for dwelling units, but 45 hotel/motel rooms per acre. 12/ Thus, even if the County's plan permitted 30 boardinghouse or bed and breakfast rooms per acre, the effect of the plan amendment is to increase the density on the Subject Parcel by at least 15 rooms per acre. As noted above, because neither plan itself prohibits development in the Coastal High Hazard Area, which consumes much of the Subject Parcel, it is impossible to assume that all development of the Subject Parcel necessarily will take place outside the Coastal High Hazard Area. Thus, the lower densities permitted in the County's plan for development in the Coastal High Hazard Area contributes to a finding of internal inconsistency. Consistency with Regional Plan As to Issue 26, it is fairly debatable that the plan, as amended, is consistent with Policies 40.6 and 64.12 of the Regional Plan. Regardless of the effectiveness of any coastal setback provisions in the City's plan, other provisions specifically protect the coastal beach and dune system addressed by Policy 40.6. Consistency with State Comprehensive Plan As to Issue 27, it is fairly debatable that the plan, as amended, is consistent with Section 187.201(9)(a) and (b), (10)(b)3., and (16)(b)1. Consistency with Section 187.201(9)(a) is based upon consideration of the state comprehensive plan as a whole.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for lack of planning jurisdiction and internal inconsistency between the plan amendment and Conservation Objective 14. ENTERED this 4th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Amcor Investment Corporation is the current owner of a 573 acre parcel of land located in northwest Seminole County on the east side of the Wekiva River and south of Markham Road. The property is zoned A-I (agricultural). In 1984, Richmond American Homes, petitioner's predecessor in title, sought to rezone this property from A-I to PUD (Planned Unit Development) for a mixed use development that would contain approximately 1850 single family dwelling units, a commercial site and an 18-hole golf course. The Seminole County Planning and Zoning Commission recommended denial of this rezoning request by a unanimous vote. In November of 1984, the Board of County Commissioners also unanimously denied the rezoning request, but did so without prejudice to the developer to institute a Development of Regional Impact study. (Stipulated Exhibits VIIe and VIIf). The initial Plantation application for Development Approval was submitted by Richmond American Homes to the East Central Florida Regional Planning Council (ECFRPC) on or about February 28, 1985. (Stipulated Exhibits IIIa and VIIIc). This application proposed a rezoning of the property from A-I to PUD, and the project consisted of a phased 'mixed use development containing 1600 residential units, an 8.3 acre neighborhood commercial site, a 15.6 acre school site, a 3.5 acre day care center site, approximately 8.5 acres to be utilized for a sewage treatment plant and a water plant, approximately 188 acres of parks, open spaces, lakes and preservation areas, and approximately 29 acres for roads and rights-of-way. (Stipulated Exhibits IIIa and VIIIc). With full knowledge of the preceding rezoning denial and the ongoing DRI proceeding, petitioner Amcor purchased the subject 573 acres and continued to pursue approval for the Plantation project. (Seminole County Exhibits B through F). The Plantation site is in the extreme northwest portion of Seminole County and is abutted on the west by the Wekiva River. This river is designated as an Outstanding Florida Water, a Florida Aquatic Preserve, a Wild and Scenic River and a State Canoe Trail. The only existing road abutting the Plantation site is Markham Road, to the north. The properties adjacent to the site are generally characterized as "rural vacant land." (TR 4/9/87 at p. 128). Utilizing existing roads, Interstate Highway 4 is approximately four to five miles east of the Plantation site. The 1600 residential units described in the Application for Development Approval are identified as 12 percent single family manor, 73 percent single family patio and 15 percent single family townhouse villa. At the final public hearing before the Seminole County Board of County Commissioners, and at the hearing before the undersigned, the petitioner offered evidence of a proposal with 1240 residential units. Also, for the first time, petitioner offered evidence at the hearing before the undersigned of a second scaled-down proposal with only 1088 residential units. Each of the three developmental scenarios contain a similar number of acres devoted to the commercial site, school site, sewage treatment plant and water plant sites, day care center site and other open spaces and rights-of-way. (Petitioner's Exhibits 1, 2 and 3). There is some question as to the character of the land itself. It is undisputed that 93.67 acres of the Plantation site are wetlands. Approximately 7.4 acres are forested with a zeric oak community. While petitioner has assigned an upland classification to 379.8 acres of the site, some of this land is dominated by pond pine mixed with slash pine. (Stipulated Exhibit IIIa, p. 12-11; Transcript, 4/30/87 at p.157). Pond pine is a classification for wetlands. (Transcript, 4/30/87, pp. 94-100). 7 There are currently no central sewer services available to the Plantation site. While Seminole County is planning to construct a regional wastewater treatment plant north of the Plantation site, it has not yet begun such construction nor has it applied for the requisite permits to do so. Also, County planners have anticipated that the Plantation site, would receive a maximum of 573 units of single family residence-sewer capacity based upon the assumption of one dwelling unit per acre development. (Transcript 4/9/87 at p. 55). County water services currently do not exist for the Plantation site. Petitioner proposes the use of on-site water and sewage treatment plant facilities, as well as its own water supply source. Detailed technical plans for the design of these facilities, especially for the 1240 and 1088 residential unit plans, have not been submitted and would be the subject of future permitting proceedings. Petitioner has obtained a consumptive use permit from the St. Johns River Water Management District for the withdrawal of on-site potable water in an amount which would serve a portion of its projected need. The plans for sewage treatment include a secondary treatment package plant, percolation ponds and several spray fields in high elevation locations. The closest disposal site would be located one-half mile from the Wekiva River if 1600 residential units are constructed and even further away if 1240 or 1088 units are constructed. By referring to published averages regarding levels of treatment, petitioner presented evidence that a central sewage treatment system would have less adverse impacts upon the water quality of the Wekiva River than the placement of some 350 to 500 individual septic tanks on the Plantation site. However, any meaningful comparison between the two methods of treatment would be dependent upon site-specific conditions (such as ground elevation) as well as the level and degree of maintenance of the facilities for the two forms of treatment. The sewer facility system proposed by the petitioner would require continual on-site operators. It would not be economically feasible to construct and operate a package water and sewer plant if the property were developed at a density of one dwelling unit per acre. The petitioner has indicated its desire and agreement to tie into the regional water and/or sewer facilities when and if they become available. Petitioner also intends to dedicate to Seminole County the proposed on-site water and sewer plants. However, County officials do not desire to accept or operate such plants (Transcript, 4/9/87, pp. 58-60). The proposed stormwater management system for the Plantation includes several retention/detention ponds, with overflow travelling hundreds of yards prior to entering the Wekiva River. Buffers are planned along the wetland areas and the Wekiva River, and it is anticipated that the vegetation in those areas will take up nutrients and filter the water prior to any discharge into the River. Any overflow would sheet flow over berms near the River and there would be no point source discharge to the Wekiva River. The amount of stormwater runoff would, of course, be dependent upon the amount of impervious surface created by the development, as well as the manner in which the berms are maintained. Petitioner has agreed to donate 15.6 acres toward a 50-acre high school site, with the remaining acreage coming from property to the south of the Plantation. At least some of the 15.6 acres consist of swamp soils, and there was no evidence that the abutting landowners had also agreed to dedicate acreage to be, combined with acreage from the Plantation site. Petitioner has agreed to contribute to the School Board Commitment Fund if the County finds the 15.6 acres unsuitable as a school site. (Stipulated Exhibit VI, p. 4-5). The proposed project will have urban levels of fire and police protection and service from current county facilities. The petitioner has further agreed to contribute to the Fire Impact Fund. (Stipulated Exhibit VI, at p. 4-5). The petitioner's transportation proposal consists of a multi-phase program which includes a traffic monitoring analysis at the completion of each phase. Many of the roadways associated with the Plantation site are currently substandard facilities with regard to their width and sight distances. During Phase I of the proposed development, petitioner plans to make minor traffic and roadway improvements, such as the addition of turn lanes, signalization and the like. Major capacity and expansion improvements are contemplated for Phases II and III of the project. The extent and nature of such improvements will be based upon the results of traffic monitoring and conditions existing at the time of Phase I completion. While a westward extension of Lake Mary Boulevard was initially contemplated, it was not clear from the petitioner's evidence that such an extension would be necessary if the number of residential units is reduced from 1600 to 1240 or 1088. Specific plans for the manner of, or costs associated with, the acquisition of rights- of-way for the major roadway improvements had not yet been determined at the time of the hearing. During the hearing, the County and the intervenors presented evidence of certain defects with regard to the petitioner's traffic impact assumptions and proposals. These included the number of vehicle trips assigned for townhouses, the actual location of schools in the area, the internal capture rate, the potential future nature of the surrounding property if the Plantation site is developed as proposed and speed flow relationships on existing roads. (Transcript, 4/8/87, pp. 167-171). If adequate monitoring and analysis at each stage or phase of development were made a condition for approval, so that the actual traffic generated by the project could be evaluated, these "defects" could be cured. Petitioner's transportation plan relies upon several potential roadway improvements which are either still in the planning stage and currently unfunded or are so remotely located from the Plantation site as to be anything more than marginally beneficial. Seminole County does engage in a transportation planning process to project future need for roadways and Interstate 4 interchange improvements. In doing so, it uses land use data from the Seminole County Comprehensive Plan. In planning for the transportation needs of this area of the County (Planning Area I), there has been no assumption that a development with the density and intensity proposed by the petitioner would be approved. (Transcript, 4/8/87, at p. 193). Indeed, a policy in the Comprehensive Plan as to this area is to discourage urban intensity development that would impact the transportation network in the area of Markham Woods Road, Lake Mary Boulevard and Interstate 4. (Stipulated Exhibit IIa at p. 117). Seminole County was one of the early advocates of comprehensive planning in Florida. After numerous workshops, reviews and public hearings, the Seminole County Comprehensive Plan (the Plan) was adopted in 1977. It was developed to accommodate a population of 434,000 over a 20-year time frame. The County's current population is approximately 241,000. (Transcript, 4/9/87, at pp. 129-130). The Plan is currently pending review and revision in accordance with the Growth Management Act. (Transcript, 4/9/87, at p. 141). The Plan consists of two volumes -- the Short Range Development Plan (Stipulated Exhibit IIa) and the Development Framework (Stipulated Exhibit IIb). The Development Framework was developed first and established general policies. The Short Range Development Plan was later developed and established specific policies for the ten planning areas denoted in the Plan. (Transcript, 4/9/87, at pp. 98 and 99). The Plan assigns a classification to each of the ten designated planning areas. The Plantation site is located in Planning Area I, which is designated as the Markham/Paola Area and classified as a General Rural Area. The Plan distinguishes between urban, and rural land uses, noting that "persons choosing a rural life style should not expect to receive urban services, thus, urban zoning and development." (Stipulated Exhibit IIb, pp. B-25 and B-26). The planning areas classified as urban contain detailed and more specific land use and facility proposals. Since the rural areas do not require urban land use, urban zoning or urban services, the Plan's proposals with respect to rural areas are more general, with a strong policy orientation. (Stipulated Exhibit IIa, at p. 43). Thus, while the Plan contains land use maps for urban areas, rural planning areas are intentionally unmapped. (Transcript, 4/9/87, at pp. 127-128). In defining the various land use categories, the Plan defines "General Rural" as follows: This land use is established for rural uses and attendant non-residential uses, residences on five (5) acre sites; recreational or other low intensity uses. Development is encouraged which does not require unincorporated urban facilities. This land use encourages one (I) unit per five (5) acres while permitting one (I) unit per acre. (Stipulated Exhibit IIa, p. 64). Since there is no map of Planning Area 1, the County applies the policies contained in the Plan to decisions regarding development in that area. Included among the general and more specific policies for General Rural Areas and Planning Area 1 are the following: This use is established primarily for rural residential uses and attendant non-residential uses, residences on five-acre site's, recreational or other low intensity institutional uses. (Stipulated Exhibit IIb, p. B-40). To encourage rural development which does not require unincorporated urban facilities, i.e. paved roads, central sewer and water. (Stipulated Exhibit IIb, p. B-40). To adopt a true rural residential use category encouraging residences on five-acre parcels with low intensity institutional uses; discouraging subdivisions; and permitting dwelling units on minimum one acre parcels. (Stipulated Exhibit IIb, p. B-40). To encourage the present land use trends established in the Planning Area and in particular, the Rural Community of Paola. (Stipulated Exhibit IIa, p. 113). To discourage strip commercial development among all roads in the Planning Area. (Stipulated Exhibit IIa, p. 114). Absent specific policies providing for higher intensity development (such as interchanges and the Interstate 4 corridor), the only provision for a large scale urban development in a General Rural area is for a New Community development (as authorized in State law) intended for lower income families. (Transcript, 4/9/87, at pp. 121-125; Stipulated Exhibit IIb, p. B-41). The Plantation is not a low income, Federally subsidized housing development. When adopting the Plan, the County rejected urban sprawl patterns (urban movements into non-contiguous remote areas) in favor of a continuation of existing densities and intensified uses along the Interstate 4 corridors. (Transcript, 4/9/87 at pp. 118-120; Stipulated Exhibit IIb, pp. B-30 - B-32). As noted above, the Plan's transportation policies for Planning Area I discourages high intensity development which would impact the transportation network in the area of Markham Woods Road, Lake Mary Boulevard and Interstate 4. (Stipulated Exhibit IIa, p. 117). Regardless of whether the Plantation project is constructed with 1600 dwelling units, 1240 dwelling units or 1088 dwelling units, it would be an urban, as opposed to a rural, development. (Transcript, 4/6/87 at p. 127 and 4/9/87 at p. 120). Such an urban density development could also serve as precedent for similarly situated properties in the area. With a few exceptions noted below, the development history, patterns and trends, as well as the community character, of Planning Area 1 is rural in nature. (Stipulated Exhibit IIa, pp. 112; Transcript, 4/7/87, Public Session, at pp. 15-35). There are two planned unit developments located within Planning Area The Heathrow development was approved in 1972, some five years prior to adoption of the Comprehensive Plan. It is located adjacent to Interstate 4. At the time of the Plan adoption in 1977, the Heathrow development was not deemed to be either a land use conflict or a non-conforming zoning. The Kingwood development, approved in 1986, has its primary access point on State Road 46 and residents can access Interstate 4 by travelling about 1/2 to 3/4 of a mile. When the Comprehensive Plan was adopted, the Kingwood property was zoned for travel trailers and for single family residences. Kingwood is located in an urban service area, near an industrial park, hotels, other commercial facilities and a County fire station. (Transcript, 4/9/87 at p. 56). Both the Seminole County Planning and Zoning Commission and the Board of County Commissioners unanimously approved the Kingwood development. (Stipulated Exhibit IX). Lake Sylvan Park is located in Planning Area I in the vicinity of the Plantation site. This park has no tennis courts, basketball courts or swimming pools. It does have a large open field used for soccer which the County rents to youth organizations on an occasional basis. Lake Sylvan Park is currently a passive recreation park, and the County has no present plans to change this theme. (Transcript, 4/8/87 at pp. 159-162) Regional benefits accruing from the Plantation DRI proposal include interim employment during construction of the development and the addition of revenue to the tax rolls. (Transcript, 4/9/87, at p. 18). These same benefits would accrue from any new PUD located anywhere within the region. No evidence of statewide benefits was presented, though there is State, regional and local interest in protecting the Wekiva River. The East Central Florida Regional Planning Council (ECFRPC) reviewed the Plantation proposal relative to the impacts it may have on regionally significant resources or facilities. The proposal it reviewed contained 1600 dwelling units. By a vote of 9 to 5, the ECFRPC recommended approval of the Plantation proposal with numerous conditions. The conditions imposed included a redesign of the stormwater management system, a reevaluation of the lake depths and establishment and operation of a monitoring station network to insure protection of water quality of the Wekiva River, a two-stage phasing of the development for traffic and road improvements, and plans for the inclusion of boardwalks to minimize disturbances to existing vegetation and to preserve the visual character of the Wekiva River. (Stipulated Exhibit Va). The petitioner has agreed to accept the conditions recommended by the ECFRPC. In both its deliberations and in its cover letter forwarding its report and recommendations to Seminole County, the ECFRPC expressed its concerns regarding the consistency of the Plantation proposal with the Seminole County Comprehensive Plan. It was concluded that the consistency issue is one "of local concern, with the rezoning/local government review process being the appropriate forum to address this concern." (Stipulated Exhibit Va, p. 1). The Executive Director of the ECFRPC further noted that This recommendation should not be interpreted to mean that the Regional Planning Council supports or opposes the rezoning of the subject property by the Seminole County Board of Commissioners. This action for conditional approval represents the results of the Committee's review of the project as presented in the Application for Development Approval and stipulates the minimum acceptable criteria by which this project should be developed, should local rezoning approvals be granted. (Stipulated Exhibit Va, p. 2). Public hearings were held by both the Seminole County Planning and Zoning Commission and the Board of County Commissioners regarding the Plantation Application for Development Approval. The Planning and Zoning Commission recommended to the County Commission that the DRI application be denied since the proposed development was not consistent with the Seminole County Comprehensive Plan. (Stipulated Exhibits VIIc, VIId and XIV). The petitioner never appropriately offered an amendment to the Plan, and the County did not feel it appropriate to amend the Plan. The Board of County Commissioners voted to deny the application for Development Approval as well as the petitioner's request for rezoning of the property, concluding that the proposal was inconsistent with the Comprehensive Plan. (Stipulated Exhibits VIIa and VIIb). The various County-level staff reports submitted in conjunction with the Plantation project will not be recited herein. Their entire contents can be found in Stipulated Exhibits VI, VII, VIII, and XIV and the County's Exhibit H. Briefly summarizing, the staff concerns included the proposed density being in conflict with the Comprehensive Plan policies and development trends applicable in Planning Area I; the location of the commercial site being in conflict with the Plan policies regarding strip highway commercial; the size and location of the proposed school site; the method of sewage disposal; the fact that Lake Mary Boulevard is not a programmed roadway scheduled for major improvements by the County and the developer had not demonstrated that rights-of-way had been purchased and had not demonstrated the ability to construct additional roadways without long-term public commitments; and that any rezoning with the densities proposed would first require an amendment to the Plan. Although permitted the opportunity to do so, the developer offered no evidence that refusal to permit a development with the densities proposed would constitute an unlawful taking of property. Accordingly, Seminole County's Motion for Summary Recommended Order on this issue was granted. (Transcript, 4/8/87, at p. 149). Members of the general public who commented on the proposed Plantation development were concerned with the project's negative impact on the rural character of the community. More specifically, their concerns included the potential adverse effects of the Plantation upon traffic, noise and air pollution, population increases, wildlife, the protection and preservation of the Wekiva River, the precedent set for future high intensity development, and property values. Many members of the general public also expressed concerns regarding the integrity of the local government decision-making process and responsible growth management. There was no opposition to the standing of any of the intervenors to participate as intervening parties in this proceeding.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that The Florida Land and Water Adjudicatory Commission DENY the application for development approval for the Plantation Development of Regional Impact because the proposal submitted and revised is inconsistent with the Seminole County Comprehensive Plan. Respectfully submitted and entered this 22nd day of October, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on this 22nd day of October, 1987.
Findings Of Fact During 1974, Beker Phosphate Corporation applied to the Board of County Commissioners of Manatee County for a development order approving proposed phosphate mine operations. Beker is seeking to engage in phosphate mining on over ten thousand acres of land located in Manatee County in the watersheds of the Manatee and Myakka Rivers. The TBRPC is the regional planning agency which reviews development of regional impact applications in Manatee County. On December 9, 1974, the TBRPC recommended that the proposed mine be approved with modifications. On January 28, 1975, the Board of County Commissioners of Manatee County issued a DRI Development Order. The order approved the application submitted by Beker subject to thirteen specified conditions which are set out in the order. A copy of this development order was received in evidence at the final hearing as a Appellant's Exhibit 3. Neither the Division of State Planning nor any appropriate regional planning agency appealed the development order to the Florida Land and Water Adjudicatory Commission. Sarasota County did attempt to appeal the order; however, on June 17, 1975, the Land and Water Adjudicatory Commission accepted the Hearing Officer's recommended order and dismissed the appeal. This action was affirmed by the First District Court of Appeal. Sarasota County v. Beker Phosphate Corporation, 322 So.2d 655 (1975). In its application for development order, Beker had proposed to construct two secondary dams prior to commencing mining activities. One of these was to be constructed on the East fork of the Manatee River, and one on Wingate Creek. The dams were located down stream from initial waste clay settling areas. One of the purposes of the secondary dams was to serve as a back up system in the event that there was a break in the primary dam. In approving the application, the Board of County Commissioners of Manatee County required that the secondary dams be constructed prior to the commencement of mining activities. The primary motivation of Manatee County in requiring construction of the secondary dams was not protection from leaks in the primary dam system, but rather a desire to plan for the County's long term water needs. The Board anticipates that a reservoir would eventually be constructed behind the secondary dams, and that these reservoirs would serve the long-term water needs of the people of Manatee County. Since the secondary dams were to be constructed in wetland areas, Beker needed to obtain a permit from the Department of Environmental Regulation in order to construct the dams. An application was submitted. On November 29, 1976, the Department of Environmental Regulation issued a Notice of Intent to Deny the application. Beker subsequently petitioned for a hearing in accordance with the provisions of Section 120.57(1), Florida Statutes (1976 Supp). The request was forwarded to the Division of Administrative Hearings. A final hearing was scheduled, but due to subsequent action taken by the Board of County Commissioners of Manatee County, and due to this proceeding, the hearing was postponed and the case has been held in abeyance since April 5, 1977. No formal hearing has been conducted with respect to the application to construct the secondary dams, and no final order has been issued by the Department of Environmental Regulation. While the Department of Environmental Regulation matter was pending before the Division of Administrative Hearings Mr. Louis Driggers, the Chairman of the Board of County Commissioners of Manatee County, became concerned that the proceeding could have an adverse effect upon the county's long-range desire to construct a reservoir which would serve water supply needs. Mr. Driggers had a conference with Secretary Landers of the Department of Environmental Regulation, and learned that the agency's initial objections to the secondary dams were that the dams themselves would cause destruction of wetlands areas, and that since the primary dams were being constructed in accordance with Department of Environmental Regulation Rules and Regulations, there would be no need for the secondary dams. This opinion was set out in a letter from Mr. Landers to Mr. Driggers dated March 14, 1977 (Beker Exhibit 1). Mr. Driggers subsequently relayed this information to other members of the Board of County Commissioners, and on April 12, 1977, the Board adopted a resolution modifying a portion of the DRI development order which it had issued on January 28, 1975. The earlier order was specifically amended to delete the requirement that the secondary dams be constructed prior to the beginning of mining operations. The requirement that the secondary dams be constructed has not been altogether deleted; however, it is no longer a purpose of the dams to provide any secondary protection from a putative phosphate spill. The dams now have as their primary purpose long-range water supply and flood control. Manatee County is in effect now able to insist that Beker construct the dams at any time that the county so desires, assuming that all proper permits can be obtained. It is unlikely that the county will ever request that a secondary dam be constructed in Wingate Creek in the Myakka River watershed. The Board of County Commissioners of Manatee County did not submit the issues resolved in the April 12 order to the appropriate regional planning agency, and did not, through its order specifically consider all of the potential regional impacts of the order. The Commission concluded that the amendment did not constitute a substantial deviation from the original development order. Following entry of the order the SWFRPC filed this appeal to the Florida Land and Water Adjudicatory Commission. The SWFRPC, and Sarasota County contend that the April 12 amendment constitutes a substantial deviation from the original development order, and that the Board of County Commissioners of Manatee County should have entered the order only after conducting all of the proceedings contemplated in Florida Statutes Chapter 380. Beker Phosphate, Manatee County, and the TBRPC contend that the April 12 order does not constitute a substantial deviation from the original development order. Testimony presented at the hearing related primarily to the secondary dam originally proposed for construction in Wingate Creek in the Myakka River watershed. An initial waste clay settling area with a capacity of 8,848 acre- feet is proposed for construction primarily within the Myakka River watershed adjacent to Wingate Creek. Phosphate slimes would be stored above ground and permitted to settle in this area. The proposed secondary dam would have been located approximately three miles downstream from the settling area. The secondary dam would have had a capacity of 260 acre-feet. The secondary dam would thus have the capacity to contain a limited spill from the primary settling area. The secondary dam would provide no protection from a complete destruction or break down of the dams surrounding the primary settling area, or of any spill from the primary area greater than 260 acre-feet. Such a spill would result in destruction of the secondary dam. Spills of less than 40 acre- feet of material from the primary settling area would have no substantial impact on areas below the secondary dam whether the dam was constructed or not. Spills of a volume between 40 acre-feet and 260 acre-feet could, without the construction of secondary dams, have an impact upon areas below the secondary dams. Turbidity caused by such a spill, and deleterious substances contained in the slime could result in substantial environmental impacts, including destruction of vegetation, and short-term and long-term fish kills at least as far down the system as upper Myakka Lake, which is located in Sarasota County. No evidence was presented to indicate that a spill of from 40 to 260 acre-feet from the primary settling area is likely or more than a mere hypothetical possibility. The only testimony respecting the likelihood of any spill was that if the dams surrounding the primary settling area were constructed in accordance with Department of Environmental Regulation Rules and Regulations, and were properly inspected, there is no likelihood of a breakdown in the dams or of a spill. Argument was presented at the hearing to the effect that phosphate slimes could escape the settling area, or other areas within the mining operation, but there was no evidence to that effect, and certainly no evidence that such leakages or minor spills would be as large as 40 acre-feet. Deletion of the requirement for construction of secondary dams prior to commencement of mining activities as set out in the January 28, 1975 development order, would constitute a substantial deviation from that order only if there were some likelihood of a breakdown in the dams surrounding the primary settling area, or of some leakage at some point in the mining operations that would result in a spill of from 40 to 260 acre-feet of material into the Myakka watershed. No evidence was offered that would serve to establish even the remotest likelihood of such an event. The evidence does, however, establish that construction of the secondary dam in Wingate Creek would have adverse environmental consequences. The construction would take place in a viable wetlands area. The natural flow of water through the Myakka watershed would be disturbed. Construction of the dam would appear to constitute a concession that more than 4 acres of valuable and viable flood plain along Wingate Creek would be given up for the sake of the phosphate mining operations. It is possible that without the dams the result of any spill could be confined to a smaller area than that surrounded by the secondary dams. Without the dams the normal flow of water through the system will not be disturbed, and areas below the primary settling area can remain in their natural condition.
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 The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
Findings Of Fact Parties Petitioner Henry A. Wenz (Wenz) is a resident of Volusia County and submitted oral or written objections during the review and adoption proceedings. Petitioners Hart Land & Cattle Co., Inc., R. L. Hart, and Clyde E. Hart are residents of, own property in, or own or operate businesses in Volusia County and submitted oral or written objections during the review and adoption proceedings. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent Volusia County, which is a charter county, is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. Volusia County is a charter county. Volusia County is located on the Atlantic Coast and is bounded by Flagler and Putnam Counties to the north, Brevard and Seminole Counties to the south, and Lake County to the west. The east boundary runs about 47 miles along the coastline, and the west boundary includes about 75 miles along the St. Johns River before running along lakes to the north and south. Volusia County contains 14 incorporated areas. Only four of these incorporated areas are in west Volusia County: DeLand, which is the County seat; Lake Helen; Orange City; and Pierson. The coastal area contains the remaining 10 incorporated areas, including the county's principal city, Daytona Beach. Public Participation By Resolution No. 86-105 adopted August 7, 1986, Volusia County established various requirements for notice and public hearings in the comprehensive planning process. Acknowledging that the Volusia County Planning and Land Development Regulation Commission serves as the local planning agency (LPA), pursuant to Volusia County Ordinance 80-8, as amended, Resolution No. 86- 105 directs the Volusia County Planning and Zoning Department to accept, consider, preserve, and respond to written public comments. Following the adoption of Resolution No. 86-105, the LPA commenced a process designed to ensure that citizens with a wide range of interests could make substantial contributions to the comprehensive planning process. The LPA formed five citizens' committees, known as Citizen Resource Committees, to consider planning questions corresponding to each of the elements required to be included in the comprehensive plan. Each committee comprised about 20 members, and the chair of each committee was a member of the LPA. 1/ Membership of each Citizen Resource Committee was diverse. For instance, members of the land use committee included homeowners, developers, and environmentalists. The diversity of membership was the result of the LPA's efforts to solicit nominations for membership from a broad range of civic, trade, or professional associations. In all, the LPA asked 150 organizations to make nominations and 62 organizations did so. In the case of the land use committee, for example, members were nominated by, among others, such groups as the League of Women Voters, Association of Condominiums, West Volusia Home Builders Association, and Volusia-Flagler Environmental Political Action Committee, Inc. Each Citizen Resource Committee met about nine times from July, 1988, to May, 1989. Prior to these series of meetings, the LPA conducted a meeting to explain the comprehensive planning process. Each meeting of the LPA or Citizen Resource Committee was open to the public and announced by news releases published in numerous local news media. During the nine months that the Citizen Resource Committees met, Volusia County amended Resolution No. 86-105 to require that all planning materials given to the Citizen Resource Committees, LPA, or County Council be available for review by the public. Adopted February 2, 1989, Resolution No. 89-27 made planning documents available for copying by the public at cost. Following the completion of the work of the Citizen Resource Committees, the LPA then conducted six public workshops between June 14 and June 27, 1989. Large display advertisements were published in local newspapers of general circulation preceding at least some of these meetings, including the June 14 and 19 meetings where it was announced that the LPA would consider certain named elements for recommendation to the County Council. The LPA ultimately recommended the draft elements to the County Council. On July 7, 1989, the County Council held its first public workshop on the proposed plan. Over the next two months, the County Council conducted nine such workshops, at least some of which were announced by large display advertisements in local newspapers of general circulation. Minutes and notes of these workshops indicate that Council members regularly solicited comments from members of the public in attendance. The County Council conducted nine public workshops or hearings from July 7, 1989, through August 29, 1989. The County Council workshops culminated in the transmittal hearing, which took place on September 7, 1989. The hearing was announced by large newspaper display advertisements that satisfied all requirements of law. After transmittal of the proposed plan and receipt of the Objections, Recommendations, and Comments of DCA, the County Council announced by large display newspaper advertisements that a hearing would be conducted on February 22, 1990, to receive public comments and adopt the comprehensive plan. The notice satisfied all requirements of law. The County Council received extensive public comments at the February 22 hearing and continued the hearing to March 8. Again receiving extensive public comment at the March 8 hearing, the County Council continued the hearing to March 15. The County Council adopted the comprehensive plan at the March 15 hearing, although Ordinance No. 90-10, which adopts the plan, indicates that the plan was adopted at a public hearing on March 10, 1990. 2/ Ordinance No. 90-10 adopts the goals, objectives, and policies, but not the supporting data and analysis. Traffic Circulation Element Data and Analysis In preparing the Traffic Circulation Element (TCE), the County first inventoried the existing road system to determine capacity, demand, and overall system performance. To assist in this effort, the County Council retained (Kimley-Horn and Associates, Inc., which issued a report in September, 1989, analyzing the availability of transportation facilities and services to serve existing and future demands (Kimley-Horn Report). The Kimley-Horn Report serves as part of the data and analysis on which the plan was based. Beginning with 1987 conditions, Kimley-Horn noted that the County required nearly $68.2 million of road improvements to attain level of service C on all roads. 3/ To evaluate future needs, Kimley-Horn used a standard traffic forecasting formula and socio-economic data provided by the County Planning Department. After identifying numerous traffic analysis zones and validating the model for the subject forecasting purposes, Kimley-Horn ran ten model runs. In designing various network alternatives, Kimley-Horn considered level of service standards in light of factors such as the requirement of concurrency, the goal of urban in-fill, and the "[d]irect correlation between urban size and acceptance of some highway congestion as a trade off for other urban amenities and cost considerations." Kimley-Horn Report, page 17. The West Volusia Beltline would be located in southwest Volusia County between U.S. 17/92 and 1-4. Comprising several segments, the beltway's southernmost segment is from Graves Avenue to Saxon Boulevard. Apparently while Kimley-Horn was preparing its report, Volusia County adopted a Five-Year Road Program, which includes certain projects from a 2010 financially feasible plan for the coastal area. The Five-Year Road Program, which will cost $94.7 million for right-of-way acquisition and construction, will require $52 million from the County, or $59.3 million after taking into consideration the effect of inflation. From north to south, the Five-Year Road Program includes the following segments of the West Volusia Beltway, which are all under County jurisdiction: Kepler Road to Taylor Road (1.0 mile)--construction of two lanes; Taylor Road to State Route 472 (2.3 miles)--construction of two lanes; and State Route 472 to Graves Avenue (1.0 mile)--addition of two lanes to the two existing lanes. The Kimley-Horn Report estimates that, during the five-year road program, the County will have revenues of only $49.2 million available for road construction without regard to inflation but assuming increases in population and tourism. The report discusses various options, such as raising impact fees, raising the share of gas taxes devoted to construction versus maintenance, and accelerating road projections to negate the effect of inflation. The County- estimated revenues are 6-17% short of estimated costs. In any event, the projected revenue shortfall during the Five-Year Road Program should have no effect on the three West Volusia Beltway projects. The Kimley-Horn Report ranks all of the five-year projects based on relative importance. All three beltway projects are in the top ten, and the cumulative construction costs expended through the first ten projects is $28.8 million, which is well within available revenues of $49.2 million. Assuming that the Five-Year Road Program is timely completed, Kimley- Horn calculated 1995 levels of service by applying County-supplied socioeconomic data to existing traffic models. The result, displayed on Figure 11 in the Kimley-Horn Report, discloses an insignificant segment of U.S. 17/92 in the downtown area at level of service F and, especially relative to east Volusia County, little system mileage at level of service E. Based on the analysis described in the preceding paragraphs, the Kimley-Horn Report concludes that county-wide roadway operating conditions in 1995 are excellent in that, out of 895.3 system miles, only 21.4 miles are predicted to operate at Level of Service F. This represents 2.39 percent of the county's system miles. In the same light, 52.86 miles fall at Level of Service E condition representing 5.9 percent of the total system miles. Overall, approximately 92 percent of the county-wide roadway system-miles is predicted to operate at Level of Service D or better in 1995. Kimley-Horn Report, pages 58-60. Table 28 of the report, which divides the County into 11 geographic areas, prioritizes road segments for construction after 1996 based on volume-to- capacity ratios projected for 1995 after completion of the base network. 4/ Table 28 projects no excessive use of segments in west Volusia County. The average volume-to-capacity ratios in west Volusia County are projected as follows: for the area north of DeLand--0.40; for the area south of DeLand--0.60; and for the area west of Deltona--0.75. Although the last area contains three segments with ratios over 0.90, the West Volusia Beltline would, in 1995, have a volume-to-capacity ratio of only 0.44. Designing a 2010 network, Kimley-Horn analyzed additional highway segments selected from a financially feasible plan and various alternatives previously considered in the report. These segments, which are listed in Table 19 of the report, exclude all of the roads contained in the Five-Year Road Program. The total cost, including right-of-way acquisition, construction, and inflation, is $1.38 billion, with the County's share at $510 million. From north to south, the 2010 network contains the following segments of the West Volusia Beltway, which are all projected to remain under County jurisdiction: State Route 44 to State Route 472 (5.6 miles)--addition of four lanes to two lanes in the existing or base network; State Route 472 to Graves Avenue (1.0 mile) --addition of two lanes to four lanes in the existing or base network; and Graves Avenue to Saxon Boulevard (3.0 miles)--construction of four lanes where none exists in the 1995 network. However, the 1995 level of service projections properly ignore those segments of the West Volusia Beltway included in the 2010 network, including the new four lanes south of Graves Avenue, because these segments are not part of the existing or base network. The Kimley-Horn Report estimates that gas taxes and impact fees available to the County to fund the County's system improvements from 1996 through 2010 will total only about $278 million. Assuming that future state contributions will equal past contributions, the Kimley-Horn Report estimates that state revenues for system improvements will total about $272 million from 1996 through 2010. The total County and state contributions are projected to be about $550 million for 1996 through 2010, which would leave a projected combined state/County deficiency of $338 million. The Kimley-Horn Report recommends that the County update the TCE once the projected revenue shortfall materializes following the construction of the base network in 1995. Specific items to be considered include the adjustment of level of service standards, identification of new revenue sources, and adjustment of permitted densities and intensities in the affected areas. The Kimley-Horn Report concludes that the plan updating process should be viewed as an on- going, iterative process whereby road needs, available revenues and finally financial analysis merge... This process is designed to provide a dynamic and on-going planning tool that can be used to provide an on-going monitoring and updating program for the transportation system in Volusia County. Kimley-Horn Report, page 83. Goals, Objectives, and Policies 1. Bicycles and Pedestrians TCE Objective 2.1.1 states that, prior to 1996, the County "shall implement programs to provide a safe, convenient, and efficient motorized transportation system." TCR Objective 2.1.2 states that, prior to 1995, the County "shall implement programs to provide a safe, convenient, and efficient non-motorized transportation system." TCE Policies 2.1.1.4 and 2.1.2.2 state that, prior to October 1, 1990, the County "shall develop regulations for the safe and efficient movement of pedestrians within all new development proposals" [sic]. TCE Policy 2.1.2.1 states that, prior to 1993, the County "shall coordinate with the MPO to develop a County-wide bicycle facilities plan." The Capital Improvement Program schedules all significant capital projects to be undertaken for the six years between 1990-1995. An adopted part of the plan, the Capital Improvement Program contains a summary of road projects beginning at page C-243. The table shows, by year and amount, expenditures for all capital road projects, including the above-described segments of the West Volusia Beltway without significant alterations. Also included are $1.17 million for constructing bike paths in fiscal year ending 1990 and $180,000 for constructing bike paths in the following year. Beginning in fiscal year ending 1991 and through the end of the covered period, the table shows that the County intends to spend about $370,000 annually constructing bike paths/sidewalks and, in the first two years, $860,000 in widening bike paths. 2. Level of Service Standards for Roads The objectives and policies under TCE Goal 2.2 set the level of service standards applicable to roads in the County. TCE Objective 2.2.1 states: Upon adoption of the Comprehensive Plan, Volusia County shall establish peak hour level of service standards and prior to 1996, Volusia County shall achieve and maintain standards for peak hour levels of service on the thoroughfare system. TCE Policies 2.2.1.3 through 2.2.1.6 establish the peak hour level of service standards for state-and County-maintained roads. The level of service standards for state-maintained freeways and principal arterials, in the urbanized and nonurbanized areas, are D and C, respectively. The level of service standards for state-maintained minor arterials and collectors, in the urbanized and nonurbanized areas, are E and D, respectively. TCE Policy 2.2.1.6 sets the level of service standards for County-maintained arterials and collectors, in the urbanized and nonurbanized areas, at E and C, respectively. With respect to the reduced level of service standard allowed on County roads in urbanized areas, TCE Policy 2.1.1.7 explains that the County "shall expend County transportation funds in a manner which encourages compact urban development." TCE Policies 2.2.1.3 through 2.2.1.6 permit certain exceptions to the general level of service standards. A major exception is that the level of service standards apply only to road segments that are neither backlogged nor constrained. By means of this exception, the County distinguishes between roads operating at or above 5/ their adopted level of service standards and capable of widening, which are subject to the general level of service standards, and roads that are, at the time of plan adoption, operating below their adopted level of service standards or are incapable of widening, which are backlogged or constrained, respectively. The plan defines a backlogged road as one operating at a level of service standard below the minimum adopted by the County Council. However, a road operating below its designated level of service standard is not a backlogged road if it is a constrained facility or if it is scheduled for capacity improvements in the five-year road program of the Florida Department of Transportation or the County Council. 6/ Plan Element 20, Paragraph 14. A constrained road is one to which two or more lanes cannot be added due to physical or policy barriers. Plan Element 20, Paragraph 41. TCE Policies 2.2.1.7 through 2.2.1.9 identify backlogged road segments. TCE Policy 2.2.1.10 requires that the actual level of service standard for each identified backlogged road segment be raised by one standard by 1996. TCE Policy 2.2.1.11 requires that the level of service standards for each identified backlogged road segment attain, by 2001, the general standards set forth in TCE Policies 2.2.1.3 through 2.2.1.6. For constrained roads presently at their adopted level of service standards, TCE Policy 2.2.1.22 provides that, barring acceptable mitigation, the County shall not allow further development after the constrained road reaches the applicable level of service standard. 3. Concurrency Requirements The introduction to the Capital Improvements Element (CIE) links the concepts of level of service and concurrency. The introduction, which is not an adopted part of the plan, notes: "The existing service level was used as a benchmark for most of the proposed service level standards found in this draft [sic] element." The introduction acknowledges: Adjusting service levels [and] facility costs to projected revenue allocated to capital facilities is part of the [planning] process. If revenue allocated to pay for capital costs is insufficient, then either service levels have to be reduced or additional revenue raised or created to support the desired level of service. CIE Policy 15.1.1.3 prohibits the issuance of a development order for development that would degrade the level of service standard below the adopted standard, unless the plan specifically permits such a degradation. CIE Policy 15.3.1.1 states that the level of service standards adopted in the plan apply to all development orders issued after October 1, 1990. The issue of vested rights, which is generally reserved for land development regulations, is addressed to some degree in the plan. CIE Policy 15.1.1.7 requires orders for developments of regional impact, if issued after October 1, 1990, to be subject to the plan's concurrency requirements. CIE Policy 15.3.4.3 contemplates the reduction of level of service standards due to the effect of vested development; however, a plan amendment is required in such cases. Recognizing the importance of vested development in terms of demand on public facilities, CIE Policies 15.5.4.6, 15.5.5.1, and 15.5.5.2 require a study of reserved capacities and inventory and analysis of capacity remaining after the demands of vested development have been met. CIE Objective 15.5.1 states that the concurrency provisions adopted as part of the plan will become effective October 1, 1990. Other concurrency provisions are to be included in land development regulations. CIE Policy 15.5.1.1 identifies those facilities, including roads, for which concurrency is required. CIE Policy 15.5.1.3 states: The required facilities shall be in place and operating or estimated to be operating at a minimum service level established in this Comprehensive Plan at the time a building permit is issued, or a building permit is issued subject to the condition that the required facilities shall be in place prior to issuing of that final development order. A final development order is a building permit. Plan Element 20, Paragraph 52. CIE Policy 15.5.1.4 states that the required facilities shall be deemed concurrent "if they are under construction or under contract for acquisition at the time a building permit is issued." CIE Policy 15.5.1.5 adds that the required facilities shall be deemed concurrent "if they are the subject of a binding contract executed for the construction or acquisition of the required facilities at the time a building permit is issued." CIE Policy 15.5.1.6 states: New developments may meet the test for capacity and concurrency if they can be supported by the construction of specific facilities and the expansion of facility capacity by specific projects contained in the first year of the Capital Improvements five year schedule of programmed improvements (Capital Budget), following the issuance of a final development order. This policy shall pertain to the following facility categories: roads ... Specific conditions for the timing of private development and completion of the above facility categories shall be part of an enforceable development agreement and shall be part of the County's development review process when land uses and their densities/intensities are first proposed. Specific timing and phasing of these facilities in relationship to the issuance of building permits and other final development orders shall be delineated in [various land development regulations]. However, CIE Policy 15.5.2.2 requires: The following facilities shall be available to coincide 7/ with approval of building permits for developments that are to be built during a single phase: roads ... It shall be the intent of this policy to ensure that the above-mentioned facilities and services needed to support such development are available concurrent with impacts created by such developments... Specific timing and phasing conditions related to the above concurrency facilities shall be identified in greater detail in [various land development regulations]. Dealing with development projects designed to take place over several years, CIE Policy 15.5.2.3 provides in part: In these cases, programmed improvements from the Five Year Schedule of Improvements shall be included as part of the concurrency determination as long as their availability coincides with the impact of such a multi- year, multi-phase development. CIE Policy 15.5.2.4 addresses the situation in which necessary public or private facilities are delayed. If the delayed facility "may imperil the public health, welfare and safety," the County "may impose delay requirements on any permits it has issued so that public facility availability may be approximately concurrent with the impact of new development." Just as the backlogged and constrained roads are subject to special level of service standards, so too are they subject to special concurrency provisions. These provisions are contained in the policy cluster under CIE Objective 15.5.3. CIE Policy 15.5.3.1 describes the process by which the County will monitor levels of service on backlogged roads. The process begins with documenting as a benchmark the traffic counts on these roads prior to the adoption of the plan. CIE Policy 15.5.3.1.b provides that each backlogged road "shall not be allowed to degrade its operational service standards ... by ... more than twenty (20) percent of the peak hour bench mark [traffic] counts ... " 8/ The monitoring provisions require the County to use generally accepted traffic modeling procedures to project the number of trips generated by proposed developments and the likely distribution of these trips. Regarding backlogged roads, CIE Policy 15.5.3.1.e states: The County shall not approve any additional final local development orders, (excluding vested properties) including building permits, once the percent threshold for projects within urban/urbanized area center(s) including municipalities is reached from final development orders only if such local development orders would generate trips in excess of ten/fifteen/twenty percent on a peak hour basis, unless a final development order is subject to the adoption and implementation of an Area-wide Traffic Action Mitigation Plan. An Area-wide Traffic Action Mitigation Plan shall include, but not be limited to, the following activities: turn lanes signalization incentives for employees to use mass transit where available van/car pooling programs staggered work hours CIE Policy 15.5.3.1.f states that the "goal" of the Area-wide Traffic Action Mitigation Plan is to achieve "100 percent mitigation of the impacts of a proposed development" and that, where applicable, the plan shall include participants besides the developer, such as "adjacent property owners, business establishments and homeowner associations." CIE Policy 15.3.4.8 states: The adopted Volusia County Five Year Road Program, reflected in the Capital Improvements Element's five year schedule of capital improvements[,] will provide the capacity necessary to relieve backlogged State roads. In the event that revenues collected from transportation (road) impact fees fall short of projections and the need arises to delay any of the identified capacity projects, Volusia County shall amend this element and the Traffic Circulation Element through coordination with the Florida Department of Transportation and performing [sic] speed delay studies to more accurately evaluate the level of service on the effected [sic] backlogged road. The County shall temporarily defer the issuance of development orders having direct impact on the facility which cannot be corrected through implementation of a Traffic Action Mitigation Plan as identified in 15.5.3.1(e) of this element, until such time that the level of service has been improved to the acceptable level. Any change in service level standards as a result of speed delay studies shall be done through a plan amendment. 9/ Awkward grammar in the first sentence of CIE Policy 15.5.3.2 precludes a finding as to what constrained facilities are addressed by this policy, but in general the policy provides that the County "may allow development to occur [on these constrained facilities] which will not increase peak hour traffic volumes by more than five or ten percent." Five-percent degradation is allowed for physically constrained state roads, and ten-percent degradation is allowed for policy constrained state roads. CIE Policy 15.5.3.2 requires the developer of the development impacting a constrained road to prepare a Traffic Analysis and implement an Area-wide Traffic Action Mitigation Plan, but only after an urbanized constrained state road has degraded to its minimum level of service, as set forth in the plan. At this point, "no further degradation will be permitted below the minimum approved local service levels set for constrained roads, that in 1989 were operating at or above the desired minimum service level." CIE Policy 15.5.3.2.d prohibits the County from denying a development order if the developer demonstrates a willingness to maintain service levels by entering into an enforceable development agreement including the implementation of either an Individual or Area-Wide Traffic Action Mitigation Plan, where the developer has demonstrated good faith to achieve 100 percent mitigation of the impact of such development. Payment of the road impact fee may not necessarily meet the 100% mitigation desired. For constrained County roads, the County "shall closely monitor" traffic volumes. Once the constrained road reaches its minimum acceptable level of service (C if nonurbanized, E if urbanized), TCE Policy 2.2.1.22 provides: "the County may not allow further development which cannot provide acceptable mitigative measures to the adverse traffic impacts of the proposed development." For development impacting either a backlogged or constrained road, TCE Policy 2.2.1.23 requires the developer to prepare an "Area-wide Traffic Action Mitigation Plan" covering those geographic areas specified as affected by relevant land development regulations. Other policies describe the traffic impact model in detail and procedural processes by which persons denied development orders may challenge the factual bases underlying the denial. CIE Policy 15.5.4.1 limits to two years the life of the concurrency determination for all public facilities for which concurrency is required, unless the County and applicant agree otherwise. In the latter case, however, the applicant must guarantee his financial obligations for public facilities by providing a cash escrow deposit, irrevocable letter of credit, prepayment of impact fees, prepayment of connection charges, or Community Development District, pursuant to Chapter 190, Florida Statutes. CIE Policy 15.5.4.4.1 provides that "if concurrency and facility capacity is not available or cannot be made available through Policy 15.5.4.1(2)(a) ..., these findings shall be reasons for denial of such development orders." CIE Policies 15.5.5.7-15.5.5.9 add detailed requirements to the land development regulations concerning the concurrency management system and specifically the evaluation and monitoring necessary for the successful operation of a concurrency management system. 4. Financial Feasibility of Road Projects The final section of the CIE, although not formally adopted as part of the plan, is entitled, "An Introduction to the [CIE] Six Year Program: Fiscal Year 1989-90 to Fiscal Year 1994-95." This section begins: "The proposed [CIE]'s Five Year Program is feasible only to the extent that certain actions can be implemented prior to October 1, 1990." These actions include the following: approval of the one cent optional sales tax by May, 1990; increase of road impact fees to cover an estimated $6 million shortfall; and restriction of the funding of road safety and other road projects to sources other than existing gas tax revenues, such as the one cent optional sales tax, increased ad valorem taxes, or other sources. The introduction to the CIE concedes that the one cent optional sales tax is a key future revenue source to pay for improvements for facilities that either have no dedicated revenue source or that have revenue sources that have been used in the past but are no longer adequate to maintain or improve service levels into the future. Clearly without the One Cent Optional Sales Tax, the amount of Capital Improvements will have to be reduced in half. This will have severe impacts on service levels for ... roads ... The introduction reasons that ad valorem property taxes should not be used extensively for financing much of the required facilities because ad valorem taxes are needed to operate the newly constructed facilities and the seasonal population does not pay its fair share of the cost of facilities when they are financed by ad valorem taxes. Although not adopted as part of the plan, the data and analysis supporting the CIE contain useful background information concerning financial feasibility. Table 15-15 indicates that the County's share of the optional one cent sales tax would have been $81.3 million for the six-year period, 1990-95. Table 15-16 shows, for the same period, that capital road projects constitute about 24% of all capital expenditures. The Capital Improvement Program begins with a budget message from the County manager. Stressing the importance of the one cent optional sales tax, the message concludes that the only other viable Source of funding the County's infrastructure needs is the ad valorem tax. The total cost of road projects for 1990-96 is $122.6 million. Capital Improvement Program, page C-246. Of this sum, the local option sales tax was Projected to Provide $35.6 million. Id. During the same period, the County's capital expenditures are Projected to total $417.8 million. Capital Improvement Program, page B-2. Of this total, $249 million was Projected to be spent on facilities for which concurrency is required. Id. CIE Objective 15.3.1 places roads as the highest priority among all other facilities. The objectives and policies under CIE Goal 15.4 describe the funding Sources for capital projects. These Sources include user fees, impact fees, broad-based revenue sources, and debt Proceeds. Among user fees, CIE Policy 15.4.1.9 allocates the gas tax between maintenance and construction expenditures. CIE Policy 15.4.1.10 extends all gas taxes under the County's control to 2010. CIE Policy 15.4.1.11 directs the County to use "to the maximum extent possible" all other road user fees, such as toll roads, utility taxes, and special assessments. Addressing impact fees for roads, Objective 15.4.2 provides: Future development shall bear their fair share (a pro rata share) of not less than seventy (70%) percent of road facility costs including [right-of-way] as a result of their development in order to achieve and maintain the adopted level of service standards and other measurable objective standards. CIE Policy 15.4.2.6 requires the County to "verify that the impact fees are sufficient to cover the pro rata share of improvement costs necessitated by new development." CIE Objective 15.4.3 promises that the County will "rely primarily on the broadest revenue bases as possible for the funding of Capital facilities." CIE Policy 15.4.3.2 reserves the one cent optional sales tax for facilities for which no dedicated revenue sources exist. CIE Policy 15.4.3.3 restricts the County from using increases in the ad valorem tax millage rate for purposes other than operating costs associated with future additional capital facilities, unless other sources of funding are not available. CIE Policy 15.4.3.5 considers the alternatives if the one cent optional sales tax were not approved by the voters. In such a case, the County shall consider, among other measures, increasing the ad valorem tax millage rate to fund public facilities for which concurrency is required, creating special taxing districts, reducing service levels, increasing yet-to-be specified new revenue sources, and selectively using Community Development Districts. 10/ Relevant Provisions of the Regional Plan Policy 64.1 of the East Central Florida Comprehensive Regional Policy Plan (Regional Plan) provides: Local governments and the Florida Department of Transportation will set appropriate minimum levels of service for components of the regional roadway system under their respective jurisdictions. The ... Regional Planning Council will assist these bodies in developing their service standards, with the following level of service standards being used as guidelines in the determination of levels of service for individual components of the regional roadway system: In rural areas (Level of Service "C") * * * In urban fringe, urban residential areas, and outlying business districts (Level of Service "D") * * * In central business districts (Level of Service "E") * * * The minimum levels of service determinations will be based on the following criteria: Regional level of service guidelines: Existing conditions of each roadway: Planned programmed roadway improvements: Financial constraints: and Local Comprehensive Plans, and adopted DRI or other development orders. Level of service E on roads of the State Highway System are subject to the agreement of the local government, regional planning council, Florida Department of Transportation, and Metropolitan Planning Organization. Regional Plan Policy 64.5 provides: Access to minor arterials, major arterials and expressways shall be limited in order to maximize their traffic-carrying capacity and safety ... Regional Plan Policy 64.8 states: The principle of equitable cost participation shall be used as a guide in development approval decisions, including allocation of costs among private parties benefiting from or creating the need for transportation improvements, with consideration being given to: New development being required to pay its fair share as a condition for development approval, unless sufficient funds are available from other sources; Existing unmet needs being identified, to include the nature of the need and estimated cost of fulfillment; and Existing land uses and activities which benefit from better access being required to participate in the cost of the roadway improvement or new construction which results in the improved access in the form of user fees or special assessments. Provisions being made in local development orders to include the mitigation of adverse impacts on the state highway system. Regional Plan Policy 64.6 requires that traffic signalization, roadway signage, and operational capacities be designed "to optimize traffic flow and enhance the levels of service throughout the regional roadway network. Regional Plan Implementation Policy 64.5 provides in relevant part: Local governments are requested to undertake the following actions: Evaluate the feasibility and practicality of enacting ordinances capable of assessing existing landowners a proportionate share of costs associated with the elimination of unmet needs based on the provision of enhanced level of service benefits accruing from roadway improvements or new construction projects. Enact impact fee ordinances which are designed to cover the fair share cost of roadway improvements on local and state roadways except for that portion of deficient capacity already existing. Seek public review and comment on all new roadway construction proposals and widening projects. Regional Plan Implementation Policy 64.6 requests Metropolitan Planning Organizations to take certain actions and is thus irrelevant to the present case. Capital Improvements Element The financial feasibility of the entire plan, which is challenged by Petitioners Hart, has been considered to some extent in the findings concerning roads. These findings involve not only the financial feasibility of the Capital Improvement Program for roads, but the overall financial feasibility of the plan. As explained in the corresponding section of the Conclusions of Law, the optional one cent sales tax may be considered to a greater extent in determining the financial feasibility of the entire plan than it may be considered in the availability of scheduled capital projects in making concurrency determinations. The Capital Improvement Program, which schedules capital improvements for the six year period from 1990-1995, identifies, as noted above, $417.8 million in capital expenditures. Although the sources of funding are not collected in a single table like expenditures are, revenues are identified in numerous tables covering each of the numerous categories of public expenditures. In each case, revenues match expenditures. The Capital Improvement Program does not address alternative revenue sources to the optional one cent sales tax. However, CIE 15.4.3.5 describes revenue alternatives to the optional one cent sales tax. Future Land Use and Conservation Elements Data and Analysis The data and analysis accompanying the Future Land Use Element (FLUE) contain population tables prepared by the County, U.S Census, and Bureau of Economic and Business Research, University of Florida. The population projection for 2000, which is 506,000 persons, is the high-range projection prepared by the Bureau of Economic and Business Research. Support Document #1-1, page 14. Among the factors considered in the land use suitability analysis are the type of soil, presence of wetland vegetation, and nature of the floodplain if the land is located in the 100-year floodplain. Support Document #1-5, page Analysis of these factors is incorporated into a suitability rating system, which is then projected onto maps. Id. The land use suitability analysis contains an extensive inventory of native habitats, soils, and existing land uses by region. The suitability rating system factors in other items such as the availability of central water and sewer and the presence of historic resources. Support Document #1-6 describes the process by which future uses are allocated to the land. Taking the projected population of the unincorporated part of the County, the analysis first allocates the population among six geographic planning areas. Determining the number of dwelling units needed to accommodate the projected population, the analysis generates data indicating the additional acreage required, by the end of the planning timeframe, to accommodate expected residential and nonresidential uses. A growth factor of 30% is then added to the residential and commercial categories due to high growth rates expected from the County's proximity to Disneyworld and the proposed Spaceport. Support Document 1-7 describes the process by which the land uses necessary to accommodate the previously described growth are designated on the future land use maps. Data and analysis supporting the future land use designations for forestry, agriculture, and environmental uses are found in Support Document #12- 1, which accompanies the Conservation Element. Based upon considerable data concerning wildlife and native habitats, the analysis concludes that "there are broad expanses of ecologically interconnected lands." Id. at page 12R-50. The analysis recommends that the plan establish a land use category within which urban development would be discouraged... Because growth should be directed towards those lands best able to accommodate future development, marginally suited lands for development should be placed in a Natural Resource Management Area (NRMA), as should interconnecting environmentally sensitive and ecologically significant lands. This would include ... inland swamp systems, riverine and estuarine flood plains, critical wildlife habitats, and endangered, rare or threatened ecosystems." The recommendation for the establishment of Natural Resource Management Areas (NRMA) explains further: The area within the NRMA should be divided into districts of special use, promoting activities which are compatible with natural resource protection. Among these divisions should be one which affords a degree of protection to natural systems which would assure their continued, uninterrupted preservation. Although several thousand acres of these lands are in public ownership, there is not enough public funds to purchase all the environmentally sensitive lands in the County, and therefore requires land use controls to ensure an adequate degree of ecological integrity. Because a major component of the value of natural communities is the ecological interrelationships with other natural communities, a highly effective way to protect ecological functions would be to form a natural areas network, or corridors. Land which falls within this network, referred to as Environmental Systems Corridors (ESC's), would be restricted to land use activities which inflict extremely small long term impacts on ecological functions, primarily a type of large lot conservation residential and passive types of agriculture, particularly silviculture. The corridors should include protected systems of wetlands, conservation lands and, where possible, rare and threatened upland communities such as mesic hammocks and longleaf pine-oaks. Because silviculture is the predominant use on the relic marine terraces, and that this use appears to be the most suitable for the terraces given the natural constraints of the land, a forestry district should be established within the NRMA. The intent of the forestry district would be to promote silvicultural pursuits and to keep this a predominant use on the relic terraces. This should be part of the NRMA because silvicultural activities typically have the least impact on natural resources other than public ownership, and thus should be encouraged on private landholdings. Other types of agricultural uses should be allowed in the forestry district to provide a certain amount of flexibility, but silviculture should be the predominant use. * * * Established agricultural areas which occur within the NRMA, particularly around Samsula should be considered an agricultural enclave within the NRMA, and should have the appropriate agricultural land use classifications. The enclave should allow room for a limited amount of agricultural growth. Id. at pages 12B-51 and 12B-52. Although the analysis concedes that the data are unavailable by which to map the vegetative communities at a sufficiently high level of detail, the mapping was scheduled to be completed by March, 1990. In the meantime, maps contained in the Support Document indicate generally the location of important vegetative communities, partly because of extensive reliance upon NASA infrared maps of wetlands and vegetation. Goals, Objectives, and Policies Various goals, objectives, and policies are relevant to Petitioners Hart's challenge to the relationship between the forestry, agricultural, and environmental designations and the operative provisions of the plan. Conservation Element Objective 12.2.1 is to "provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Toward that end, Conservation Element Policy 12.2.1.1 provides that "[e]xisting, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning." These units are NRMA's. Conservation Element Policy 12.2.1.1 identifies specific areas to be included in NRMA. Conservation Element Policy 12.2.1.2 requires the County to: promote land use activities compatible with the intentions of the NRMA through the establishment of special use areas, the boundaries of which to be determined by resource data including: ecological community mapping as stated in Policy 12.2.2.1, USGS Topographic maps; National Wetland Inventory maps; Florida Natural Area Inventory records; available wildlife data; and site specific field information if available. Conservation Element Policy 12.2.1.2 establishes Environmental Systems Corridors (ESC) and Forestry areas within NRMA's. The policy identifies these two designations as follows: ESC's shall include significant interconnected natural systems of environmentally sensitive lands, connected to and including conservation areas where possible. Land use activities shall be limited to conservation, silviculture utilizing Best Management Practices, and large residential lots with limits on land clearance. Proposed roads which encroach within ESC's shall minimize adverse impacts by: aligning the routes at the least sensitive areas (e.g., narrowest width of wetlands); requiring sufficiently sized bridging and culverts over wetlands to allow non-interrupted water flow and wildlife access; and posting low speed limits and/or caution signs. A forestry category shall be established which shall promote the continued and expanded use of silviculture in Volusia County. Because the mixed use concept is an integral component of forest management, the standards of this category shall not interfere with this practice, so long as silviculture remains the dominant use and best management practices are followed. The Future Land Use Categories, which are adopted as part of the plan, describe in more detail the ESC, Forestry, and Agriculture designations. Most significantly, the Future Land Use Categories set residential densities at one unit per 25 acres for the ESC designation, an average of one unit per 20 acres for the Forestry designation (but one unit per five acres may be permitted), and one unit per ten acres for the Agriculture designation. FLUE, pages 1-2 to 1-6. The general designation of NRMA's is intended to carry out FLUE Objective 1.2.1, which requires FLUE designations to "reflect the inherent capabilities and limitations of the existing natural features of the land." FLUE Policy 1.2.1.1 requires that, during the development review process, the County shall consider the site's topography, vegetation, wildlife habitat, flood hazard, and soils, as well as the location of the 100-year floodplain. FLUE Policy 1.2.1.3 states that "lands most suited for silviculture activities shall be [designated] under the Forest Resource subcategory of NRMA." FLUE Policy 1.2.1.4 limits the extent of intensive agriculture in any NRMA. FLUE Policy 1.2.1.5 restricts residential development in any Forest Resource area to one unit per five acres. FLUE Coal 1.4 is to "ensure that agricultural and silvicultural lands are protected from encroachment by incompatible land uses and remain a vital element of the County's economy." FLUE Policy 1.4.1.1B provides that urban growth is to be directed away from Agriculture areas. Miscellaneous Findings Petitioners Hart own 11/ 1000-1500 acres at County Road 415 and State Road 44 in the vicinity of Samsula (Samsula Land). They also own 2000-2500 acres just west of Edgewater, south of State Route 44, and mostly east of I-95, which is known as the Charles Sibbald Grant (Sibbald Land). About 500-700 acres of the Sibbald Land lie west of I-95. About three miles south of the Sibbald Land, Petitioners Hart own 6000-8000 acres that is divided almost equally by I- 95 and is known as the John Lowe Grant (Lowe Land). It is not possible to cross I-95 where it divides the land. The Sibbald Land and Lowe Land have no improved roads or other public facilities. Petitioners Hart acquired all of the land for investment purposes. The Samsula Land is mostly undeveloped and used largely for cattle and possibly timbering. The Sibbald Land is a contiguous block of land that has not been subdivided. Hart Land & Cattle Co. acquired the land in the early 1970's. Timber has been harvested on the smaller section of this land west of I-95. The trees have been harvested for about 50 years. Back in the 1940's, a turpentine business was operated on the land. Petitioners Hart have also mined shell for road bases and red sand for asphalt from the Sibbald Land. Petitioners Hart acquired the Lowe Land in 1980 or 1981. Consisting of numerous noncontiguous lots, the Lowe Land is part of a 14,000-acre subdivision known as Cape Atlantic Estates, which was subdivided into 6000-7000 parcels in the late 1960's. Cattle are kept on the northeast corner of the Lowe Land. The Lowe Land has contained improved pastureland for almost 70 years. The record provides no basis for findings of the extent to which land owned by Petitioners Hart is subject to the ESC, Forestry, and Agricultural designations; the extent to which Petitioners Hart have been denied proposed uses of their land; the extent to which Petitioners Hart have exhausted County administrative remedies, such as requesting field surveys, to obtain available relief from the impact of the NRMA designations; or other matters relevant to the taking claims of Petitioners Hart. However, the evidence fails to establish that Petitioners Hart have been denied all economically reasonable uses of their entire property or any individual parcel. Ultimate Findings of Fact Traffic Circulation Element 1. Data and Analysis The evidence fails to establish to the exclusion of fair debate that the analysis accompanying the TCE inadequately addresses existing levels of service and present and future system needs, as well as the need for new and expanded facilities. The evidence fails to establish to the exclusion of fair debate that the analysis inadequately addresses projected levels of service based on future land uses and the relevant plans of other jurisdictions. The evidence is clear that the West Volusia Beltway is feasible, given the funding priorities assigned to its various projects in the plan. There is substantial evidence to support the transportation data and modeling on which the road networks are based. There is no significant evidence that the projected levels of service for any road segments are inaccurate due to an unjustifiable reliance on the traffic to be borne by the West Volusia Beltway or for any other reason. Petitioner Wenz alleged that TCE Policy 2.2.1.6, which establishes a level of service standard of E for County-maintained roads in urbanized areas, was internally inconsistent with the introductory language of the CIE concerning the use of existing level of service standards as benchmarks for most of the proposed level of service standards set forth in the plan. This allegation has been treated as raising the issue of supporting data and analysis. 12/ For roads, the analysis begins with the existing levels of service and then, as indicating in the introduction, adjusts service levels to correspond to projected revenues. If the use of the word "benchmark" were to imply an unvarying standard, then the sentence would impose upon the planning effort an unrealistic and, in the case of the County's urban containment strategy, unworkable limitation. Operative plan provisions should not be rejected because of lack of support from incompetent analysis. 2. Goals, Objectives, and Policies The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible in terms of scheduled road projects. Roads receive the highest priority for capital spending in the County. Although the optional one cents sales tax required a referendum, the plan adequately identifies other potential sources of revenue to fund needed road improvements. The unavailability of the optional one cent sales tax means the loss of $35.6 million for road projects over the six-year period covered by the Capital Improvement Program. Representing about 29% of the road budget for these six years, the optional one cent sales tax can be replaced by other funds. Total capital spending over this period is projected at $417.8 million, of which $249 million is projected for facilities for which concurrency is required. The evidence does not establish to the exclusion of fair debate that the shortfall of $35.6 million, under these facts, renders the plan financially unfeasible as to roads. As the plan acknowledges, another factor supporting the financial feasibility of the plan as to roads is the concurrency provisions. 13/ The evidence fails to establish to the exclusion of fair debate that the plan fails to create a monitoring system to enable the County to determine whether it is adhering to the adopted level of service standards and whether public facilities are available. The evidence fails to establish to the exclusion of fair debate that the plan fails to require development agreements to ensure that required facilities will be in place when the impacts of development occur. During periods of revenue shortfalls, timely concurrency determinations supported by an effective monitoring system and understandable level of service standards may help preserve financial feasibility. A concurrency management system breaks the cycle by which the impacts of development outpace the ability of a local government to finance needed infrastructure. To prevent the accumulation of infrastructure deficits, such as backlogged roads, a concurrency management system limits development whose impacts exceed the available capacity of facilities for which concurrency is required. In the absence of funding from the developer or a third party, a financially strapped local government no longer permits the proposed development and thus does not increase the backlog of needed public facilities. The portion of Petitioner Wenz's challenge to provisions governing development agreements also raises the issue of concurrency determinations, at least in the situation where the developer, rather than the County, is providing the required facilities. As to development agreements, CIE Policies 15.5.1.6 and 15.5.3.2.d provide for the use of enforceable development agreements to provide required facilities. CIE Policies 15.5.1.1 et seq. establish generally applicable concurrency requirements that adequately correspond, for the purpose of resolving the present claims, to the concurrency criteria in Rule 9J-5.0055. The concurrency determinations for developments impacting backlogged and constrained roads reflect a strategy of adjusting level of service standards, subject to clear standards and specific time limits, to provide time to eliminate deficiencies that have accumulated over the years. The evidence fails to establish to the exclusion of fair debate that this strategy, when used in development agreements, precludes effective concurrency determinations or, when considered in light of the financial feasibility of road projects, renders the plan financially unsound. 3. Consistency with Regional Plan The evidence fails to establish to the exclusion of fair debate that the plan is inconsistent with the cited provisions of the Regional Plan. Most importantly, the plan's level of service standards are consistent with those contained in Regional Plan Policy 64.1, and the plan's sources of revenue are consistent with the principle of equitable cost participation in Regional Plan Policy 64.8. To the extent that the remaining Regional Plan provisions cited by Petitioner Wenz contain criteria against which the plan may be measured, no evidence suggests the existence of any inconsistencies. Capital Improvements Element The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible. Future Land Use Element 1. Data and Analysis 120. The evidence fails to establish to the exclusion of fair debate that the data and analysis fail to include a land use suitability analysis or that they fail to support, such as through the absence of accurate population projections, the NRMA designations of ESC, Forestry, and Agriculture. To the contrary, the land use suitability analysis is thorough, and the omission of these NRMA designations or equivalent conservation designations would itself have been unsupported by the data and analysis. 2. Maps and Goals, Objectives, and Policies The evidence fails to establish to the exclusion of fair debate that the NRMA designations of ESC, Forestry, and Agriculture, or any other designations contained on the future land use maps, are inconsistent with the operative provisions of the plan. Again, to the contrary, these NRMA designations graphically depict the text of relevant goals, objectives, and policies.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of all Petitioners. ENTERED this 2nd day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1991.
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
