Findings Of Fact The Applicant, Protestant, and Department submitted Proposed Findings of Fact pursuant to Rule 3C-9.11, Florida Administrative Code. The Applicant's Proposed Findings of Fact are accepted except where they might specifically conflict with the Findings stated in the Hearing Officer's Report or where they may constitute conclusions of law, with the following exceptions: The last sentence of Proposed Finding Number 8 is rejected to the extent that it constitutes a legal argument as opposed to a finding of ultimate fact. Proposed Finding Number 11 is rejected in that it constitutes legal argument as opposed to a finding of ultimate fact. Proposed Finding Number 15 is rejected in that it constitutes a conclusion of law. The Protestant's Proposed Findings of Fact are accepted except where they might specifically conflict with the Findings stated in the Hearing Officer's Report or where they may constitute conclusions of law, with the following exceptions: The first sentence of Proposed Finding Number 6 is rejected in that it is speculative, constitutes legal argument, and is not supported by competent substantial evidence. The last sentence of Proposed Finding Number 6 is rejected in that it constitutes a conclusion of law as to the reason why the Protestant's bank charter was granted. The first, third, fourth and fifth sentences of Proposed Finding Number 10 are rejected, as they constitute legal arguments based upon restatement of testimony, as opposed to findings of ultimate fact. The second sentence of Proposed Finding Number 11 is rejected in that it constitutes a conclusion of law. Proposed Finding Number 14 is rejected in that it consists of argumentative references to testimony and not findings of ultimate fact. Proposed Finding Number 24 is rejected in that it constitutes legal argument and conclusions of law rather than findings of ultimate fact. The first sentence of Proposed Finding Number 26 is rejected in that it constitutes a conclusion of law. The second sentence of Proposed Finding Number 26 is rejected in that it is repetitious and constitutes a conclusion of law. The Fourth sentence of Proposed Finding Number 26 is rejected in that it constitutes a conclusion of law. Proposed Finding Number 27 is rejected in that it constitutes a conclusion of law. Proposed Finding Number 28 is rejected in that it constitutes legal argument rather than a finding of ultimate fact. The last sentence of Proposed Finding Number 31 is rejected in that it constitutes legal argument and a conclusion of law. The Department's Proposed Findings of Fact are accepted except where they might specifically conflict with the Findings of the Hearing Officer's Report or where they may constitute conclusions of law.
Findings Of Fact In August of 1986, the Respondent, Randall G. Pass, was employed by the Department of Agriculture and Consumer Services in the Bureau of Weights and Measures as an agricultural specialist. His last day at work on this job was August 15, 1986. The Respondent did not report for work on the next regular work day, which was August 18, or on August 19 or on August 20, 1986, nor did he request any type of leave for August 18, 19 and 20, 1986. Neither the Respondent's supervisor nor the personnel department received any notification from the Respondent that he would not be at work on August 18, 19 and 20, 1986. On August 19, 1986, the Respondent's physician made a telephone call to the Chief of the Bureau of Weights and Measures, where the Respondent was employed, informing him that the Respondent had a drug problem, and inquiring what the State could do to assist the Respondent. There is no evidence that the Respondent was seen or treated by this physician on August 18, 19 or 20, 1986. In Exhibit 4, the Respondent's physician explains the Respondent's substance abuse problem. However, from this affidavit, it is found as a fact that the Respondent was not in inpatient care on August 18, 19 or 20, 1986, and that the physician had not told the Respondent not to work on August 18, 19 or 20, 1986. On August 25, 1986, the Department advised the Respondent by certified letter, return receipt requested, that his absence from work on August 18, 19 and 20, 1986, without authorized leave was deemed to be an abandonment of his position, and that his employment was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order terminating the employment of the Respondent, Randall G. Pass, from his position as an agricultural specialist with the Bureau of Weights and Measures in the Department of Agriculture and Consumer Services, for abandonment, pursuant to Rule 22-7.010(2), Florida Administrative Code. THIS RECOMMENDED ORDER entered on this February, 1987, in Tallahassee, Florida. WILLIAM B. THOMAS 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 this 10th day of February, 1987. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Room 512, Mayo Building Tallahassee, Florida 32399-0800 Roger L. D. Williams, Esquire Three Rivers Legal Services, Inc. 309 N.E. First Street Gainesville, Florida 32601 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether the application of Westinghouse Gateway Communities, Inc. for approval of the Area Master Plan 2 in the Gateway Development of Regional Impact in Lee County, Florida should be approved, approved with conditions, or denied.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Petitioner, Westinghouse Gateway Communities, Inc. (WGC), is a real estate developer that owns and operates a project known as the Gateway new community (Gateway) in Lee County, Florida. Gateway lies in central unincorporated Lee County, adjacent to I-75. It is located southwest of Lehigh Acres, immediately north of the Southwest Florida Regional Airport, and just east of the City of Fort Myers. The community is planned and approved for not more than 19,932 residential dwelling units, 816 acres of business, commercial and office uses and required support facilities on approximately 5,464 acres of land. To date, WGC has expended more than $38.9 million on the project, and more than 180 homes and 49,000 square feet of non-residential uses and a golf course country club are under construction or have been constructed. Petitioner, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of administering and enforcing Chapter 380, Florida Statutes, and the development of regional impact (DRI) programs pursuant to that chapter. Petitioner, Southwest Florida Regional Planning Council (SWFRPC), is the regional planning agency for the region in which Gateway is located. It is charged with various DRI-related responsibilities under chapter 380. Respondent, Lee County Board of County Commissioners (County), is the local government unit authorized by chapter 380 to issue local development orders for DRIs and to adopt land use and zoning policies under other legal authority. This proceeding involves three separate and timely appeals under Section 380.07, Florida Statutes (1989) from a development order rendered by the County on January 4, 1990. The development order pertains to the Gateway DRI. Many of the issues raised by the parties are factually and legally complex with little, if any, agency and judicial precedent to use as a guide. The issues are dealt with in separate portions of this Recommended Order. Finally, all parties presented fact and expert testimony on the various issues raised by the pleadings. As might be expected, the testimony is sharply conflicting in many respects. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. Background WGC purchased its Gateway acreage in 1982. At that time, it obtained an appraisal of the land showing a value of approximately $5,000 per acre, based on the highest and best use of the then agriculturally-zoned property for residential development. According to WGC, it purchased the land because of its single ownership, location in the path of growth, surrounding transportation network, and the adjacent Southwest Florida Regional Airport which was then under construction. At present, WGC owns approximately one-half of the Gateway land and holds the balance under options with a takedown rate of approximately 350 acres per year. (Schmoyer, Tr. 131-32; Respondent's Exhibit 3; Paragraph 2, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Koste, Tr. 607-08, 615-16). Prior to 1984, the Gateway property was zoned agricultural. In 1984, the County adopted the 1984 Lee County Comprehensive Plan pursuant to Chapter 163, Florida Statutes. Under the plan, public expenditures for roads and other infrastructure were targeted to an Urban Services Area, which the County's local planning agency recommended stop at Interstate 75. Gateway was located east of the Urban Services Area and beyond I-75 and designated rural under the local planning agency's plan. Although WGC desired to have Gateway included in the Urban Services Area, the local planning agency did not change its recommendation to the County. WGC accordingly proposed a "New Community" land use category in the comprehensive plan. (Spikowski, Tr. 1781; Bigelow, Tr. 1709-1712). In 1984 WGC developed the "New Community" land use concept, drafted the language, and submitted the proposal to the County. Among other things, WGC represented to the County that: Such lands are capable of being planned and developed as a cohesive unit in order to be free-standing economic units which do not impose negative fiscal impacts on the County. We've requested a non-urban services district designation. Thus, we have not affected the efficiency of the urban services area. We are not going to cost the County anything. This will not add to the cost of the plan. (Paragraphs 9 and 10, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 16 and 517). In proposing the new community designation, WGC sought to establish a category that would work with the location and the proposed plan of development of the Gateway DRI, while also fulfilling the 1984 comprehensive plan requirements. On December 21, 1984, the County adopted the new community designation proposed by WGC with only minor changes in the 1984 comprehensive plan. The Gateway property is designated as a new community in accordance with Section III, Land Use Plan Element of the 1984 comprehensive plan. When the new community designation was adopted by the County, the County included such statements as follows: New Community areas will be developed as free-standing economic units and will not impose negative fiscal impacts on the County. The land shall be developed as a free- standing community offering a complete range of land uses, e.g., a full mix of housing types for a range of household incomes... Off-site impacts shall be mitigated. (Paragraphs 11-14, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 10 and 28). The new community designation was specifically created for Gateway and agreed to because WGC indicated to the County that it would provide its own infrastructure, not cost the County anything, and be a freestanding economic unit. In light of the County's inability at that time to finance the infrastructure outside urban areas, it agreed to allow urban densities in non- urban areas only if the developer privately provided infrastructure. The new community designation has benefited WGC by increasing the valuation of the property. While the 1982 appraisal valued the property at $5,000 per acre, seven years later WGC requested an appraised value of $75,000 per acre for a land donation. Finally, it is noted that the Gateway lands are the only lands designated as new community within the entire county. (Spikowski, Tr. 1781-83; 1785-88; Respondent's Exhibits 3, 239, and 517; Nicholas, Tr. 3372-78; Paragraphs 15, 16, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). The 1985 DRI Order The WGC development known as Gateway is a development of regional impact (DRI) pursuant to the provisions of Section 380.06, Florida Statutes. A DRI is a development which, because of "its character, magnitude, or location," substantially affects the health, safety and welfare of citizens of more than one county. Gateway's ultimate buildout development of 19,932 residential units and 816 acres of commercial/office uses is the equivalent of 20 DRIs, based on commercial acreage alone. Indeed, Gateway is the second largest DRI in Lee County history. (Paragraph 26, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Starnes, Tr. 2414; Gibbs, Tr. 2117-18). An application for development approval for the Gateway DRI was determined to be sufficient under the provisions of Section 380.06, Florida Statutes (Supp. 1984) by SWFRPC on August 17, 1984. SWFRPC's report and recommendations were issued on October 18, 1984, recommending that the Gateway DRI be approved subject to certain enumerated conditions. (Paragraphs 28 and 29, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibit 22). In the DRI process, the regional planning council takes a lead coordination role in the review of a DRI. According to SWFRPC's executive director, SWFRPC staff recommended only conceptual approval of the Gateway DRI at the outset in 1984 under a process in Section 380.06, Florida Statutes, known as the Application for Master Development Approval (AMDA) process because the proposed 40-year buildout of Gateway exceeded local planning horizons and the proposed Gateway DRI was very large. Moreover, it is impossible to accurately plan a development over twenty years or more. SWFRPC staff worked with WGC to find a way to allow the development to move forward with certain planning and analysis delayed. The staff concerns were eventually resolved when WGC proposed phased or incremental review to provide for more specific analysis of Gateway as portions were proposed for development and to provide for a continued review role by the regional planning council. (Daltry, Tr. 2626, 2628; Burr, Tr. 2691- 92, 2701). In 1984 and early 1985 County planning staff also advocated the master application review approval and found the application information inadequate to analyze the project's impacts 40 years into the future. Staff indicated that the Gateway DRI application raised concerns about whether infrastructure needs would be mitigated in later phases. (Gibbs, Tr. 2119-22; Respondent's Exhibits 23, 37, 45 and 46). On May 31, 1985, the County approved, with conditions, restrictions and limitations, WGC's illustrative concept plan in the Gateway DRI Development Order #1-8384-36 (1985 DO). The illustrative concept was a delineation of the land use program specified in the area master plan (AMP) development program in the 1985 DO. The County granted approval for WGC to develop not more than 19,932 residential dwelling units, 816 acres of business/commercial/office uses, and required support facilities in accordance with the AMP development program set forth in Exhibit C to the 1985 DO and subject to certain conditions, limitations, and restrictions. Gateway included a total of approximately 5,319 acres and was proposed to be developed in nine areas over a 40-year buildout. (Paragraphs 33 and 35, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 45, 46, 63, and 809). On May 31, 1990, the County also adopted Planned Unit Development (PUD) Ordinance No. 85-15 to implement the Gateway DRI in terms of local procedures. (Respondent's Exhibit 62; Gibbs, Tr. 2118). The 1985 DO created an area master plan (AMP) process to determine the "precise location of land uses within each area," or the "precise location and character of land uses within the DRI," "in order to logically and rationally coordinate the phasing of development with available facilities." However, the 1985 DO did not assess the particular impacts of development of any area within Gateway or the mitigation WGC would be required to pay for them. (Respondent's Exhibits 63 and 809). Under the 1985 DO, no development within Gateway could occur without submission to the County of an AMP for the area sought to be developed. This prohibition was in accordance with a provision of the DO which provided that "Prior to carrying out any development of the parcel proposed for development, WGC shall prepare and submit to Lee County an Area Master Plan." The PUD ordinance adopted for WGC on May 31, 1985, and which is referred to in finding of fact 16, provided a process for further refinements of each AMP and also precluded commencement of "any development or construction within GATEWAY" without submission of an AMP to the County for review and approval. (Respondent's Exhibits 62, 63, 809 and 810). Under the 1985 DO, information in each AMP application must address drainage, conservation, transportation impact, wetlands, potable water, sewer, parks and recreation, schools, threatened and endangered species and fire protection, among other issues. The County must also determine whether to approve, approve with conditions, or deny the AMP according to the following standards for determination as to the extent to which the proposed AMP is: Consistent with the land uses authorized by this Development Order and the general distribution of uses set forth in paragraph 1 of this Order; Consistent with the PUD Ordinance #85-15 and the Lee County Comprehensive Plan; Consistent with sound land planning principles; Served, or will be served, by adequate public facilities, including: Water, Sewer, Roads, Surface Water Management, Law Enforcement, Fire Protection, Schools, Parks and Recreation. Consistent with the specific conditions set forth in this Development Order.. Finally, as part of its determination, the County must make a determination of whether the AMP is a "substantial deviation" pursuant to then Subsection 380.06(17), Florida Statutes, now Subsection 380.06(19), Florida Statutes. After approval, the AMP is the "controlling instrument" concerning the "location, character and magnitude of specific uses" within that area of the Gateway DRI. (Respondent's Exhibits 63 and 809). The 1985 DO further highlights the importance of the AMP process and the fact that issues would be subject to later adopted regulations for mitigation of impacts identified in that process in the following specific subject areas: Drainage. WGC must comply with every applicable rule, regulation, or requirement of the South Florida Water Management District (SFWMD) prior to any development of "any portion of the Gateway DRI". Energy. WGC must provide a bicycle/pedestrian system consistent with Lee County requirements. Transportation. WGC must submit a traffic impact statement (TIS) with each AMP application and approval or approval with conditions of Gateway phases is dependent on the results of the TIS and review and recommendations of various agencies, including SWFRPC. WGC must agree to pay for its "proportionate share" of needed road improvements as a "condition for area master plan approval." Water Supply and Sewer Service. During each AMP review, WGC must document adequate water supply and sewer service and comply with all SFWMD and Florida Department of Environmental Regulation (DER) regulations prior to development. Wetlands. WGC must delineate jurisdictional wetlands and submit plans for mitigation of impacted wetlands during the AMP process and comply with all applicable SFWMD and DER regulations. Education. School sites will be located during the AMP process. Protective Services. Sites for fire protection, emergency medical services and law enforcement will be dedicated during the AMP process. Each AMP application must demonstrate availability of fire protection services. Fiscal Impact. WGC must demonstrate with each AMP submittal that Gateway will not have a negative fiscal impact on the County. Parks. Parks will be located during the AMP process. Housing. WGC must cause the provision of a "range of housing types to be addressed" during AMP review. (Respondent's Exhibits 63 and 809). The 1985 DO also provides that the approval is further limited because it does not "obviate the duty of the applicant to comply with all other applicable local or state permitting procedures." (Respondent's Exhibits 63 and 809). The SWFRPC planning director agreed that (a) the 1985 DO did not confer blanket approval to develop the Gateway DRI, (b) information in the 1984 DRI application by Gateway did not satisfy regulatory requirements for DRI review of area 2, and (c) the original 1985 DO does not permit WGC to develop area 2 of the DRI due to missing details. In particular, the original application was not sufficient to fully address transportation concerns for every phase. (Burr, Tr. 2695-96, 2705-05). County planning staff viewed the 1985 DO as atypical, because it did not confer any authority to begin construction without further review under the AMP process. In essence, the County deferred impact mitigation to the AMP process because there was no 40-year impact assessment. The 1985 DO did not establish the specific development conditions for each area within Gateway. (Gibbs, Tr. 2118-20, 2173; Spikowski, Tr. 1789). Doctor Earl M. Starnes, the County's outside planning expert and the first state planning director, found that the 1985 DO did not address specific impacts in detail or by time frame, deferring those issues. Instead, it established a broad scheme for the location of future land uses and their intensities, subject to detailed AMP review for assessment and mitigation of impacts. The 1985 DO gave WGC no right to build future areas before availability and adequacy of public facilities and services and required mitigation were determined, but instead established a mechanism to make such determinations. (Starnes, Tr. 2415, 2429-30, 2509-10). WGC's president and chief operating officer indicated that the original DRI application addressed all issues, but provided for traffic mitigation on a more current basis. In a letter written to the County in March 1985 before approval of the DO, he stated that the AMP process offered continual County review of impacts. Under the 1985 DO, he agreed that WGC needed AMP approval and development orders before construction can occur. By stating that the 1985 DO authorized a "fully approved" DRI for the entire community, he meant it authorized a conceptual plan, as opposed to final approval of all of Gateway. (Koste, Tr. 616-23, 631, 646; Respondent's Exhibit 52). AMP Review Process The AMP process is similar but not identical to the application for master development approval (AMDA) process established in Subsection 380.06(21), Florida Statutes, and Rule 9J-2.028, Florida Administrative Code, in that both identify information needed for further review of later development phases or increments, identify the issues subject to further review and issues that could result in denial, and provide for review by substantial deviation procedures. The ADMA process was designed to deal with large projects with long buildouts and complex issues. The important parts of the AMDA process were addressed for the Gateway DRI by providing for the AMP process. According to the SWFRPC's executive director, who participated in the Gateway DRI review and approval process, the 1985 DO essentially gave WGC the right to submit more detailed applications and to continue to participate in the process. Future AMP applications and reviews were to address and resolve how the approved dwelling units could be supported by infrastructure, what mitigation was needed for impacts and the timing of that mitigation. This is consistent with SWFRPC's desire to limit the original approval to what was currently planned for roads and public services. (Daltry, Tr. 2660-61, 2627, 2641; Respondent's Exhibit 809). The DCA planner who reviewed the 1985 DO concurred that the AMDA and AMP processes were similar, stating: "This project is not a master incremental DRI, but it will be reviewed in that fashion." (Respondent's Exhibit 67). The County's expert witness Starnes also found the AMP process similar to the AMDA process, which was developed while he was state planning director. Under both processes, the developer was allowed to proceed subject to assurances that infrastructure would be addressed later. Both processes look first at future land uses and intensities and then refine them later to coordinate with infrastructure timing issues based on details that cannot be addressed over a 40-year period. An example would be in the transportation area where WGC submitted a DRI application in 1984 addressing that issue, but the County wanted to reassess the mitigation to relate to the development and proportionate share payment due in the AMP time frame proposed. (Starnes, Tr. 2431-37, 2464-65, 2467). According to the County's acting zoning director and the planner principally responsible for County review of the Gateway 2 application, the AMP process is similar to the AMDA or phased DRI process in that a long list of issues must be addressed in an AMP application. The acting zoning director also established that the AMP process is not a typical Lee County review or a strictly local review. This was further confirmed by witness Starnes, who concluded that the AMP review was not a local review process in general. (Gibbs, Tr. 2119-22; Starnes, Tr. 2437-38). The County's understanding and intent for the AMP approval process was expressed in an April 26, 1985, letter from an assistant county attorney and county director of development review to a member of the County Commission: Some concerns were raised about fire protection services and proper funding for water, sewer, police, EMS and other services. The L. P. A. was very concerned about Westinghouse Gateway Communities meeting their financial obligations. The comprehensive plan requires that the "New Community areas will be developed as free- standing economic units and will not impose negative fiscal impacts on the County." The L. P. A. required WGC to come back through the L. P. A. with each Area Master Plan to insure that when the specifics were known, the impacts of those specifics would be addressed in every respect, including financial. If there was any shortfall utilizing the funding mechanisms provided for, WGC would have to make up its financial shortages. (Respondent's Exhibit 57). WGC's intent and understanding of the AMP review process was expressed in the following: A letter dated March 22, 1985, to the County's director of the division of county development in which WGC acknowledged that: "The Board of County Commissioners are the ultimate decision-makers with respect to an Area Master Plan." A letter dated March 28, 1985, to the chairman of the Board of County Commissioners dated March 28, 1985, in which WGC represented that the DRI development order and PUD ordinance scheduled for adoption on April 19, 1985: "... will represent a beginning not an end, of an approval process which will involve many governmental agencies on an ongoing basis over the projected life of the [40- year] development period. The Area Master Plan approval process (phase) requires that each Area Master Plan be approved by the Lee County staff ... the Local Planning Agency, and the Board of County Commissioners. This process offers several advantages to both the developer and the County. The developer obtained a Development Order for the entire property and a set of rules to live by which will allow it to make the business decisions necessary to begin development. The County will be able, through the Area Master Plan process, to continually review impacts of the Gateway Community and react accordingly during the Area Master Plan approval reviews. We believe the County staff and WGC have developed a proper program for a larger scale development to gain approval while allowing the County a continuing opportunity to thoroughly review the land uses and impacts of the community. (Emphasis added) (Respondent's Exhibits 51, 52, 54; paragraph 38, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). Area 1 Development Order The County amended the 1985 DO on May 21, 1986, and approved with conditions the Area 1 Master Plan. That amendment authorized development of two hundred and ten acres of office/commercial/industrial uses and 1,850 residential dwelling units. Under the transportation-related terms and conditions of the Area 1 DO: WGC is required to submit a new Traffic Impact Statement and to mitigate additional adverse traffic impacts where approval is requested for the next AMP. (Emphasis added) WGC is required to pay a proportionate share for traffic mitigation of $3.5 million (1985 dollars). To satisfy that requirement WGC must pay road impact fees (estimated at $2.8 million in 1985 dollars) in effect at the time building permits are issued for all residential and non-residential development in Area 1. In addition, WGC agreed to construct the four-lane extension of Daniels Road at no cost to Lee County. However, WGC is not eligible for credits against road impact fees for the construction and right- of-way dedication associated with the construction of the four-lane extension of Daniels Road during Area 1 and subsequent areas of Gateway. WGC may claim a credit against future road impact fees in the later phases of Area 1 or subsequent phases of Gateway if WGC's actual costs for the construction of the four-lane extension exceed $700,000. WGC is also required to pay a proportionate share of the cost of the Southwest Florida Regional Airport (SWFRA) and the extension of Daniels Road; and to pay 70% of the cost of an at-grade intersection at Daniels Road and SWFRA entrance, if the design study indicates such an improvement is necessary. WGC's payment of a proportionate share for at-grade improvements are to be in addition to payments of road impact fees and other obligations specified in the amendment. WGC's payment of a proportionate share of the cost of at-grade improvements at the Daniels Road extension and the SWFRA entrance intersection will not reduce WGC's obligation for proportionate share contribution for future improvements needed at this intersection, but the contribution of the $125,000 may be credited against WGC's obligation for future proportionate share contributions for further improvements at that intersection. However, WGC is not eligible for credits against road impact fees during Area 1 or subsequent areas of Gateway for any proportionate share payments for at- grade improvements at that intersection. WGC's president acknowledges that Area 1 is the only area in which WGC has approval to construct. After approval of AMP 1, WGC commenced development activities and has done so continuously since that time. (Respondent Exhibit 107; Koste, Tr. 651). The County stated in the Area 1 DO that its highest priority for expenditure of road impact fees collected from Gateway Area 1 and other developments along the Daniels Road corridor was for road improvements necessary to mitigate traffic impacts along Daniels Road. (Respondent's Exhibit 107). Area 2 Application On January 17, 1989, WGC submitted a notification of proposed change to a previously approved DRI, the state's standard substantial deviation determination request, which included related DO amendments. This request indicated specifically that "Approval of the Second Area Master Plan" was among "PROPOSED CHANGES-TO THE APPROVED DRI." The request stated that the complete AMP application was attached. (Respondent's Exhibit 229; Montgomery, Tr. 419; Gibbs, Tr. 2125-26). The Area 2 application was submitted February 1, 1989. In the same time frame, WGC's attorney indicated that the new community designation required assurance that adequate public facilities would exist at the time of demand and that the issues for Area 2 review included determination of the AMP 2 proposal's consistency with "the Lee County Comprehensive Plan" and sound land planning principles, as well as availability of adequate infrastructure. After a meeting with County staff, WGC waived the time frame for initial staff review. (Respondent's Exhibit 239; Montgomery, Tr. 419; Gibbs, Tr. 2127-28, 2224). While the 1985 DO anticipated that Gateway would consist of nine areas developed over a 40-year period, the Area 2 Master Plan submitted in 1989 actually included geographical Areas 2 through 5 of the original nine areas. As a result, the Area 2 application also included assessment of Area 1 in the transportation portion of the application in order to look at cumulative traffic impacts. In the Area 2 application, WGC requested approval of development of 2,481 total acres including 5,244 residential dwelling units and approximately 504 acres of non-residential office/commercial uses, with non-residential square footage initially limited to 1,670,000 square feet of office and 177,000 square feet of commercial use. The buildout period proposed by WGC for Area 2 was the year 2000. (Gibbs, Tr. 2130-31, 2220; WGC Exhibit 6; Respondent's Exhibit 237). A substantial deviation determination by the County was required for evaluation of the Area 2 application. The substantial deviation process reviews new, additional or previously unreviewed regional impacts. While the 1985 DO allowed review of more than one area at a time, submission of original Areas 2-5 as the Area 2 application resulted in half the total property coming in for review at one time and an area boundary modification in violation of the spirit and intent of the 1985 DO. This change also suggested a potential shifting of development density from the southern portions of Gateway near Daniels Road and other development toward the environmentally sensitive Six-Mile Cypress area. WGC also requested amendments to and changes in the 1985 DO, provided the County with public hearing notices treating the Area 2 proposal as a DO amendment and a substantial deviation request under Subsection 380.06(19), Florida Statutes, and proposed an Area 2 development order as part of amendments to the 1985 DO, despite protestations from WGC witnesses at final hearing that DO amendments were not needed. Under standard DRI practice, submission of a substantial deviation notice like the one WGC submitted in January 1989 calls for an amendment to the original DO. (Gibbs, Tr. 2132-42, 2255-56, 2181-83; Respondent's Exhibits 220 and 302; Montgomery, Tr. 505-06, 509; WGC Exhibit 155). Based on statutory criteria that consider new or additional or unreviewed regional impacts to be substantial deviations, the County's DRI reviewer concluded that the AMP 2 proposal would constitute a substantial deviation. However, the County ultimately approved a final Area 2 development order on December 20, 1989, that found the proposal would not be a substantial deviation "if subject to the conditions enumerated herein." The formal order itself was rendered on January 4, 1990. The DO approved the amount of development requested by WGC through the year 2000 subject to numerous detailed conditions. It is from those conditions that these appeals ensued. Finally, on September 5, 1990, the County receded from a number of conditions imposed in the January 4, 1990 order. This action is formalized in respondent's exhibit 742. (Gibbs, Tr. 2205-06; Respondent's Exhibits 606 and 742; WGC Exhibit 1). Applicability of Post-1985 Regulations to the Project A key disputed issue was whether various regulatory requirements adopted after the May 1985 DO were applicable to the Area 2 proposal or whether it was vested by virtue of the DO against their application. Such later-adopted regulations included the 1989 Lee County Comprehensive Plan adopted under Chapter 163, Florida Statutes, general County ordinances, and state and local "concurrency" regulations requiring development to meet level of service standards for public infrastructure and services concurrently with actual development. According to the County's deputy director of the department of community development, its acting zoning director and the assistant county attorney in charge of the Gateway 2 review in 1989, only the Gateway Area 1 development may have vested rights against concurrency and other regulations adopted after that DO was approved in 1986. Further, from his expert planning perspective, Dr. Starnes concluded that the 1985 DRI DO did not protect Gateway from applicability of new regulations for issues subject to future assessment, such as transportation and housing. Doctor Starnes also concluded that to the extent the DO approved activities, such as the establishment of conceptual boundaries, those things are protected under DRI vesting provisions of chapter 163, but activities that were not approved or assessed and mitigated are open to further regulation. (Spikowski, Tr. 1870-71; Gibbs, Tr. 2200; Ciccarone, Tr. 2850, 2860-61; Starnes, Tr. 2444-46, 2474; Respondent's Exhibits 199 and 402). From a local regulation perspective, the County's acting zoning director indicated that the proposed development submitted for approval in the County, including a Gateway AMP proposal, is evaluated under the County comprehensive plan in effect at submission. This approach is appropriate for review of AMP 2 for several reasons. First, the 1985 DO contains no language indicating that other County ordinances would not apply. Secondly, WGC was only entitled to rely on express conditions of the 1985 DO. Third, under the Gateway PUD ordinance, County ordinances and regulations should apply unless pre-empted by the provisions of that ordinance. Fourth, the 1985 DO requires that future AMPs satisfy "sound land planning principles," which are included in the 1989 comprehensive plan. Finally, it is illogical to assume that the single 1984 Gateway DO would apply over 40 years of development, with the comprehensive plan changing throughout that period. It is noted that other Lee County DRIs that may be exempt from later adopted comprehensive plan amendments either contained specific mitigation requirements, which the 1985 Gateway did not, or contained specific DRI DO conditions allowing election of one or another plan. (Gibbs, Tr. 2123-24, 2161-64, 2166-2167, 2194-95, 2204, 2272-73) At hearing, one of WGC's current attorneys, who was assistant county attorney at the time the 1985 DO was approved, testified she advised WGC that the 1985 DO was vested and that only the 1984 comprehensive plan applied. However, because the County staff took the position that both the 1984 and 1989 comprehensive plans applied, WGC instructed her to cooperate with the County on that basis. The former assistant county attorney also took the position that except for the PUD ordinance, no other development ordinance would apply to Gateway. She further interpreted condition 58 of the 1985 DO, which states that the DO does not obviate WGC's duty "to comply with all other applicable local or state permitting procedures," to mean local building or state environmental permits. However, the same witness' testimony was contradicted by her own prior statements and other testimony given at hearing. For example, while employed as assistant county attorney, she authored documents indicating that Gateway would need to be consistent with other laws if areas of regulation were not covered in the DRI DO or PUD ordinance and that Gateway would be subject to continuing review. She also told County staff in April 1989 that Gateway should be under the 1984 comprehensive plan for one purpose, but under the 1989 plan for another purpose if it were to Gateway's advantage, such as for transportation conditions. The witness also confirmed that Gateway had sought to apply the 1989 plan to avoid disadvantage to Gateway. The witness further conceded that the 1985 DO standards for AMP approval include consistency with the "Lee County Comprehensive Plan," not the "Lee Plan" as the 1984 Plan was called, and consistency with sound land planning principles, on which she placed no temporal limitation. (Montgomery, Tr. 408, 482-84, 488, 490-91, 495-96, 539; Gibbs, Tr. 2146-47, 2203-04,). Transportation Issues Generally An Overview The 1985 DO on appeal determined that, based on its then current analysis, the transportation proportionate share for Gateway Areas 1 and 2 through the year 2000 was approximately $26 million, plus costs for additional needed road improvements not yet identified. It required WGC to pay $15 million of that amount within one year and required a reanalysis after five years of the appropriate additional proportionate share. (Respondent's Exhibit 606). The principal transportation issues in these appeals are how much WGC should pay for mitigation of its Areas 1 and 2 traffic impacts through the year 2000 and how that amount should be determined. Based upon the more credible and persuasive testimony, it is found that a transportation proportionate share contribution of $21,367,457, plus approximately $8.6 million anticipated in future costs, is the appropriate amount of mitigation. It is also found that identification of impacts through a widely used transportation computer model and calculation of proportionate share by publicly accepted mathematical formulas are a standard DRI methodology appropriate for use by the County. Alternate DRI mitigation methodologies proposed by WGC are rejected as contrary to accepted public policy, precedent and professional practice. It is further found that transportation mitigation consisting of a DRI proportionate share payment may be required in advance of development by Gateway under standard DRI policy. Advance payment would secure WGC certain development and transportation concurrency rights based upon the County's evidence at hearing. WGC's Expectations as to Traffic Mitigation When it purchased the Gateway property in 1982, WGC recognized that funding mechanisms for traffic improvements were evolving and that it would be required to participate in the funding of transportation improvements on the public road network surrounding the proposed project. However, WGC did not study the costs of such funding participation as part of its acquisition analysis because the answers would depend on when and where WGC commenced development on its property. Ultimately, development of Gateway commenced toward the southern end of the project nearest the new regional airport and Daniels Road, which WGC considered a "growth corridor". (Paragraph 5, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Koste, Tr. 2000-01). Internal WGC meeting notes dated December 3, 1982, reveal that WCG recognized even then that traffic impacts would be significant for Gateway. With respect to Daniels Road, they contained statements such as "capacity captured by airport" and "Need to capture capacity any way we can." With respect to Colonial Boulevard, the notes contained statements such as "do whatever it takes to get it built --even help pay for it" and "potentially serious capacity problems". With respect to traffic levels of service, they stated "Need educational process to get level of service D." With respect to development phasing, they stated "Colonial or Daniels 1st? Go to north if can capture capacity on Daniels." WGC's then director of planning and permitting, who wrote the notes, testified at hearing that the idea of "capturing capacity" was not an important objective or main idea to Gateway in the sense that "if ... you are there first ... there would be adequate capacity on the road to handle the levels of traffic." Rather, he testified that "Westinghouse was looking to make sure that the roads would not be congested because that is not a good marketing for a community." He conceded that, from a marketing standpoint, free-flowing roads in the vicinity are a "benefit to any development." (Respondent's Exhibit 4; Widmer, Tr. 1733). One WGC reviewer of a draft of WGC's original DRI application for development approval (ADA) noted in a June 13, 1983, memorandum to WGC's president: After the ADA is submitted, the probability of getting the County to participate or to build (Daniels Road) on their own will be negligible. To offer to make improvements to County roads is foolhardy. We will be negotiating from a very weak position. Why not let them tell us what they expect? (Respondent's Exhibit 9) In its evaluation of the transportation section of the original Gateway ADA filed in early 1984, SWFRPC estimated that the DRI would require: two additional lanes on Daniels Road from U.S. 82 to the airport entrance by 1988; two further lanes on Daniels Road from U.S. 41 to the airport entrance by 2010; interchange modifications at I-75 and the airport entrance from 1997 through 2015; two lanes on Daniels Road from the airport entrance to S.R. 82 by 1985; two further lanes on Daniels Road from the airport entrance to S.R. 82 by 2000; additional lanes and access controls on Daniels Road between the airport and Gateway entrances by 2010; four lanes on Colonial Boulevard from I-75 to S.R. 82 by 1988; two additional lanes on Colonial Boulevard from Metro Parkway to I-75 by 2010, with access control by 2020; two further lanes on Colonial Boulevard from I-75 to the Gateway entrance by 2020; and control devices and auxiliary lanes at the junction of S.R. 82 and Colonial Boulevard by 1988 and 2020, respectively. The SWFRPC evaluation of WGC's ADA rejected WGC's assertion that certain improvements would not be needed by Gateway and advised that "planned improvements on several regional roadways must be pushed forward to accommodate Gateway ..." In its 40-year application, WGC had committed to direct funding of internal roads, intersection improvements at entrances, right-of-way donations for roads along its boundaries, 50% participation in construction of Daniels Road from the airport to S.R. 82 and of a Colonial Boulevard extension to the DRI. (Respondent's Exhibit 22) On January 30, 1985, approximately four months before adoption of the original Gateway development order, the president of WGC's corporate parent wrote WGC's president with respect to the development order as it then was proposed: The one area that is rather ambiguous is in the area of the road construction (transportation).... We commit to build two lanes here, two lanes, there.... (Respondent's Exhibit 40) On April 15, 1985, or approximately six weeks before adoption of the 1985 DO, WGC's president wrote the corporate parent's president and identified, among other "liabilities", the following feature of the proposed DO and PUD: Regional transportation improvements "open- ended" -- to be imposed at each phase based on periodic studies of actual and projected impacts. At hearing, WGC's president testified that there were changes in the final documents "but the areas (of liability) as far as I know, were all still included, and I know none of them went away." In his deposition received in evidence, he testified that with respect to the AMP process, which was adopted: The mitigation costs are not determined up front, they are determined as you go through the process, and should we ever conclude what the costs will be for Area Master Plan 2, that will only be as good as Area Master Plan 2 and Area Master Plan 1 together. Area Master Plan 3 remains a question mark. By not appealing the original DO, WGC accepted the deferral of impact mitigation determinations until each area master plan review. (Respondent's Exhibit 54; Koste, Tr. 621, 634-35, 2002-03; Paragraph 38c, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). Before filing an application for approval of AMP 1, WGC's vice president informed the WGC staff that potential transportation issues included "how proportionate share would be calculated, what would be the appropriate timing of the road improvements and receiving due credit ... with regard to impact fees for advanced payment if there was a question of timing of a road improvement." (Schmoyer, Tr. 135-36, Respondent's Exhibit 69). During the review of Gateway AMP 1, both DCA and the County took issue with WGC's assumption that the widening of Daniels Road to four and six lanes and the extension of Daniels Road to S.R. 82 would be available when needed because the improvements were "programmed." In response, WGC recognized that the improvements were not "committed" and stated that they were "necessary to support all area developments" and "a function not only of Gateway Area 1 development but also other area developments in the Daniels Road Corridor." (Respondent's Exhibits 77, 78, and 81) On April 3, 1986, while AMP 1 was still under review, WGC's traffic consultant for AMP 1 wrote WGC's director of planning and permitting as follows: As you requested, we have prepared an estimate of the likely roadway network in the Gateway Study Area at buildout of Westinghouse Gateway Communities. The future Study Area roadway network will be dependent not only on Gateway development but also other area development. Improvements of particular importance include the widening of Daniels Road to six lanes from west of US 41 to SR 82, the extension and widening of Colonial Boulevard to six lanes from west of US 41 to SR 82, a new east/west arterial (north of Daniels Road) from US 41 to SR 82, an interchange with I-75 at the new east/west arterial, and the Airport Flyover at Daniels Road. That portion of the new east/west arterial from Palomino Lane to the Six Mile Parkway, due to environmental permitting problems, may be very difficult to construct. In fact, the Development Order for Gateway (1-8384-36, Condition 17) states that access to Gateway Area 9 "... shall not be permitted through, over or under the slough." Nevertheless, as east/west access along Daniels Road becomes more difficult in the future due to area developments, the County in combination with area developers may consider alternative east/west access routes. Any alternative east/west in the area would require bridging the Six Mile Cypress. Without doing more detailed traffic studies, it is difficult to estimate with any degree of certainty the roadway requirements for Gateway Area 2. Those roadway requirements will be dependent on the level of development anticipated in Area 2 (and in particular the retail/office component), other area developments, and roadway improvements undertaken by the County, State and area developers. At this time, we would anticipate the following Study Area roadway improvements be considered during Area 2. Daniels Road widened to six lanes divided from the Airport Entrance to Gateway Boulevard, four lanes divided from Gateway Boulevard to SR 82 and six lanes divided from I-75 to US 41. Colonial Boulevard extended as four lanes divided from Gateway Boulevard to SR 82. East/West Arterial extended as four lanes divided from Gateway Boulevard to SR 82. East/West Arterial extended as four lanes divided from Gateway Boulevard to Treeline Road (and possibly to I-75 with an interchange at I-75). Treeline Road widened to four lanes divided from Daniels Road to the East/West Arterial. North/south connection from Gateway to Colonial Boulevard (four lane divided). Airport Entrance/Daniels Road flyover. It is very likely that Area 2 will be treated in the same manner as Area 1. That is Area 2 would be assessed a proportionate share of all roadway improvements with impact fees representing a portion of that proportionate share. At some time in the future, beyond Area 2, it would be anticipated that impact fee payments would represent the total proportionate share. (Emphasis added) (Respondent's Exhibit 97; Widmer, Tr. 1742-44). WGC's knowledge and understanding of the transportation conditions of the May 1986 Area 1 DO were reflected in an August 6, 1986, internal memorandum in which WGC's director of planning and permitting stated that: If a road improvement is needed at some future point which jeopardizes our continuance of development, there is always the option to make the road improvement ourselves (within reason) and receive credits against impact fees, which is provided for in our DO. (Paragraph 56b, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). A WGC staff member's notes of a November 16, 1988 internal strategy meeting concerning the pre-AMP 2 application reflects the following strategic considerations, among others: DRI proportionate share number should be brought in line with impact fee number; Consider pipelining impact fee money to County for construction of needed roads -- this will help AMP approval with County, RPC and DCA; Neale (Montgomery) will determine dollars to pipeline and where on Daniels Road (dollars needed for four-laning and east of I-75). At that time, the staff member recognized the impact fees and a calculated proportionate share could differ. (Anderson, Tr. 2018-31; Respondent's Exhibit 213). In a November 23, 1988 letter to Chris Knotts, U. S. Army Corps of Engineers, concerning the Area 2 mitigation, a WGC staff member wrote: A development designated as `New Community' must be able to obtain a complete mixture of land uses, in order to be economically self-sufficient (as possible). This type of development is an appropriate response in order to refrain from contributing to negative fiscal impacts to Lee County, which is already suffering from inadequate infrastructure. This lack of infrastructure ranges from roads operating at acceptable levels of service to proper sewer and water distribution lines and treatment facilities. (Respondent's Exhibit 217) County's Road Financing Efforts Lee County is one of the fastest growing metropolitan areas in the United States. The County seeks to accommodate rather than limit growth by devising funding mechanisms to meet infrastructure needs. For transportation funding, the County has relied on user fees, gas taxes, impact fees, state road funds and assessments against benefited individuals or properties, including DRI exactions. The County has adopted every tax within its authority to fund roads, including all optional gas taxes, and was one of the first counties in the State to adopt road impact fees. (Nicholas, Tr. 3364-70, 3440-41; Spikowski, Tr. 1790- 91; Respondent's Exhibit 733) Unmet road needs in Lee County are overwhelming. According to SWFRPC's executive director, traffic problems in the four Southwest Florida coastal counties, including Lee, are going to be as bad as Dade and Broward Counties in southeast Florida. Therefore, the goal of the DRI planning process is to have DRIs charged for the full impact of their traffic. (Daltry, Tr. 2640). According to a former member of the Board of County Commissioners from 1986-1990, the County's philosophy concerning new development was that infrastructure needs should be met by the public and private sectors collectively. The County directed its administrator to move the County to "get about the business of putting infrastructure in the ground." (Bigelow, Tr. 1713- 15; Segal-George, Tr. 1182-84). The County is continuing its efforts to finance road needs. It is seeking approval of a one-cent optional sales tax for roads by public referendum in the spring of 1991 and lobbying for state approval of a 1% real estate transfer tax for road financing. In addition, the County has had prepared a major report identifying major options for future road funding in the County. (Segal-George, Tr. 1189-90; Spikowski, Tr. 1942-43; Respondent's Exhibit 733). Mitigation for Road Impacts of Areas 1 and 2 Requirements of 1985 DO The 1985 DO required submission of a Traffic Impact Statement (TIS) by WGC for each area master plan. After submission of the TIS, the 1985 DO required the county engineer to determine off-site road and intersection improvements required due to that Gateway area to maintain a Level of Service D during the peak season and to determine Gateway's proportionate share of the cost of needed improvements, which could be 100%. As a condition for AMP approval, WGC was required to enter into an agreement with the County concerning how and when payments would be made. (Respondent's Exhibits 63 and 809). By mutual acquiescence of the County and WGC, key features of the DO requirements were not followed during the processing of WGC's application for AMP 2. The county engineer played essentially no role in the required determinations. The county administrator delegated determination of a proportionate share jointly to the County's department of community development and department of transportation and engineering, but final decision-making authority on that subject was left to the Board of County Commissioners. Generally, the department of community development assures that mitigation imposed is appropriate, adequate and consistent with other DRIs and coordinates its activities with the department of transportation and engineering. There was no agreement ever entered by WGC and the County regarding proportionate share, as required by the 1985 DO as a condition for AMP approval. (Brown, Tr. 2521; M. Swanson, Tr. 1657-58, 1683-84; Segal-George, Tr. 1192, 1196). Under the 1985 DO, the TIS was to be prepared "as per Attachment E" to the DO. There was disagreement among the transportation planners at final hearing as to what was required by Attachment E to the DO, and by the methodology discussed and agreed to in 1988 by County, SWFRPC and WGC planners and as to whether the TIS submitted by WGC followed Attachment E and the methodology the planners discussed. The more credible and persuasive evidence supports a finding that the 1985 DO did not require the use of the difference between results of the "with DRI" and "without DRI" analyses to determine proportionate share, as advocated by WGC, that both County and SWFRPC staff objected to this method and that it is not standardly accepted DRI practice. (Respondent's Exhibits 63 and 809). Attachment E did not call for a "with and without" approach in which the difference between "with DRI" and "without DRI" analyses would equal project impacts, but rather called for identification of traffic generated specifically by the DRI or DRI trips. The generally accepted definition of a "DRI trip" is a trip that has one "end," or an origin or destination within the DRI. Indeed, WGC's expert planner agreed that Attachment E did require assignment of DRI trips to the road network and he did not do that in the TIS submitted to the County or ever send that information to the County. (Respondent's Exhibit 809; M. Swenson, Tr. 1590-91, 1593-94, 1597-99, 1654-55; Horner, Tr. 870-71, 2880-81, 2901-02, 2926, 2931; Hall, Tr. 3086, 3112-14, 3322-24; Jackson, Tr. 768). Concerning the TIS methodology agreed to by the County, SWFRPC and WGC planners in 1988 for AMP 2, the County and SWFRPC planners established a methodology in June 1988 calling for identification of DRI trips on the road network by means of a manual assignment of those trips from a transportation computer model projecting total traffic on the road network at the buildout of the Area 2 phase. The methodology agreed to did ask for a "without Gateway" model run to give a basic idea of what the roadway network would need to look like without Gateway, but that run was not used to identify DRI trips. The planners rejected WGC's suggestion that project impacts be modeled as the difference between the total traffic "with and without" the Gateway project. (Respondent's Exhibits 154 and 165; M. Swenson, Tr. 1593-96, 1652-54, 1597-99; Horner, Tr. 2874-77). The TIS submitted to the County in February 1989 used the "with and without" methodology, contrary to County and SWFRPC staff positions. This use of the "with and without" approach meant that County staff could not use the TIS to identify project traffic and future roadway needs to determine mitigation because project or DRI trips were not identified. Both County and SWFRPC staff objected to the TIS because it used only a "with and without" approach and failed to identify DRI trips as needed to determine whether a DRI's trips are "significant" on a particular road link and therefore require mitigation. (M. Swenson, Tr. 1657, 1660-61, 1663-64, 1697-98; Loveland, Tr. 2935, 2941-43; Respondent's Exhibits 169, 249, 265, 271 and 273). The TIS also failed to follow SWFRPC DRI policies and had other deficiencies. Under the SWFRPC Comprehensive Regional Policy Plan, DRI traffic is deemed "significant" for purposes of determining which roads should be studied and which roads should be improved or impacts mitigated if DRI traffic is 5% of the Level of Service D peak hour capacity of a road. WGC's planner conceded that his use of a 10% significance factor in the TIS was inconsistent with the SWFRPC adopted plan, which he had been given a copy of prior to the preparation of the TIS. (Respondent's Exhibit 125; Daltry, Tr. 2630, 2681-82; Loveland, Tr. 2942; Horner, Tr. 2920; Jackson, Tr. 775-76; Montgomery, Tr. 498- 99). The TIS also included no calculation by WGC of a proportionate share to be paid by WGC and WGC did not submit an estimated total proportionate share to the County before late July 1989. Prior to-the adoption of the AMP 2 DO by the County on December 20, 1989, WGC's planner never submitted to the County a spread sheet containing his independent determination of a proportionate share. As contemplated by the original DO and as a result of WGC's actions, determination of the proportionate share required of WGC for the traffic impacts of Gateway Areas 1 and 2 fell to the County staff. (M. Swenson, Tr. 1666, 1700- 01; Jackson, Tr. 796). County Methodology As a result of these and other factors, County staff conducted an independent assessment of the road impacts of Gateway Areas 1 and 2 and determination of the proportionate share WGC was required to pay as a result. It is noted that the TIS and DO for Area 2 included Area 1 for purposes of traffic analysis due to the need to cumulate traffic impacts and as a result of prior DO conditions. (Gilbertson, Tr. 2725; Jackson, Tr. 776-78). The basic methodology used by the County staff to determine the WGC proportionate share relied on a transportation computer modeling program known as FSUTMS (Florida Standard Urban Transportation Model Structure) to determine the road impacts of Gateway Areas 1 and 2 in the Area 2 buildout year of 2000 and on a variation of an adopted DCA proportionate share rule for DRIs used to calculate the proportionate share dollar amount owed. (M. Swenson, Tr. 1667-75). County staff agreed with WGC representatives to do various FSUTMS computer runs in August 1989. The staff used a FSUTMS run to identify total traffic on the road network. It also identified DRI trips with a FSUTMS module known as "module 4" or the "DRI trips" or "selected link" methodology. These computer runs were performed and the output was in the form of oversized drawings known as "plots," which identify the road network and traffic volumes projected in the year 2000 on those roadways. Information from the plots for the total traffic and DRI trips FSUTMS runs was then used with a separate Lotus 1-2-3 spread sheet computer program to determine a proportionate share contribution for roads. (M. Swenson, Tr. 1666-68, 1670-72; Faris, Tr. 859; Johnson, Tr. 1483-85; Jackson, Tr. 716; Hall, 3092-93; Respondent's Exhibits 443, 446 and 450). The County used its standard DRI policies at the time to determine proportionate share. Those standard policies follow a variation of the DCA DRI transportation policy rule (Rule 9J-2.0255, Florida Administrative Code) minimum proportionate share policy. Those County policies were that if a roadway was operating at an inadequate level of service (less than level of service D), or the adversity test, and the road was impacted by the DRI by more than 5% of the level of service D capacity of the road (the "significance" test), then a proportionate share for that particular roadway link is calculated. The formula assesses the DRI a proportionate share of needed improvements if future traffic projected at project or phase buildout exceeds capacity, not if the addition of DRI traffic alone causes a road to exceed capacity. However, the DRI is only assessed a share of those total improvement costs. The spread sheet program uses information, including the total trips and DRI trips volumes, determined by FSUTMS, and a number of mathematical calculations to determine whether a proportionate share contribution is required for each roadway link studied, the share for that road link and the total proportionate share due for all road links. (M. Swenson, Tr. 1619-22, 1659-60, 1678-83; Hall, Tr. 3073). According to SWFRPC's executive director, SWFRPC has its own list and map of regional road links to be studied for DRI impacts adopted as part of its Regional Comprehensive Policy Plan. That plan and map show certain roads in the vicinity of Lehigh Acres, such as Alabama Road, as regional. Other roads may be reviewed in the DRI process for local impacts in agreement with the County's MPO. The SWFRPC encourages local governments not to overlook their local roads. It is noted that WGC's planner did not indicate any problem with the list of roads studied by the County for proportionate share purposes and he included them in his own spread sheets offered in evidence. (Daltry, Tr. 2663-65, 2683; Respondent's Exhibit 125; WGC Exhibit 95). The 5% test used by the County to determine if a proportionate share should be determined for a particular roadway link is the SWFRPC's 5% significance test. The basic mathematical formula used by the County to determine Gateway's percentage or proportionate share of a road improvement needed as a result of Gateway's traffic was received from SWFRPC staff. In addition to the 5% significance factor, the SWFRPC staff formula differed from the DCA proportionate share rule in that it allocated "reserve" or presently unused road capacity on road links studied first to non-DRI trips and then to the DRI in the year 2000. (M. Swenson, Tr. 1673-74; Hall, Tr. 3099-3101; Respondent's Exhibit 465). The County's use of FSUTMS and the SWFRPC proportionate share approach resulted in a final County staff spread sheet in November 1989 with a proportionate share for Gateway Areas 1 and 2 of $25,951,738 due to an error in one of the computer formulas for one road link. This total did not include additional improvements still needed by the year 2000 to Daniels Road and Colonial Boulevard. SWFRPC's executive director conducted an independent proportionate share estimate in November 1989 determining a $23.5 million cost. He found the County's $26 million share "within the range." (M. Swenson, Tr. 1677-78; Hall, Tr. 3075-78; Daltry, Tr. 2633, 2635-36; Respondent's Exhibits 525, 541 and 688; WGC Exhibit 187). The settlement of a County-DCA dispute over the 1989 comprehensive plan in the fall of 1989 had no bearing on the $26 million Area 2 proportionate share amount included in the Gateway Area 2 DO. (Bigelow, Tr. 1715-17; Segal- George, Tr. 1191) Using the same basic FSUTMS/SWFRPC staff proportionate share formula, in 1990 the County's expert planner recalculated the proportionate share based on an updated FSUTMS base year model for Lee County and on updated land use, road network and road cost information, all available after County staff acted in 1989. Based on this updated and more accurate information, in October 1990 he calculated a new proportionate share for Gateway Areas 1 and 2 as WGC sought to develop them through the year 2000 of $21,367,457, which reduces the amount imposed in the County's Area 2 DO on appeal by more than $4 million. In conjunction with an alternate five-year development program approving Area 1 and one-half the proposed Area 2 development through 1995 only, the planner in October 1990 also calculated a proportionate share of $11,386,657. (Hall, Tr. 3120-37; Respondent's Exhibits 896 and 897). None of those proportionate share calculations included the cost of additional improvements still needed beyond the six-laning of Daniels Road and Colonial Boulevard. Those improvements could consist of expressway-type improvements to Daniels Road. The County estimated, without challenge, that WGC's proportionate share of them was $8.6 million. (Hall, Tr. 3128-33; M. Swenson, Tr. 1681-82). FSUTMS Model Use Transportation computer modeling of future traffic projections began in the 1960s and has been evolving continuously. Such modeling is the representation of road network and land use date to project future travel demands and road improvement requirements. In the early 1980s, access to computer technology and modeling became more widely available as a result of the creation of microcomputers and minicomputers. Model systems have become extremely "bullet-proof" over many years of use, according to witness Fennessy, a national expert and pioneer in the field of transportation computer modeling. (Fennessy, Tr. 2977-85). The County's expert transportation planner, while working for the Florida Department of Transportation (FDOT) in the late 1970s, developed the concept of a standard computer traffic model for use in all urban areas in Florida and the research needed to implement the concept. The Florida standard model became known as FSUTMS. FDOT's goal was to create a standard model to be used by all public agencies in Florida and private consultants to evaluate future traffic conditions. (Hall, Tr. 3065-66; Faris, Tr. 838). The FSUTMS model, as developed in the late 1970s and early 1980s by FDOT, could only be used on large mainframe computers at first. When microcomputers became available, FDOT was aware that they would allow extended use of FSUTMS by public agencies such as local transportation planning groups known as Metropolitan Planning Organizations (MPOs). MPOs play an important role in growth management and local comprehensive planning issues concerning roads, developing future road improvement design and construction plans for their areas. FDOT wanted all urban areas to continue to plan and analyze long- range transportation needs similarly and in 1985 selected Fennessy as the software author for the FSUTMS model for micro- and minicomputers. The software program became available for use in late 1987 and early 1988 after several years of FDOT testing and refinement. Indeed, Florida is the most advanced state in the United States in the field of transportation computer systems modeling. (Faris, Tr. 844-47). The FSUTMS model simulates human travel behavior. It has three basic operational steps. In simplified terms, based on in-home surveys, the model determines how many trips will be generated for what purpose from each traffic area or zone, distributes them based on the shortest path of travel by time, and assigns them to a particular road network. Old "manual" methods of using a hand calculator, standard industry trip generation rules and guesswork cannot simulate the complex sets of interactions among land uses determined by FSUTMS. Those methods are not as dynamic as FSUTMS is in assessment of DRI traffic impacts. (Faris, Tr. 849-58; Hall, Tr. 3083-88). The FSUTMS model is widely used and accepted. It is used by all Florida MPOs and many local governments and major private transportation planning firms. It is the most commonly used model in Florida today. (Faris, Tr. 863; C. Swenson, Tr. 1341). Over the years, the FSUTMS model has evolved to the point where it is appropriate for use to measure transportation impacts of a particular development using a "selected link" or DRI trips analysis developed by Fennessy which is as accurate as the model in general. Fennessy developed the selected link capability from another computer model in response to inquiries from private consultants and government staff who wanted to know which development had traffic using a particular road link. This technique can be used with a high degree of confidence to isolate trips generated by a particular development and their impact on a particular road. (Faris, Tr. 859; Fennessy, Tr. 2969-75, 2989). The FDOT recommends use of FSUTMS and the selected link methodology to evaluate the transportation impacts of larger DRIs and to determine DRI trips. This recommendation in favor of FSUTMS is contained in official FDOT guidelines for DRI review issued in April 1990. The selected link analysis is the method taught to analyze DRI road impacts in FDOT training courses for private and public planners. One of WGC's transportation planners agreed that FDOT intends in its guidelines that FSUTMS be used to identify the transportation impacts of DRIs and pointed out that Gateway Area 2 is of such a size that it would fit the recommended category for use of FSUTMS. The FDOT has implemented the guidelines in its district offices to require FSUTMS use if recommended by them. If a developer wants to use any other computer model or a manual method, he must go through a justification process as to why he is departing from use of the model studied, supported and recommended by FDOT. (Faris, Tr. 860-61, 888-89; Fennessy, Tr. 2972-73; Hall, Tr. 3078-79, 3081-82, 3143-44, 3212-13; Mierzejewski, Tr. 1152-53; Respondent's Exhibit 674). The DCA's chief of the bureau of state planning agreed that transportation computer modeling is a very common approach for large DRIs and that a computer is needed to help determine the distribution of DRI trips and significance of their impact on the roadway. FSUTMS is the model encouraged and accepted to identify DRI transportation impacts in the DCA's new application form for DRIs projected at time of hearing to be adopted in November 1990. Departure from use of computer modeling would require a demonstration that another method is appropriate. The new DRI application form promotes use of FSUTMS by name to determine traffic generation and assignment to the network and this is the first time a specific transportation model has ever been mentioned in an agency rule. Most of the DRI applicants in the SWFRPC area who use computer modeling are also using the selected link analysis to identify DRI trips as well. (Beck, Tr. 1978, 1987-88, 1993-95; Hall, Tr. 3215-17; Loveland, Tr. 2944; Respondent's Exhibit 734). In the private transportation planning field, it is now routine to use FSUTMS for large DRIs. The old "manual" techniques are only used under standard practice on small DRIs and those with short buildouts. FSUTMS is more accurate than manual techniques in reflecting traffic impacts on a systemwide basis. It provides an objective starting place using land use data in a model validated for accuracy without favoring or disfavoring any particular development. It replaces the subjective manual approach where planners and engineers used to estimate that 5% of a project's trips would head in one direction or 10% in another. The 1984 original Gateway DRI application used those outdated methods. (Hall, Tr. 3081-82; C. Swenson, Tr. 1434-35; Crawford, Tr. 2750, 2752; WGC Exhibit 3). The FDOT has high confidence in the accuracy of FSUTMS. Each model with a particular urban area's land uses projected to a future year goes through a formal accuracy determination called validation. Indeed, no model duplicates observed traffic behavior and no computer model is infallible. However, FDOT standards for accuracy call for traffic projected by FSUTMS to be within 10% of actual ground traffic counts for a prior year on roads with high traffic volumes and within 20% on lower volume roads. During the validation process, adjustments to the model are made to correlate model traffic projections to ground counts. The models are achieving that accuracy generally. The accuracy on individual links may vary by much greater percentages, but if a road link has an inaccuracy greater than 10% or 20%, that variance needs to be explained in order to validate a model. (Faris, Tr. 838, 857-58, 864-65, 881-83; Mierzejewski, Tr. 1145; Nicholas, Tr. 3448). WGC's consultant Mierzejewski questioned using the County FSUTMS model to assess the impacts of a particular development on individual road segments based on illustrations from a December 1989 validation study prepared by Kimley- Horn, a private transportation firm that is a Lee County consultant. In particular, he highlighted the post-validation range of correlation between actual counts and traffic projections for four road segments studied in the Kimley-Horn validation report, although he stated that the Kimley-Horn adjustments to the FSUTMS model during the validation process were generally within accepted modeling practice. However, the Kimley-Horn transportation planner and engineer in charge of the validation report established that plus or minus 20% is the general range for accuracy on individual road links although in some very rare cases there may be significantly higher errors on individual links. Moreover, overall the FSUTMS model as validated for the County is the best method to project traffic for any development within the County, including Gateway, and those model outputs can be used to calculate a proportionate share reliably. The County validated model is more likely to underpredict actual traffic than overpredict it. (Mierzejewski, Tr. 1115-17; 1143-44; C. Swenson, Tr. 1339, 1341, 1359, 1408, 1411, 1415-16, 1434). The model results for four road segments in the validation report Mierzejewski criticized were the four worst of eighty-three studied in the report. However, if the model traffic projections for those road links were adjusted to match actual ground traffic counts, the result would increase the WGC proportionate share for Gateway Areas 1 and 2 by about $1 million, due to the model's tendency to underproject. (Hall, Tr. 3055). Both WGC and County experts agreed that the computer models should be more accurate in the five to ten year timeframe, due to land use projection accuracy, than for longer periods. Thus, FSUTMS and the selected link technique can be used with confidence for analysis of DRI transportation impacts for the DRI-related level of detail in a five and ten year buildout, such as Gateway Area 2. (Mierzejewski, Tr. 1166; Faris, Tr. 881, 937-38) In his private consulting business, WGC's transportation planner routinely uses FSUTMS computer modeling on DRI projects and also uses the output of DRI trips or selected link technique as a guide to identify and assign DRI trips to the road network and as an input to calculation of a proportionate share. Both he and County experts agreed that transportation planning and engineering judgment should be applied to analysis and use of the traffic volumes projected using the FSUTMS and the DRI trips technique. If sound engineering judgment indicates that the model outputs are logical, both also agreed that no adjustments to the output of FSUTMS may be needed. The FDOT April 1990 DRI review guidelines also call for use of judgment in using modeling results. (Jackson, Tr. 710, 804-05, 816, 820-21, 971, 3568-69, Hall, 3057-58, 3092-93; Respondent's Exhibit 674). Concerning the total future traffic projections and DRI trip projections as a result of the County's FSUTMS runs in September 1989, WGC's expert witness Jackson did not have any major problems with using the data without adjustment from computer runs as input into the County's proportionate share spread sheet. The expert was present at County offices in mid-September 1989 when the County prepared its output "plots" from the FSUTMS DRI trips runs. The record reflects that the expert (and his staff) actually helped input the data from FSUTMS computer plots into the County's proportionate share spread sheet program, and concluded that the output was reasonable for use and that the DRI trips model run was valid. (Jackson, Tr. 802-03, 806-08, 1023-24; Johnson, Tr. 1490-94, 1499-1500). DCA Rule and County Variations The DCA established the basis from which the County derived its proportionate share methodology in a DRI transportation policy rule (Rule 9J- 2.0255, FAC) adopted in early 1987. According to the DCA's chief of bureau of state planning, there was extensive debate over the rule and input from many formal and informal advisory groups, but the rule was a consensus as far as one could be reached. The goal of the rule was to bring some consistency to DRI transportation impact assessment and evaluation. The rule has had the intended effect. (Beck, Tr. 1966-67, 1976-77). The DCA rule includes three mitigation options: "staging" of development with the timing of road improvements by government or others so they accommodate the development, "pipelining" proportionate share dollars for road impacts to one or more major improvements, and a creative third option which combines those two. In "pipelining," the most commonly used option, a mathematical formula is used to calculate a proportionate share and those dollars are paid up front before development occurs and expeditiously committed to actual road building. WGC transportation experts agree proportionate share dollars are usually paid up front and devoted to road building in advance of development. If these minimum criteria are met, then a DRI has, to DCA's satisfaction, met the requirements of Subsection 380.06(15)(e), Florida Statutes, that a DRI makes "adequate provision" to accommodate its road impacts. (Beck, Tr. 1964, 1967-68, 1972; Jackson, Tr. 962-63; Mierzejewski, Tr. 1164). The DCA rule options establish minimum criteria. Both the rule and DCA practice allow regional planning councils and local governments to impose more stringent criteria or mitigation requirements. For example, the SWFRPC, and other regions, use the 5% significance test, rather than the DCA's 10% test. Transportation monitoring of actual traffic conditions as the DRI develops and determination of whether a road should be considered "committed" for improvement or subject to a proportionate share charge are other areas where the local government could be more stringent, based upon local or regional conditions. (Beck, Tr. 1964, 1969-70, 1972, 1974; Bittaker, Tr. 1476-77) The proportionate share formula used by the County as obtained from SWFRPC staff had another more stringent feature than the DCA rule. The formula used by the County allows any "reserve" capacity on a road segment to be used first by non-DRI traffic before it is used by the DRI being analyzed. The DCA formula gives first call on use of the reserve capacity to the DRI being reviewed. Even prior to submitting the TIS, WGC was aware that this reserve capacity issue had a major effect involving millions of dollars on proportionate share amount and that reviewing agencies often ignored the reserve feature of the DCA rule. (Hall, Tr. 3099-3101; Horner, Tr. 2882-83; Jackson, Tr. 783; Anderson, Tr. 2026-27; Respondent's Exhibits 218 and 736). The specific SWFRPC staff formula supplied to County staff was used for the Omni DRI in Fort Myers and gave other development first call on reserve capacity before the DRI. SWFRPC staff did not feel that DRIs should have first call on existing capacity. The southwest Florida region has a large number of approved subdivisions with one million lots that have a vested right to develop and the County has 400,000 such lots. There is no available reserve capacity near those projects and they should get priority over a new expanding DRI. In other words, the latest DRI should not be first in line. Those projects include Lehigh Acres near Gateway and Cape Coral and will require use of existing reserve road capacity. (Horner, Tr. 2882-83; Loveland, Tr. 1207-08; Daltry, Tr. 2630-33, 2644). The SWFRPC has not formally adopted a formula to deal with the vested project issue due to diversity but the SWFRPC itself has continually indicated that vested projects were more entitled to use capacity than a new DRI. Its staff recently has been taking a position of equivalent use by DRIs and non-DRIs but vested growth constitutes a public policy reason for the approach taken in the formula used by the County. The County used the formula because it was more representative of conditions in the County concerning the use of excess or reserve capacity than the DCA rule in light of the large, vested Lehigh Acres and Cape Coral projects in the County. (Daltry, Tr. 2653-54, 2680-81; M. Swenson, Tr. 1674-75; Spikowski, Tr. 1817). It is not inequitable to give other developments use of reserve road capacity before Gateway because surplus capacity should belong to the general public or the County, which is paying for 80% of the road needs in the vicinity of Gateway. This use of reserve capacity is a legitimate public policy choice so long as the County treats other DRIs similarly. First come, first served is a normal approach to use of available road capacity. (Nicholas, Tr. 3432-34, 3461-62). Proportionate Share for Daniels Road Widening Daniels Road is a major east-west road that serves and will serve the Gateway DRI. Daniels Road to the south of Gateway, Colonial Boulevard to the north, Metro Parkway to the west and S.R. 82 to the east form the principal road network surrounding Gateway on all four sides. (Hall, Tr. 3096-97; Respondent's Exhibit 738). The inadequate condition of Daniels Road as a two-lane facility was of particular concern to the County in the late summer and early fall of 1989. It was the general consensus that Daniels Road should be widened to six lanes rather than four, and the County approved imposition of two additional cents of local gas taxes and bonded those revenues in order to accommodate the six- laning. The County bonded ten years worth of these gas taxes to get the Daniels Road and Colonial Boulevard Extension improvements, among others, built although its most important development areas lie elsewhere, in Cape Coral, Bonita Springs, and South Fort Myers. (Segal-George, Tr. 1185-87; Spikowski, Tr. 1820, 1931; WGC Exhibit 16). The Gateway DRI benefits from the Daniels Road widening. The County accelerated the Daniels and Colonial improvements ahead of other pressing needs elsewhere to serve development needs, including those of Gateway. Gateway is a major contributor to the need for the Daniels Road widening, although not the sole cause, and Daniels Road was substantially impacted under the 5% significance test by the proposed development of Gateway Areas 1 and 2. A conservative estimate of Gateway's proportionate share use of the Daniels Road to the year 2000 was 20%. (Jackson, Tr. 991; Spikowski, Tr. 1848-50; M. Swenson, Tr. 1687; Hall, Tr. 3130-31). The County advance-funded the Daniels Road widening based on knowledge since 1983 of the Gateway development. If a county such as Lee County advances road funding in order to get ahead of development, it should not bear the risk that it cannot recover those funds in part from benefited developers. If the County cannot require Gateway's participation, the County would not participate in future forward funding. The County also demonstrated responsibility by determining the amount of development expected east of I-75 and initiating improvements rather than waiting for severely congested conditions, given the long lead time needed to plan, design, and build roads. It is unsafe to wait until a road is over capacity to initiate improvements. (Hall, Tr. 3098, 3249-50; Nicholas, Tr. 3472-73, 3508-09, 3519-22). If the Daniels Road widening to six lanes were considered a road "committed" to improvement, under the County's proportionate share methodology WGC would pay nothing for the widening of Daniels Road from two to six lanes, despite Gateway's traffic impact on that road. In any event, however, WGC would need to participate in funding improvements beyond six-laning. (Hall, Tr. 3342) The County staff initially considered the Daniels Road widening committed and calculated no proportionate share for WGC on that facility. When the county administrator learned of this, she determined it made no sense to charge nothing of a development that would significantly impact Daniels Road and established a policy that developers' road impacts should be assessed and a proportionate share calculated, regardless of whether the road improvement was in the County's capital improvement budget. It is the County's present general practice and policy to follow this approach for all developments. The County staff followed this policy for Gateway Areas 1 and 2 for roads including Daniels Road, the Colonial Boulevard Extension, and Metro Parkway. It would not be a true picture of Gateway's traffic impact and resulting responsibility to assume that improvements to those roads, which are now underway, were in place without a proportionate share contribution required from WGC. (Segal-George, Tr. 1187- 89; M. Swenson, Tr. 1610-12; Hall, Tr. 3096-97, 3169-70). Other DRIs in the vicinity of Daniels Road have been assessed a proportionate share for that road widening and it is reasonable to expect WGC to pay along with other anticipated causes of growth for that project. (Crawford, Tr. 2840-41, 2844-47) Other DRI review agencies agree that the issue of whether a road improvement is considered "committed" or should be assessed a proportionate share may depend on local circumstances. The DCA transportation policy rule does not address what is a committed road. Rather, that is an area left to local government based on local and regional conditions. In addition, committed roads usually include those under construction, but the source of the funding commitment is important and those revenue sources commonly include anticipated developer proportionate share payments. (Beck, Tr. 1974; Daltry, Tr. 2659, 2678- 79; Hall, Tr. 3243-44). If the County were to follow DCA's staging option approach to mitigation, the Gateway Area 2 development, as proposed by WGC in a single 10- year phase, would be required to wait until Daniels Road improvements beyond six-laning were planned and in place. Segments of Colonial Boulevard, as well as Daniels Road, would also fail by 1995 and 2000 even after identified improvements have been made. (Hall, Tr. 3104-05, 3128, 3342-43, 3351-53, 3575). County Estimated Road Improvement Costs In determining a proportionate share, the DRI's percentage of the demand for a needed road improvement is multiplied times the estimated cost of the improvement. In the County proportionate share spread sheets prepared in 1989, costs were based on estimates from the County project manager in charge of road projects under design or improvement and on FDOT average costs. The DCA generally relies on FDOT and local government cost data for estimated road costs under its proportionate share rule. (M. Swenson, Tr. 1673, 1681, 1683; Beck, Tr. 1973). As part of his updated 1990 determination of a proportionate share contribution for Gateway Areas 1 and 2, the County's expert planner Hall made adjustments to the cost per mile data based on actual bid and other updated information prepared by the County staff. The updated costs came from County staff, FDOT and adjustments made by Hall. For County roads under construction or bid, Hall used costs determined by the county engineer in September 1990. Those costs for Cypress Lake, Daniels Road, Metro Parkway, Six-Mile Cypress and the Colonial Boulevard Extension were cost per centerline mile averages derived from actual or estimated right-of-way, engineering, construction, project management and miscellaneous costs. Those costs were the most accurate reasonable costs available to the County as of September 1990. WGC's transportation engineer and civil engineering consultant agreed that specific actual or bid costs for particular road projects were better to use than other types of estimates. (Hall, Tr. 3149-50, Brown, Tr. 2535-37; Hill, Tr. 1088; Jackson, Tr. 991; Respondent's Exhibit 739). The County's expert Hall found that the cost data he used for his $21.4 million proportionate share estimate in the year 2000 were considerably more refined than data often used to calculate proportionate shares for DRIs and that it was the best data available from FDOT and the County for specific construction projects. (Hall, Tr. 3343-44). Most of the WGC criticisms of the road costs used by the County were directed at estimated costs before they were updated for actual bid costs. The principal witness who leveled these criticisms, Hill, had never done a DRI proportionate share calculation and had no road design or road engineering experience in Lee County. Hill estimated costs calculated by the County were too high based on actual bids and on cost data in a March 1989 road impact fee study prepared by Kimley-Horn, an engineering consulting firm used by the County. Hill selected the Kimley-Horn data as the best estimate of cost in instances where there was no bid. However, the author of that study established that the cost numbers in the study should not be used to calculate a proportionate share except as a gross check against other estimates. (Hill, Tr. 1064-65, 1066-70, 1092-93; C. Swenson, Tr. 1348-49; WGC Exhibit 101). WGC witness Jackson also criticized the county engineer's costs used by County witness Hall because those costs were not further broken down for each road segment along Daniels Road per lane mile. However, the county engineer established that it was not appropriate to calculate a lane mile per cost by dividing the cost per centerline line mile by the number of lanes on a road segment because a cost per lane mile needed to be based on actual engineering analysis of the work being done. In addition, further understanding of design and engineering factors would be needed to refine further the costs used for Daniels Road. Witness Jackson acknowledged that he had done no significant study of design plans for the Daniels Road widening, although he proposed a reduction in the proportionate share for Daniels Road on a lane mile basis. Like witness Hall, WGC witness Hill used a uniform cost per mile for all Daniels Road segments and indicated that was a legitimate approach if the cost per mile were based on actual bids, as Hall's was. In a proportionate share estimate offered by witness Jackson during the final day of hearing, Jackson assumed a uniform cost per mile for Daniels Road, just as Hall did. (Brown, Tr. 2552-53; Hall, Tr. 3155; Jackson, Tr. 3562-63, 3573, 3578; WGC Exhibit 101). WGC witness Jackson also questioned whether costs used by Hall for S.R. 82 were "somewhat" too high because they assumed a uniform cost for segments in the heart of downtown Fort Myers and those near downtown. However, Jackson did not independently estimate what the cost should be, did not adjust 1986 or 1987 FDOT cost estimates for S.R. 82 for inflation and did not study property values along S.R. 82 concerning right-of-way. State road costs in general may exceed county costs due to more stringent bidding and engineering factors. (Jackson, Tr. 3564-65, 3580-81; Hall, Tr. 3285, 3587). Impact of Gateway by DRI trips v. "With and Without" Methodology WGC witness Jackson contended that the traffic impacts of a DRI should be assessed using a "with and without" approach rather than the DRI trips method used by the County. He based this contention in part because the "with and without" method is a better way of assessing "new" trips added to the roadway as a result of the DRI. However, Jackson himself in his work has used a DRI trips approach rather than the "with and without" method to calculate a DRI proportionate share. (Jackson, Tr. 3554-57, 3568-69). Jackson never submitted a proportionate share calculation using the "with and without" method to County staff and WGC introduced no evidence of the monetary effect of that method of analysis on the total proportionate share assessed by the County in 1989 or redetermined by County witness Hall in October 1990. Moreover, he agreed with the County and SWFRPC that the DCA proportionate share formula, on which the County formula is based, does not use the difference between "with and without" trip projections (variously called "impact trips" or "travel demand" by WGC witnesses and counsel) as the measure of a DRI's traffic impact. The DCA and County formula call for determination of DRI trips (trips with an origin or destination in the DRI) and use of that number in the proportionate share calculation. (M. Swenson, Tr. 1682; Jackson, Tr. 990, 3569- 70 Crawford, Tr. 2842-43; Hall, Tr. 3108-09; Loveland, Tr. 2961-62; Horner, Tr. 2878). The FDOT recommends the DRI trips approach to assess impact instead of the "with and without" method. One major problem is that the "with and without" method fails to identify trips leaving or entering the DRI on roads at its front door. (Faris, Tr. 860, 914-15, 934-35). The SWFRPC staff generally does not accept the use of the "with and without" methodology to assess DRI impacts because it identifies the effect of diversion of traffic due to a DRI rather than specific DRI volumes on each roadway. The "with and without" approach tends to understate the impact of the DRI on roads near the DRI. In the case of the Omni DRI, for example, the "with and without" approach showed a major DRI would result in fewer trips right at the DRI's front door. (Loveland, Tr. 2943; Horner, Tr. 2878-80, 2915, 2917, 2925-26). The "without project" trip volumes and "with project" volumes represent two entirely different traffic projections assuming different land uses. The difference does not equal DRI trips on any particular road link. The "with and without" method could operate so that multiple DRIs could set up a domino theory in which each DRI evades responsibility to mitigate a major portion of traffic coming to a DRI destination. (Hall, Tr. 3108-12; Respondent's Exhibit 737). Concepts related to "new" versus "old" trips, including trips diverted to the DRI, are not relevant when FSUTMS modeling is used. The model looks at sophisticated land use interactions and determines how many trips there will be on each road link in the future, eliminating the need to focus on trips existing today. The model also makes the concept of a diverted trip unnecessary to consider in looking at future impacts. WGC witness Jackson also assumed in an impact fee calculation he prepared, where a determination of percentage of "new" trips was required as an input factor, that 100% of trips generated by Gateway Areas 1 and 2 would be "new." He further agreed that FSUTMS takes diverted trips into account and that County witness Hall's final proportionate share determination of $21.4 million should not be adjusted to reflect the concept of new trips versus old trips. (Hall, Tr. 3338-40, 3048-49, 3088-90; C. Swenson, Tr. 1352-53, 1435-36; Faris, Tr. 861-62; Jackson, Tr. 819, 1001-02, 3582) Division of Proportionate Share by Two From the outset of the Gateway Area 2 application preparation process in April 1988, it was a WGC internal goal or desire of considerable importance to keep transportation mitigation using a DRI proportionate share approach below the amount of impact fees, which are charged all new County developments. WGC was preoccupied with this subject throughout 1988 and 1989. From November 1988 through 1989, WGC witness Jackson prepared numerous memoranda and analyses for WGC comparing proportionate share contribution estimates with anticipated road impact fees owed by Gateway for Areas 1 and 2. The proportionate share estimate by Jackson rose from $500,000 to $14 million during this time period. In some of these analyses, Jackson advised his client that current road impact fees should cover all WGC proportionate share contribution requirements In July 1989, Jackson's highest proportionate share estimates for Areas 1 and 2 were still slightly lower than anticipated impact fees, both of which were in the $13.5 - $14 million range. Jackson's proportionate share estimate was shared with the County for the first time in a July 25, 1989 letter to the county administrator from WGC's executive vice-president who maintained that traffic mitigation should not exceed impact fees. During the same November 1988 to July 1989 timeframe there was no discussion between WGC and Jackson about dividing the proportionate share in half. (Jackson, Tr. 757-58, 760-63, 779-99, 1024; Anderson, Tr. 2024-25, 2032-34; Respondent's Exhibits 156, 175, 209, 212, 218, 260, 264, 295, 296, 306, 317, 334, 360, 368-370 and 602) In mid-September 1989, Jackson visited the County's offices and his staff and subconsultant inputted FSUTMS data into proportionate share spread sheets. He was aware at that time that the DRI trips approach, not the "wish and without" method, was going to be used by the County to calculate proportionate share. During this same timeframe, the County had created spread sheets determining proportionate share dollar amounts owed by WGC. A County spread sheet available by September 21, 1989, showed that the County proportionate share had reached $17 million (if not divided by two) more than impact fees. On September 15, 1989, Jackson proposed for the first time to County staff that the proportionate share should be divided by two if the County wanted to use DRI trips. (Johnson, Tr. 1490-91, 1494; Jackson, Tr. 802-04, M. Swenson, Tr. 1675-76; Respondent's Exhibit 459). By memorandum dated September 19, 1989, Jackson argued the proportionate share should be divided by two because the DRI was responsible for only one end of a DRI trip. Although a County staff person agreed to division by two in a September 21, 1989 letter, the staff person did not discuss the content of that letter with anyone before he wrote it. The staff person based his decision on an inaccurate conclusion from questions he asked others about the model. Based on further discussions with experts and study of model workings, the staff member later concluded he was wrong. A full staff consensus was subsequently reached that the proportionate share should not be divided by two and the final decision was up to the Board of County Commissioners. Standard county policy is not to divide DRI proportionate share calculations in half. (Gilbertson, Tr. 272 6-28, 2730-31, 2745-47; M. Swenson, Tr. 1627-28; Jackson, Tr. 977-78; Segal-George, Tr. 1192; Gibbs, Tr. 2234-35; Respondent's Exhibits 454 and 459). The DCA, SWFRPC and County experts all reject the divide by two approach for a number of reasons. The DCA considered and rejected it during consideration of its DRI transportation policy rule because it is an impact fee methodology, not a DRI exaction methodology. The County agrees that division by two is an impact fee principle that is not properly applied to DRI proportionate share calculations. It is one of the simplifying assumptions used in impact fees that assumes there will be an impact-fee-paying development at each end of the trip. However, that is often not the case, so the impact fee tends to undercharge. The SWFRPC staff also rejects division by two because to do so would provide a double benefit since the proportionate share approach already only imposes a proportionate share charge for DRI trips if they are significant (greater than 5%) on a road segment that will operate at an "adverse" level of service. Transportation planners for SWFRPC since 1984 have never seen this type of division by two approved for a DRI. (Beck, Tr. 1981-82; Nicholas, Tr. 3399-3400, 3402; Daltry, Tr. 2636-37; Horner, Tr. 2884; Loveland, Tr. 1211, 2948). The County's expert Hall also found it completely inappropriate to divide by two and was not aware of any transportation consultant in Florida that had used that approach to assess DRI transportation impacts. A proportionate share charge is only imposed on adversely operating roads where DRI trips are significant and those limitations naturally reduce or eliminate proportionate share costs as DRI trips get farther away from the DRI. Based on Hall's October 1990 proportionate share calculation, this effect resulted in a proportionate share charge for only about half, or 53%, of all miles traveled by DRI trips. It is logical to divide by two for impact fees due to simplifying and averaging assumptions used, but not for site-specific DRI proportionate share assessments that focus on charging the DRI for DRI trips occurring near the DRI on roads that will fail. Other County experts concurred in this assessment. At hearing, WGC witness Jackson also corrected any implication in his written testimony that Gateway was charged a share for all DRI trips rather than only for those where the significance and adversity tests were met. (Hall, Tr. 3115-20, 3345-46; Crawford, Tr. 2759-60; C. Swenson, Tr. 1356-57; Jackson, Tr. 825, 946-49, 966- 67, 985-86). Division by two was also out of WGC witness Jackson's realm of experience until this case. Of the more than fifteen DRIs he has worked on, none involved division by two of a proportionate share calculated using the FSUTMS model. Finally, WGC expert witness Mierzejewski conceded there are no state or regional public agencies that espouse his view that if a proportionate share method is used, the proportionate share should be divided between both ends of the trip. (Jackson, Tr. 808; Mierzejewski, Tr. 1162-63). i. Gas Tax Credit Issue The County rejected witness Jackson's suggestion in 1989 that gas taxes attributable to development of Gateway Areas 1 and 2 should be deducted from the proportionate share. WGC expert Fishkind also argued that the present value of gas tax credit should be deducted from the proportionate share. However, there is no such deduction provided for in the DCA's DRI transportation policy rule. Indeed, during the rule adoption proceeding, DCA rejected the idea that the gas tax credit should be subtracted from the proportionate share because there was no way to assure that those funds would be allocated to address the site-specific impacts of a DRI. (Fishkind, Tr. 1238-41; Jackson, Tr. 737-38, 965, 3559-60, 3571; Beck, Tr. 1977-78). County expert Nicholas established that there should be no deduction from the proportionate share for gas taxes so long as WGC receives impact fee credit for the total proportionate share contribution. Impact fees include a credit for gas taxes. Giving both impact fee credit and separate gas tax credit for payment of proportionate share would give the same gas tax credit twice. The County was the first local government in the State to create a transferable impact fee credit program so the impact fee credits above those Gateway can use should be valuable and marketable to other developers. Finally, it is noted that gas taxes attributable to Gateway Areas 1 and 2 could "dribble" in over the next 25 years and thus not be available to provide road improvements by the time they are needed. Gateway did not appear willing to wait 25 years for road improvements to be phased in. (Nicholas, Tr. 3402-03, 3424-25, 3473-77, 3479, 3384-85, 3441, 3533-36, 3467-68, 3533-36; C. Swenson, Tr. 1340-41, 1401-02) 1989 Area 2 DO Issues DCA Concerns DCA witnesses identified two areas of concern in the 1989 DO on appeal: (a) a condition on page 19 of the DO requiring Gateway to pay to correct certain roads after 1995 without attribution of the road deficiency to Gateway; and (b) a condition on page 17 of the DO requiring Gateway to undergo further DRI review although it may have mitigated for road impacts. On September 5, 1990, the County modified its position in this proceeding by abandoning (deleting) the two provisions opposed by DCA. (Bittaker, Tr. 1446-48, 1460-61; Spikowski, Tr. 1825-27; Respondent's Exhibits 606 and 742). Impact Fee Credit The County should grant Gateway impact fee credits for the full proportionate share imposed if it exceeds impact fees and both exactions are imposed for the same need. The County's revised position, as reflected in its exhibit 742, gives full credit and thus resolves the issue. It is noted, however, that the County would continue not to give credit for approximately $1 million for obligations for which no credit was given under the Area 1 DO. (Nicholas, Tr. 3390, 3519, 3527-28; Spikowski, Tr. 1804-05, 1904-05; Respondent's Exhibit 742). Monitoring of Actual Traffic Conditions related to traffic monitoring involve an area where local governments may be more stringent than the DCA transportation rule or regional policies. Standard SWFRPC practice is to monitor all significantly impacted roads using the 5% significance test. The 1989 DO contained a list of intersections and roadways to be monitored. Monitoring is needed to see if WGC may be responsible for road improvements beyond those for which it has paid by means of a proportionate share. There are a number of roads for which no proportionate share would be imposed because traffic is not significant or the road would not operate adversely, but where conditions are being approached. It is possible that over the course of actual development of Gateway Areas 1 and 2 that those conditions will be reached, thus triggering a need for mitigation. If so, in order for WGC to continue development, improvements needed to restore an acceptable level of road service must be made by the public, WGC or other entities (the staging approach). However, any additional costs would be paid by WGC only if, despite best efforts today to identify future road impacts, additional roads fail and Gateway's impact on such roads is significant under the 5% significance test. As reflected in witness Hall's testimony, the County has receded from its original position and now proposes to monitor only those roads and intersections where the significance and adversity conditions are being approached and on roads immediately adjacent to Gateway. They include Daniels Road, Metro Parkway, S.R. 82 and Colonial Boulevard, all having proximity to where the proposed development will have the greatest impact. By monitoring only those roads, the County has insured that there is no overlap or double assessment of mitigation. (Beck, Tr. 1970; Loveland, Tr. 2950; Spikowski, Tr. 1805, 1911-17, 1934-35; Hall, Tr. 3135-37; Respondent's Exhibits 606 and 742) While recognizing that DRI development orders often contain requirements for traffic mitigation that are open-ended based on monitoring, WGC witness Fishkind criticized this element of the 1989 DO and suggested that it would cause WGC difficulty in obtaining bank financing for its development. However, he did not know if WGC relies on this type of financing for its development. Even so, the County's abandonment of its more stringent monitoring requirements substantially reduces its open-endedness. Moreover, witness Fishkind acknowledged that open-endedness is a general statewide consequence of modern "concurrency" requirements. Finally, the record establishes that developers and local governments have found ways to assure sufficient certainty so that front-end development financing can be obtained. (Fishkind, Tr. 1250-52, 1301, 1304-05; Nicholas, Tr. 3436-43). Five-Year Traffic Reanalysis The 1989 DO includes a reanalysis of the Gateway Areas 1 and 2 proportionate share in five years and a potentially greater proportionate share but no lesser one. There are sound transportation planning reasons for a five- year review based on new conditions and such re-reviews are not uncommon for DRIs. One particular reason for re-review in 1995 in this case is because both Daniels Road and Colonial Boulevard are projected to operate at unacceptable levels of service by 1995 and by 2000 and it is reasonable to anticipate that further improvements may have been identified by 1995. However, rather than mandate a 1995 re-review for a ten-year approval as required in the 1989 Area 2 DO, County planners believed it fair to give WGC a choice of a five-year approval for one-half the proposed Area 2 development or a full ten-year approval without mandatory review. However, proportionate shares assessed for those periods would not be refunded. The proportionate share "pipelining" approach is designed to collect those funds up front and actually spend them expeditiously for road construction. The DCA proportionate share rule does not provide for any refund of "pipelined" dollars paid at the beginning of a phase. This concession by the County resolves an issue raised by WGC. (Hall, Tr. 3125, 3128; Nicholas, Tr. 3436-37; Spikowski, Tr. 1803-04; Beck, Tr. 1968, 1980; Respondent's Exhibits 742, 896 and 897). Concurrency Requirements Upon further consideration, the County staff determined that if WGC pays a proportionate share toward improvement of certain roads, WGC should be granted "concurrency" protection for its contribution to those improvements on those roads. The 1989 DO provided no such protection. On September 5, 1990, the County abandoned its original position and took the position that WGC has met concurrency provisions for the roads where a proportionate share is imposed in witness Hall's October 1990 spread sheet to the extent of the road capacity considered in assessing the proportionate share. Full transportation concurrency for roads, such as Daniels Road, where additional improvements are still needed to serve the proposed Area 2 development in the year 2000, cannot be determined until later. (Spikowski, Tr. 1798-99, 1805, 1907-08, 2139-40; Respondent's Exhibits 606 and 742). Colonial Boulevard Extension Credit After the 1989 DO was rendered, the County determined that credit should be given to WGC for amounts assessed or paid by WGC under an October 11, 1989, agreement between landowners, including WGC, and the County to fund the extension of Colonial Boulevard from I-75 to S.R. 82. By making such a concession, the County has resolved an issue raised by WGC. (Hall, Tr. 3131-32; Respondent's Exhibits 742 and 819). Restrictions on Additional Applications to Five-Year Periods On September 5, 1990, the County agreed to amend the 1985 DO and the 1989 Area 2 DO to provide that future Area Master Plan increments of development, either as new AMPs or additions to Areas 1 and 2, must have buildout dates of no less and no greater than five years. Additions to Areas 1 and 2 may be submitted every three years and, in all instances, the County may permit more frequent applications if unique circumstances warrant in the public interest. The 1989 DO included a five-year phasing concept, but the restrictive amendment would make it more precise. (Spikowski, Tr. 1799-1801; Gibbs, Tr. 2140). The 1985 DO contemplated development of nine areas within Gateway over a forty-year period, or an average increment of just under five years in length. The inclusion of original Areas 2-5 in a single Area 2 violated the spirit and intent of that arrangement. There are numerous general and specific reasons why a five-year phasing approach is appropriate. In the planning field, five-year planning periods have been used historically throughout the United States in conjunction with revenue cycles. Five years is the period of time most commonly used by the planning profession. Five year planning periods are used in the County for the County's capital improvement program, FDOT and MPO transportation improvement plans and DRI development orders. The five year period is particularly appropriate for estimating road impacts and needed mitigation because land use assumptions and cost data are more accurate in the five year horizon. In fact, FDOT recommended in 1984, after reviewing the original Gateway DRI application, that only "tentative conceptual approval" should be granted subject to and dependent on the results of incremental transportation impact analyses every five years. In addition, because it takes five to seven years to plan and build a major road, the five year period provides a realistic view of whether roads actually may be built during a five year development phase. More fundamentally, as the Gateway Area 2 case illustrates, determining mitigation beyond five years involves assumptions subject to debate and the mitigation required for a ten-year period may be too high for developer acceptance. These considerations indicate that the five-year period is an appropriate one to use in the AMP process and fulfills the 1985 DO's finding that the AMP process should "logically and rationally coordinate the phasing of development with available facilities." (Gibbs, Tr. 2132-34, 2255-56; Starnes, Tr. 2439-41; Spikowski, Tr. 1792-94, 1799-1801, 1877; Respondent's Exhibits 22, 63, 742 and 809). The proposed five-year phasing approach also gives WGC adequate flexibility to plan and structure its development program. WGC can elect a ten- year approval under the County's restrictive amendment and still apply for a new AMP development approval as early as 1995. It can apply for additions of residential units and non-residential square footage in Areas 1 and 2 in three years. If WGC has developed all approved uses in shorter periods, it can seek relief from the County under the proposed special circumstances provision giving the County great latitude to accept and approve an AMP application early. While initial start-up may be slow, in the five-year Area 1 phase from 1985-90 WGC had sold perhaps two hundred of the 1,850 dwelling units approved in Area 1, raising questions about WGC's need for further early approvals. This restrictive amendment resolves an issue raised by WGC. (Spikowski, Tr. 1800, 1879-81; Koste, Tr. 615; Schmoyer, Tr. 90). WGC has also recognized in its own planning the viability of five- year planning periods and the need to address changes as development proceeds. In the original ADA, WGC stated: Complete development of Gateway is anticipated to require 40 years, commencing in 1985. For purposes of discussion, the 40- year phasing of Gateway has been separated into eight 5 year periods for Residential, Business, and School classifications . Data shown are estimated for 5-year phasing periods for residential dwelling units, business acreage, and number of schools by type. In addition, WGC witness Schmoyer testified: The Community Plan consists of planning areas showing generalized land areas. Each area is to be developed in accordance with the Area Master Plan Program set forth in the 1985 development order for the Gateway DRI. Dividing the property into planning areas allows the flexibility needed to meet the constantly changing needs of an evolving community. As each area master plan is submitted to the County for review and approval, specific information is provided such as the precise location and character of residential units ... plus the locations and types of facilities required by a thriving community. (WGC Exhibit 3; Schmoyer, Tr. 82). Additional Improvements to Colonial Boulevard and Daniels Road As previously found, portions of Colonial Boulevard and Daniels Road are projected to fail even after six-laning. Therefore, it is appropriate to impose a requirement that WGC mitigate for its significant impacts on those roads when additional improvements are identified. On September 5, 1990, the County proposed to impose a proportionate share of the cost of those additional improvements on WGC, which is in relation to its use of the capacity of those roads. This restrictive amendment resolves an issue raised by WGC. (Spikowski, Tr. 1805-06; Respondent's Exhibit 742). Other Revisions The position taken by the County on September 5, 1990, contains other conforming changes to Areas 1 and 2 transportation conditions in the 1989 DO. It also updates provisions of the 1985 DO to lodge the county engineer's transportation review responsibilities in the Board of County Commissioners, to replace a required proportionate share agreement with DO conditions, and to require WGC to propose traffic mitigation in the TIS. All such changes are found to be reasonable and appropriate. (Spikowski, Tr. 1801-02; Gibbs, Tr. 2138; Respondent's Exhibit 742). Inflation Index If a revised Gateway Area .2 DO allows payment of a portion of the proportionate share by WGC after 1990, as the County now proposes if a year 2000 development program is used, then those future payment amounts should be adjusted for inflation at the time of payment. The year 2000 program allows payment over the first six years of the ten-year Area 2 development phase. The appropriate inflation index to use is the state highway construction cost index published in the Engineering News-Record (McGraw-Hill). (Crawford, Tr. 2768-69; Spikowski, Tr. 1804; Respondent's Exhibit 742). Substantial Deviation By its position taken on September 5, 1990, the County also proposed to find that, due to the fact that the Gateway Area 2 application addressed new, additional or previously unreviewed substantial impacts, such as road impacts, there is a substantial deviation to the 1985 original DO, but if the proposed conditions are met, the application may be approved. The SWFRPC planner who coordinated SWFRPC review of the original Gateway DRI application established that the application did not include the detailed information for Area 2 required for DRI review and that the Area 2 transportation impacts under 1989 road conditions could be different than those originally reviewed. Gateway Area 2 will require improvements beyond the six-laning of Daniels Road by 1995 or 2000, for example, while the SWFRPC's 1984 impact assessment projected that six lanes were all that would be needed by 2010. (Spikowski, Tr. 1607, 1892; Burr, Tr. 2692, 2695-96, 2710-11; Respondent's Exhibits 22 and 742). WGC Alternate Mitigation Proposals During the course of this proceeding, WGC witnesses discussed at least five different approaches to the determination of appropriate mitigation for the transportation impacts of Gateway Areas 1 and 2. They included: A so-called regional planning council method of division of a proportionate share by two; The DCA rule proportionate share method; A method correlating projected WGC trips to a percentage of projected County road costs in the year 2000; Road impact fees including an independent fee assessment for Gateway; and The proportionate share variation of the DCA rule used by Lee County, previously described. Only the last two methods were shown to be potentially applicable to this case. These proposed approaches are discussed below. (Kendig, Tr. 266-67; WGC Exhibit 46). Regional planning council division by two method WGC witness Kendig suggested that the SWFRPC had a mitigation method resulting in a $15.9 million proportionate share. However, this suggestion was disavowed by SWFRPC staff and other witnesses. One premise for the $15.9 million proportionate share is apparently a calculation by County staff in 1989 using a 1% rather than 5% significance test which determined that the WGC proportionate share for Areas 1 and 2 would be approximately $31 million. A second premise for the $15.9 million amount is apparently a statement in a November 2, 1989 memorandum by SWFRPC staff concerning proportionate share issues. The memorandum contains a statement at the bottom of the first page that "the act of `cutting in half' is only appropriate when 100% of all trips are counted for their full length." However, it was explained that the statement is meant to require assessment of all DRI trips (not just those that were significant at 5% or more) over their full length of travel, even on roads not operating at an adverse level of service, and that the memorandum was not an endorsement of the proposed method. (Spikowski, Tr. 1937-39; Jackson, Tr. 741- 42, 978-79; Loveland, Tr, 1206-07; Daltry, Tr. 2637-38, 2645). WGC's Calculations Under DCA Rule Under the DCA DRI transportation policy rule, the County was specifically authorized to impose greater monetary mitigation than the required proportionate share contribution minimum under the DCA rule. The "DCA rule" proportionate share of $14.6 million calculated by WGC witness Jackson on August 31, 1990, using assumptions taken from DCA witness Bittaker and of $12 million determinined by Jackson on the last day of hearing are questionable and inapplicable. (Jackson, Tr. 1006, 3560-61, 3571-72; WGC Exhibit 95). The August 31, 1990, calculation underestimates the proportionate share by failing to cumulate the impacts of Gateway trips from 1990 to 2000 as should have been done. That understatement on one road link alone was shown to be $850,000. This calculation also ignores significant environmental, permitting, and right-of-way cost and acquisition problems related to an assumed four-lane improvement on Penzance Road. The analysis inexplicably assumes also that all Gateway DRI trips will be removed from major portions of Daniels Road and put on Penzance Road. The only improvement to Penzance Road presently under consideration is an extension of a two-lane road. Even that improvement will be extremely controversial environmentally, due to a proposed crossing of the Six Mile Cypress Slough. Permitting for another road crossing of the Six Mile Cypress Slough took twelve years and permitting related to this route has not begun. Problems with the proportionate share calculation under the DCA rule proposed by Jackson also included a $1 million per mile understatement of the actual cost of improving Daniels Road as determined by witness Brown. (Jackson, Tr. 777, 1008-13, 1015-23, 3572-73; Segal-George, Tr. 1185, 1189; Brown, Tr. 2521, 2535-36; Hall, Tr. 3062-63; Respondent's Exhibit 739). Mitigation as Percentage of Year 2000 Road Costs Another mitigation method suggested by WGC was to assess WGC $12.4 million as a percentage of total costs for new roads needed in the County for growth between 1987 and 2000, because Areas 1 and 2 trips would constitute 5% of new trips in the County during that time period. However, the supporting testimony and mathematical assumptions used by WGC witnesses Kendig and Jackson for this calculation were confusing and questionable and County witnesses identified a number of infirmities in that approach. Moreover, it is noted that no regulatory agency in the State has ever used this methodology in analyzing proportionate share mitigation. Accordingly, the proposed mitigation method should not be used. (Kendig, Tr. 256-64; Jackson, Tr. 709, 744, 956-61; C. Swenson, Tr. 1357-58; Hall, Tr. 3048; WGC Exhibit 42). WGC's Independent Impact Fee Analysis At final hearing, WGC witness Jackson maintained that the best method of determining the transportation mitigation owed for Gateway Areas 1 and 2 was by independent impact fee calculation approach provided for under the 1989 and 1990 Lee County road impact fee ordinances and that the resulting dollar mitigation was $14.6 million. The 1989 impact fee ordinance established specific criteria and procedures to be followed when a developer proposes to use an independent impact fee calculation rather than standard impact fee rates. However, witness Jackson did not have the information needed to do an independent calculation in accordance with the ordinance and did not submit any such calculation in accordance with the ordinance before final County action on the Area 2 DO in December 1989. (Jackson, Tr. 751-52, 795-96, 799-800, 973; WGC Exhibits 85 and 94; Respondent's Exhibits 564 and 891). The calculation proposed by Jackson makes assertions that did not go through the required pre-review procedure established by the ordinance and lacks supporting documentation that should be subjected to review. Indeed, the ordinance established a rational administrative procedure for such calculations and does not allow for adjustment outside its terms. (Nicholas, Tr. 3420-21, 3458-61). DRI Proportionate Share v. Impact Fee Mitigation Both sides agree that the DRI proportionate share approach under the DCA rule and the County variation and the impact fee approach are two different methods unlikely to produce the same dollar amount mitigation requirements. WGC representatives were aware of this during review of AMP 2. Other County DRIs have had proportionate share mitigation imposed that was greater than County impact fees. One such example is the Airport Expansion DRI which had a proportionate share that was $5 million more than impact fees. (Jackson Tr. 811; C. Swenson, Tr. 1354-56, 1389-90; Hall, Tr. 3118-19, Nicholas, Tr. 3391-92; Anderson, Tr. 2031; Spikowski, Tr. 1810-13; Respondent's Exhibit 682). The proportionate share approach is preferable for DRI transportation mitigation because it is site-specific and precise, focused on DRI traffic near the DRI and the identification of specific roads that are significantly impacted by traffic reasonably attributable to the DRI. This approach also considers the fact that trips to and from the DRI will congregate around the DRI, cause the most congestion there, and therefore result in needed mitigation where those trips are traveling. The nature of the proportionate share approach moots WGC's argument that development of Gateway will not alter total County growth since a theoretical shift of new population to a DRI should also theoretically result in fewer road needs in less developed portions of the County. (Hall, Tr. 3119, 3328, 3346-47; Kendig, Tr. 253). The DCA firmly believes that a DRI proportionate share approach is preferable to local road impact fees to mitigate a DRI's road impacts. This is because impact fees and a DCA rule proportionate share calculation can differ, DRI exactions are site-specific, and different mathematical formulas are used. For example, while the impact fees charged a DRI in one location versus another could be the same, the proportionate share calculation for that same DRI could differ by several million dollars. (Beck, Tr. 1978-79, 1981). Impact fee methodology is based on simplified averaging assumptions that do not relate to the impact of a particular project on any particular roads and that do not consider the actual conditions of those roads. It is important to consider specific levels of service on specific roads to determine the total magnitude of the problem. The impact fee approach in the County only calculates the hypothetical lane miles that are projected to be used by a project. Moreover, the impact fee formula does not identify specific links that will have trips on them from a DRI or look at whether a road is operating beyond capacity. Further, the impact fee ordinance does not fund any particular roads or implement any County long-range road improvement plan. Finally, while a proportionate share approach tries to be project specifics an impact fee uses averages. (Hall, Tr. 3118-19, 3142, 3346-47; C. Swenson, Tr. 1364-65, 1431; Jackson, Tr. 972, 980-81; Mierzejewski, Tr. 1146-47, 1179-80; Fishkind, Tr. 1285) Impact fees are based on averages and several simplifying assumptions: all new developments are average; all types of development proceed evenly; roads can be built one foot at a time as fees are collected; site- specific or development-specific problems are handled at development or DRI approval stage because they are assumed away at the later building permit stage when impact fees are collected; and each new development sends its trips to a destination where another impact fee is paid. The impact fee approach allocates the fair share cost of road facilities on a road capacity basis for an average road, whereas a DRI proportionate share looks at specific improvements needed. (Nicholas, Tr. 3400-02, 3439-40, 3506-07). When the DCA developed its DRI transportation policy rule, and since that time, it has been lobbied by various interests to adopt an impact fee approach to DRI mitigation but that approach has always been rejected. The reasons for rejection include the fact that impact fees are calculated only to mitigate local impacts while a DRI must mitigate regional impacts. Proportionate share "pipelining" also causes road improvements to occur more expeditiously than impact fees which are paid at the building permit stage and which must be pooled until there is enough money to fund a road improvement. Also, impact fees can be spent anywhere in an impact fee benefit district, while proportionate share "pipelining" generally results in improvements of roads near the DRI. (Beck, Tr. 1963, 1979, 1980-81, 1997-98). It was established that the County did not adopt its impact fee ordinance as the sole method of transportation impact mitigation. The ordinance was intended to be in addition to other County regulatory activities, including DRI regulation. (Nicholas, Tr. 3413-16; WGC Exhibit 85). There are a number of general reasons, including the project-specific nature of a proportionate share, why the dollar amounts calculated under the DRI proportionate share approach and an impact fee differ. A proportionate share contribution for a DRI includes mitigation of regional impacts and logically requires mitigation above local impact fees for local roads. Even if there is no local impact fee a DRI must mitigate its regional transportation impacts through the DRI process. In practice, private developers also find that DRI exact ions commonly exceed impact fees because they may cover both regional and local impacts and impact fees are only charged for local road impacts. In fact, the transportation mitigation required for Gateway Area 1 was a DRI proportionate share exceeding impact fees. The Area 1 DO also made it clear that the proportionate share should be imposed, even if an independent impact fee calculation reducing standard fees was performed. (Crawford, Tr. 2841-42; Beck, Tr. 1964, 1973, 1978-79; Hopping, Tr. 2608; Jackson, Tr. 778; Respondent's Exhibit 107). There are additional reasons why impact fees and DRI proportionate share calculations may vary. The County impact fee ordinance was designed to keep fees as low as possible. The road construction and right-of-way costs assumed in the most recent County impact fee study are conservative due to exclusions of a number of items from the cost base, including road projects with high environmental mitigation costs, toll facilities, urban interchanges, and business damages to and damages for destruction of buildings on right-of-way property. Indeed, the impact fee average costs for construction and right-of- way may be 20 to 40 percent below median, based on those factors. On the other hand, a DRI proportionate share may be greater because it is designed to pay for the cost of major improvements up front in exchange for development approval in advance of actual road capacity. (Nicholas, Tr. 3383; C. Swenson, Tr. 1345-47, 1350-51, 1364-65, 1371, 1432). County witness Hall identified three site-specific reasons that account for the present value difference between impact fee and DRI proportionate share amounts for Gateway, all relating to the roads in the vicinity of Gateway. First, Interstate 75 to the west of Gateway functions like a "Great Wall of China" where it is easy to travel along the top but difficult to pass through. There are only three crossings of I-75 available in Gateway's vicinity. Second, there is no traditional grid pattern of streets in Gateway's vicinity. Those grids are essential to disperse traffic, but expensive to implement. Third, the roads that have surrounded Gateway and need to be improved as a result of its and other development are two-lane roads. These three factors call for very expensive solutions, which an independent impact fee method cannot address because it does not focus on specific roads and their locations and conditions. (Hall, Tr. 3044-48). When inflation is taken into account, the difference between the DRI proportionate share and impact fees for Gateway Areas 1 and 2 is relatively narrow. This finding comports with the testimony of County witnesses Nicholas, C. Swenson and Hopping. (C. Swenson, Tr. 1353-54; Nicholas, Tr. 3393-98; Hopping, Tr. 2618; Respondent's Exhibits 731, 891, 896 and 897). L. Affordable Housing The original DO granted to WGC the right to develop 19,932 dwelling units subject to the following housing condition found in paragraph 51: WGC shall cause to be provided a range of housing types to be addressed during the Area Master Plan review. The amendment to the original DO adopted on January 4, 1990, provided the following conditions relative to housing in paragraph J: WGC will provide a full range of housing types in Area 2, in conformance with the Lee Plan definition of New Community. WGC shall ensure that appropriate levels of low and moderate income housing will be provided within Gateway. When 1990 census results are available (approximately 1992), these results shall be analyzed to determine if a minimum of 10% of all new and existing housing units are attainable to low and moderate income families (utilizing the Census Bureau definition). If the County determines that this cannot be verified, then Gateway Areas 1 and 2 shall be required to provide the appropriate levels of such housing. WGC contends that the condition in paragraph 2. is unwarranted and that the County has no basis for imposing this condition on a previously approved DRI, particularly in light of the condition in paragraph 51 of the original DO. In its revised position adopted on September 5, 1990, the County proposed that approval of Area 2 be conditioned on amending paragraph 51 of the 1985 DO Condition to read as follows: WGC shall demonstrate to the satisfaction of the Board of County Commissioners the existence of, or cause to be provided a range of housing types (e.g., a full mix of housing types for a full range of household incomes, including low and moderate incomes) that will enable people to find adequate housing reasonably accessible to their places of employment within the Gateway community. The County would further condition approval of Area 2 on making the requirement applicable for all future development approvals. (Respondent's Exhibits 606 and 742). This compromise proposal is reasonable and is supported by the evidence because it: Removes the 10% countywide affordable housing criterion, which is no longer a requirement of the County's comprehensive plan; Ties together housing and employment, like the statutory criterion for DRI review (Subsection 380.06(12)(a)5., F.S.) which is currently the subject of emerging DCA policy; Is consistent with the linkage between housing and employment which is a basic rationale for Gateway's New Community classification under the County's comprehensive plan; and Recognizes the advantage of using current census data, among others, during each incremental review. (Cook, Tr. 2337, 2344, 2351; Keyes, Tr. 1519-20, 1563; Beck, Tr. 2006-09; Spikowski, Tr. 1802-03, 1806; Starnes, Tr. 2451, 2507, 2510-11; Kendig, Tr. 216, 218, 224-225; Schmoyer, Tr. 118-119). Airport-Related Restrictions The Southwest Florida Regional Airport (the airport) in Lee County officially opened in May 1983, before approval of the Gateway DRI. It is located on approximately 3,515 acres to the southeast of the Gateway DRI. The original 1977 master plan for the airport recommended establishment of airport noise/hazard zones near the airport and they were adopted as part of Lee County Ordinance No. 78-12. A portion of the property now owned by WGC was included in a zone category prohibiting residential development. Those zones were delineated by quarter-, half- and full section lines to reflect the fact that they were based on annual average, not peak season, noise conditions and to avoid splitting small parcels between zones. In 1985 and 1987, the airport conducted a Federal Aviation Regulations Part 150 Noise Compatibility Study, which also recommended adoption of airport noise zones to restrict development in areas around the airport based on noise contours. (Barnes-Buchanan, Tr. 2059- 60; WGC Exhibit 17; Respondent's Exhibits 682 and 697). The Lee County Port Authority (Port Authority) reviews developments in the vicinity of the airport for issues related to land use and noise compatibility and use of navigational airspace under various state and federal laws. In agreements for airport funding, the Port Authority has assured the federal government that it will restrict land uses near the airport for compatibility with airport operations. These regulations mandate that the Port Authority prevent airport hazards, which are structures or land uses that obstruct airspace needed for aircraft flights or that are otherwise hazardous to aircraft. (Barnes-Buchanan, Tr. 2049-50, 2053-54). The County has implemented the federal and state requirements by adopting the 1987 Airport Part 150 Noise Compatibility Study, 1989 amendments to its local comprehensive plan under Chapter 163, Florida Statutes, and 1989 zoning code amendments in Ordinance No. 89-31. (Barnes-Buchanan, Tr. 2042, 2053- 54; Respondent's Exhibits 236, 410 and 697). The 1989 County local comprehensive plan adopted January 31, 1989, included a land use policy establishing airport noise zones as overlay designations on the future land use map. Zone 2 does not allow mobile homes. Zone 3 does not allow residential uses, churches, libraries, schools, hospitals, correctional institutions, or nursing homes. The policy also provides that prior to issuance of all building permits and development orders in Zones 2 and 3, noise and avigation easements must be dedicated to the County by the property owner. (Respondent's Exhibit 236). In developing the avigation easement concept, the County recognized that, although the location chosen for the airport was remote, it was important that the airport have room for expansion. In determining what kind of regulations to impose on land uses near the airport, the County decided that, rather than forbidding certain types of development, it would allow less noise sensitive development as an alternative. The County has regulations that may deny noise sensitive development incompatible with the airport to protect the public health, safety and welfare. Indeed, WGC concedes that the County also can prohibit construction of tall structures due to their adverse effects on flight safety, human safety and radar interference. (Spikowski, Tr. 1920; Barnes-Buchanan, Tr. 2071-72; Dolan, Tr. 658). The Part 150 study and 1989 comprehensive plan provisions were implemented through August 31, 1989 zoning code amendments in Ordinance No. 89- 31, which substantially revised Section 483 of the zoning code. The purposes of the regulations in Section 483 of the zoning code include promotion of the "maximum safety of aircraft" at county airports, the "maximum safety of residents and property" near the airports, establishment of building height standards for lands beneath aircraft flight paths and regulation of land uses in airport noise zones. The County declares that airport obstructions that may be hazardous to aircraft operations and persons and property in their vicinity are public nuisances and that it is necessary to the public health, safety and welfare that the creation of airport obstructions and incompatible land uses in the airport noise zones be prevented. (Barnes-Buchanon, Tr. 2053-54, 2080; Respondent's Exhibit 410; WGC Exhibit 112). A portion of the 1989 zoning code amendments creates airport noise zones in the vicinity of the airport, with Zones 2 and 3 implementing the land use restrictions contained in the 1989 comprehensive plan. The locations of Zones 2 and 3 are determined by legal descriptions contained in the zoning code, which followed the quarter-, half- and full-section approach in the 1978 county regulations for the same reasons. These legal descriptions are based on noise contours in the 1987 Part 150 study. The zoning amendments also require execution and recordation of a noise and avigation easement to the County before issuance of building permits or subdivision platting in Zones 2 or 3. (Barnes- Buchanan, Tr. 2060-61, 2069; Dolan, Tr. 586-87; Respondent's Exhibit 410; WGC Exhibit 112). Under the 1978 County noise zones, which remain in effect in addition to the 1989 zoning code designations, a portion of Gateway along its southern boundary has been and is located in Zone 3, prohibiting residential and other noise sensitive uses. The 1978 noise zones were expanded under the 1987 Part 150 study to include areas based on a different noise contour. A portion of Gateway along its eastern boundary also currently lies within Airport Noise Zone 2 under the 1989 comprehensive plan and zoning code. (Barnes-Buchanan, Tr. 2057, 2069, 2081-82; WGC Exhibit 115). The avigation easement required under the comprehensive plan and zoning code has several public purposes, including assurance of noise and other compatibility of neighboring land uses, regulation of tall structures and airport hazards, and provision of notice of airport operations to prospective buyers. A form that has been used as an "Avigation Easement and Release" provides for the grant by the landowner of a perpetual avigation easement and right of flight through navigable airspace above the owner's property and, separately, the release of claims by the landowner as a result of airport operations or aircraft activities and noise levels. The easement regulates land uses on the ground by precluding landowners from interfering with aircraft flights over the property. The release is intended to cover normal airport and aircraft operations. (Barnes-Buchanan, Tr. 2068A, 2072, 2085-86, 2091-92; WGC Exhibit 31; Respondent's Exhibit 721). The 1989 Area 2 DO on appeal included certain airport-related conditions. They implemented the 1989 comprehensive plan and zoning amendments by requiring that "[p]rior to the issuance of all building permits and development orders in Airport Noise Zones 2 and 3 (as defined in the 1989 Lee Plan) noise and avigation easements must be dedicated to Lee County." This language in the 1989 Area 2 DO was mutually agreed to by the Port Authority staff and WGC, and WGC anticipated such conditions. Indeed, WGC representatives had assumed as early as March 1988 that the airport would want to impose avigation easements as conditions of the next Gateway AMP. Language included in the final 1989 DO and a statement concerning inclusion of avigation easement language as required in the comprehensive plan were read over the telephone to WGC's manager of operations by Port Authority staff and WGC agreed the language was acceptable. (Barnes-Buchanan, Tr. 2048-49, 2053, 2062-64; Fisher, Tr. 2093- 98; Widmer, Tr. 1746-47; Anderson, Tr. 2034-35; Dolan, Tr. 582-83; Respondent's Exhibits 350, 356, 371, 381 and 895). At final hearing, WGC raised questions about the location of Airport Noise Zones 2 and 3 on the Gateway property. However, WGC failed to avail itself of any administrative remedies available to seek changes to the location of Noise Zones 2 and 3 on Gateway property. Although WGC brought the issue to the attention of Port Authority staff in November 1988, or prior to adoption of the 1989 comprehensive plan, it did not make a written request to adjust the noise zones then, did not file an administrative challenge to the comprehensive plan concerning location of the noise zones, did not seek a variance from the zoning amendments locating noise zones, and did not indicate problems with the location of the noise zones after adoption of the comprehensive plan on January 31, 1989. (Dolan, Tr. 561-63, 572-76, 588-89, 670-71; Barnes-Buchanan, Tr. 2069- 70, 2072-73) None of the maps presented by WGC at hearing showing noise contour lines relating to Noise Zones 2 and 3 was based on the Part 150 Study, although one WGC map (WGC Ex. 113) was so labelled. In fact, the WGC maps were based on unmonitored contour lines from the 1990 airport master plan update, which are conceptual lines that have not been adopted by the FAA as part of the Part 150 study. The last monitored noise contour lines are in the 1987 Park 150 study, which was used for the legal descriptions contained in the 1989 Zoning Code amendments. WGC conceded that the best existing monitored information is in the 1987 Part 150 Study, which contains a map of those noise contours. (Dolan, Tr. 584-88, 593-97, 654; Barnes-Buchanan, Tr. 2070-71, 2078-79; Respondent's Exhibit 697; WGC Exhibits 17, 113-115). The current designation of certain Gateway lands as Noise Zone 3, as carried forward from the 1978 zoning regulations, is based on inclusion of a northern general utility runway in the airport layout. The Noise Zone 3 designation on Gateway can be removed once the FAA approves the Port Authority's recommendation to remove that runway. Until then, it is prudent for planning purposes to ensure the Zone 3 protection. WGC concedes that the Noise Zone 3 issue is moot once the FAA acts to implement the Port Authority's recommendation and that WGC has not actively asked for deletion of the Noise Zone 3 overlay. (Barnes-Buchanan, Tr. 2069-70, 2081-82; Dolan, Tr. 589-90, 670). The land uses proposed in the AMP 2 application for Gateway lands included in Noise Zone 3 under the comprehensive plan are business and commercial uses, as allowed in that zone. The proposed land uses included in Noise Zone 2 are a utilities site, a park site, multi-family residential, commercial and school uses, all of which are allowed. If there is any error in mapping of Noise Zones 2 or 3 in Gateway, WGC knows of no logic for changing the proposed land uses in either zone and no proposals to do so were made. WGC presented no quantification of damages to WGC's property interest as a result of the avigation easement in favor of the County. (Dolan, Tr. 659-61). To clarify its intent concerning avigation easements, the County has proposed to incorporate a change providing that only the effects of normal airport operation, aircraft activities and noise levels would be covered by the easement. (Spikowski, Tr. 1807; Respondent's Exhibit 742). Other 1989 Development Order Conditions Fiscal Conditions Doctor Nicholas, the County's outside fiscal expert who provided fiscal analysis to the County in the development of the 1984 comprehensive plan testified: It became clear very early in the planning process that Lee County had more areas designated for development than were required to accommodate the anticipated growth and that it would be economically infeasible for Lee County to attempt to provide publicly financed infrastructure to a sprawled form of development. This policy decision ultimately led to the comprehensive planning classification of Gateway as a "New Community" requiring private, not public, provision of infrastructure. (Nicholas, Tr. 3372-75). In reviewing WGC's original ADA, County staff determined that neither it nor subsequent submittals had demonstrated that Gateway would be developed as a freestanding economic unit and would not impose negative fiscal impacts on the County, as required by the New Community provision of the Comprehensive Plan. Therefore, paragraph 46 of the 1985 Gateway DO provided that: WGC shall demonstrate with each Area Master Plan submittal that Gateway will not impose a negative fiscal impact upon the County. The first Area Master Plan will be based upon projections; subsequent Area Master Plan[s] shall include appropriate data from previously approved Area Master Plan[s] to support compliance with this condition. (Respondent's Exhibits 63 and 809). The DO Amendment for Area 1 added Condition H, "[c]onsistent with Gateway Development Order Condition No. 46:" WGC shall be required to monitor fiscal impact and present evidence of fiscal neutrality as part of its next Area Master Plan submittal, but in no case later than 5 years from the effective date of approval of Area Master Plan 1. Should Gateway not be determined to be fiscally neutral or fiscally positive, WGC will be required to remedy the deficiency prior to approval of the next Area Master Plan. The assumptions to be monitored include, but are not limited to: The number of dwelling units built and other constructed improvements and their sales prices; Percentage of units receiving homestead exemption and other applicable exemptions; The number of undeveloped acres and their value as assessed by the Lee County Property Appraiser; Factors relating to property taxes (assessment ratio, cost of sale factor, millage rate); Factors relating to expenditures (per capital expenditures for capital and operating); Factors relating to revenues; Cost factors relating to parks (acquisition and development cost per acre and acreage standards for parks); Rate of commercial development as compared to the initial projections; and The accuracy of the fiscal model used by WGC for projecting costs and revenues for the Gateway development. By its terms, this requirement applies to Area 2 and possibly "the next Area Master Plan." (Respondent's Exhibit 107). WGC's fiscal analysis for Area 2, dated April 19, 1989, stated: It is premature to monitor the fiscal impacts from Area 1 since there are certificates of occupancy only for the model center and offices. Until more construction activity occurs, monitoring should be delayed. Fairly soon after WGC submitted the Area 2 fiscal analysis its economic consultant discovered an error in the development absorption period used (20 years instead of 10 years). However, WGC decided not to call the error to the attention of the County during its review of Area 2. The error was corrected shortly before final hearing in the instant case. (Fishkind, Tr. 122 3-5, 1265- 6; WGC Exhibits 103 and 104). In the staff report to the Local Planning Agency dated June 5, 1989, County staff analyzed the WGC fiscal analysis for Gateway AMP 2 as follows: Gateway's economic consultant has done an analysis of the fiscal impacts of the project using a range of variables in response to staff questions. Although staff generally accepts the various computer runs, there are still outstanding concerns and questions: Any computer model is only as accurate as the variables used in the calculations. In the case of a long term project such as Gateway, the major assumption is that the project will be constructed and sold as it is currently phased, planned and priced. In other words, the fiscal impact model assumes from the beginning the project will be an economic success. If this assumption is accurate, the project will, after 3 to 5 years, be yielding a net positive cash flow to local government. However, the future fiscal impacts are difficult to predict due to changes in taxable values, residential and commercial development variables, and the project phasing and construction period. If any of these items should change significantly, the fiscal impact of the project could be very different. Gateway has a requirement (Area 1 Development Order Condition 46) to perform a fiscal analysis for each area when submitted and to monitor the fiscal impacts of previously submitted areas. It is not possible to monitor Area 1 because there has been no substantive construction for use in the fiscal impact model. When originally submitted, the phasing schedule estimated that by 1990 there would be 2,080 dwelling units and 119 acres of commercial development existing in the project. DRI projects typically do not meet their phasing schedules, and this invalidates the fiscal impact model. As part of the DRI annual monitoring report required by Chapter 380, Florida Statutes, Gateway should provide sufficient information to allow staff to update the fiscal impact model rather than having to wait until the submission of the next area plan in addition to the existing monitoring requirement. The applicant's consultant has added one variable not generally used by staff. The variable is the tax dollars generated by the undeveloped land that is part of the project. The addition of this variable has the effect of causing the project to demonstrate a net positive cash flow much sooner than it normally would. The fiscal impact model uses average county values and assumes that all locations of all projects in the county are equivalent when, in fact, they are not. For the above reasons staff recommends that there be no further Area Master Plan submittals until Areas 1 and 2 have been developing for at least three to five years and there is sufficient information to monitor and update the impacts from Areas 1 and 2. (WGC Exhibit 128). In the staff report to the County dated July 31, 1989, County staff abbreviated their comments on the fiscal analysis as follows: Gateway's economic consultant has done an analysis of the fiscal impacts of the project using a range of variables in response to staff questions. The concern with fiscal impact analysis is the long-term build-out of the project. Gateway has a requirement (Area 1 Development Order Condition 46) to perform a fiscal analysis for each area when submitted and to monitor the fiscal impacts of previously submitted areas. It is not possible to monitor Area 1 at this time because there has been no substantive construction for use in the fiscal impact model. When originally submitted, the phasing schedule estimated that by 1990 there would be 2,080 dwelling units and 119 acres of commercial development existing in the project. DRI projects typically do not meet their phasing schedules. Gateway has provided language that would allow for monitoring at five-year intervals until it is determined that fiscal neutrality occurs. Staff is reviewing this language, which initially appears to resolve this issue. (WGC Exhibit 133). At the December 11, 1989, final County hearing leading to adoption of the 1989 DO for Gateway Area 2, WGC's economic consultant stated that: The last thing I would offer for your consideration is that this project generates a rather large fiscal surplus of the county budget after accounting as best we can for fiscal impacts. That was one of the conditions that this Commission required of Area One and now requires of Area Two. And we have a monitoring provision in the development order that as soon as there is support development to monitor we'll be able to get a better appreciation on what it is. But the numbers are -- the positives are quite large. I'm confident after monitoring that's how the equation will turn out. The County responded by adding Paragraph 46b. to the 1985 DO: 46b. If staff can not determine at the time of the Area Master Plan submittal whether or not Gateway will impose a negative fiscal impact upon the County, due to the lack of available data or lack of agreement on the fiscal model, then WGC shall submit a fiscal monitoring analysis in five years from the date of the most recent Area Master Plan approval, and every five years thereafter, until staff has sufficient data to undertake a valid analysis on the fiscal neutrality issue. WGC accepted this treatment of the issue. (Gibbs, Tr. 1248; Respondent's Exhibits 588 and 606). There is general agreement that, in the long run, Gateway's overall fiscal impact on the County should be positive. Although the point that it becomes positive has not yet been shown through monitoring, WGC suggested that any general revenue surplus could be used by the County to offset Gateway's road impacts. WGC also acknowledged, however, that the County could have higher priorities to which such funds may be devoted. WGC's fiscal analysis, dated September 13, 1990, points out that, at least in the short run, the County's expenditures, like those of local governments throughout much of Florida, substantially exceed revenues. The general policy throughout the federal, state and local governments is that transportation should be financed through user fees and "that general taxation should not be used to finance transportation unless there is a clear and extraordinary benefit accruing to the general public." The County does not utilize ad valorem tax revenues to build roads. (Koste, Tr. 611; Fishkind, Tr. 1228, 1296; Spikowski, Tr. 1857; Nicholas, Tr. 3365-66, 3368, 3382-83, 3428-30; Respondent's Exhibits 10 and 236). In its petition filed in this case, despite its earlier agreement, WGC asserted that paragraph 46.b. "goes far beyond the substantive scope of review of an area master plan under the Gateway DRI Development Order." Accordingly, in an effort to be fair to WGC, the County has proposed a less stringent requirement which deletes paragraph 46.b. and states in lieu thereof: "Condition H of Master Plan 1 shall also apply to Area 2." (Gibbs, Tr. 2305-06; Respondent's Exhibit 742). WGC's corrected fiscal analysis for Area 2 dated September 13, 1990, and submitted at hearing in the instant case, remains a projection and does not purport to contain the monitoring data required for Area 1. WGC conceded that its projections for non-residential development at Gateway are "aggressive". It is reasonable, therefore, to leave Condition H of the Area Master Plan 1 DO Amendment applicable to Area 2 as proposed by the County. In addition to proposing a revision for fiscal conditions, County planning staff has proposed other minor changes to the 1989 DO on appeal, which are set forth in respondent's exhibit 742. (Gibbs, Tr. 2305-06; Fishkind, Tr. 1276-76; WGC Exhibit 104; Respondent's Exhibit 742). Abandonment of DRI In the 1989 DO which was appealed, the County added a condition to the 1985 DO related to the abandonment of the Gateway DRI. It provided that if no significant development activity occurred for five years, the DRI would be required to cease development pending further County consideration. After further examination of state regulations concerning abandonment, County planners concluded that this condition was unnecessary, and the County has subsequently proposed to delete this condition. This proposal resolves an issue raised by WGC. (Spikowski, Tr. 1803, 1888; Respondent's Exhibit 742). Protective Services The 1989 Area 2 DO on appeal contained a provision limiting credits toward impact fees imposed for police, fire and emergency medical protective services to 57% of the value of any land dedicated by WGC for such purposes. After further consideration, County planners concluded that provisions related to impact fee credits for land dedications by WGC for provision of these services should be instead subject generally to the credit provisions of the protective services impact fee ordinance. The County now proposes to delete the 5% limitation and provide that WGC would be eligible for impact fee credits based on the fair market value of protective services sites dedicated under the terms of impact fee ordinances addressing protective services needs. This resolves an issue raised by WGC. (Spikowski, Tr. 1806; Respondent's Exhibits 606 and 742). Roadway Maintenance The 1985 DO contained a provision requiring that WGC or a Community Development District created by WGC pay for operation and maintenance of all roads within the Gateway DRI, except for arterial and collector roads built as a result of the Lee County Official Trafficways Map. The 1989 DO on appeal modified this provision to require the County to pay the operation and maintenance costs for arterial roads serving a countywide function and shown on the Official Trafficways Map, while leaving responsibility for operation and maintenance of other arterial up to future Board determination. To address this issue raised by WGC, the County has now proposed to reinstate the original 1985 DO condition, which was unchallenged by WGC. (Respondent's Exhibits 505, 742, and 809). General Governmental Facilities and Park Site Hearing Procedures The 1989 Area 2 DO contained provisions related to procedures for locating sites within Gateway for general governmental facilities and park sites. These provisions established that if WGC and County staff could not agree on location of such sites, the issue would be sent to the County's Hearing Examiner for resolution. The County has proposed to add procedural details for appeals to the Hearing Examiner making it clear that such proceedings will be administrative appeals like others governed by the provisions of the Lee County Zoning Ordinance. (Spikowski, Tr. 1806-07; Respondent's Exhibits 606 and 742). Wildlife and Vegetation Condition The parties have agreed that a stipulation and agreement dated September 6, 1990, resolves the appeals in regard to the vegetation and wildlife condition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission adopt an amended final development order for Gateway Area 2 approving the application subject to conditions. Those conditions should incorporate the proposed September 5, 1990 revisions to the County's 1989 Area 2 Development Order, including the County's October 1990 determination of the required transportation proportionate share contribution and the further payment option described in conclusion of law 213. Respectfully submitted this 14th day of January, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of January, 1991. APPENDIX Petitioner WGC: 1-2. Partially adopted in finding of fact 5. 3. Rejected as being unnecessary. 4-5. Partially adopted in finding of fact 5. 6. Covered in preliminary statement. 7-8. Rejected as being unnecessary. 9-12. Covered in preliminary statement. Partially adopted in finding of fact 15. Partially adopted in finding of fact 1. 15-16. Partially adopted in finding of fact 15. 17-21. Partially adopted to the extent they are consistent with findings of fact 11 through 25. 22-28. Adopted in conclusion of law 203 to the extent the undersigned found the project is not an AMDA. 29. Partially adopted in finding of fact 15. 30. Partially adopted in finding of fact 11. 31. Partially adopted in finding of fact 15. 32. Partially adopted in finding of fact 20. 33-34. Partially adopted in finding of fact 16. 35-36. Partially adopted in finding of fact 19. 37. Partially adopted in finding of fact 42. 38. Partially adopted in finding of fact 38. 39. Partially adopted in finding of fact 17. 40. Partially adopted in finding of fact 18. 41. Partially adopted in finding of fact 19. Rejected as being a conclusion of law. Partially adopted in finding of fact 18. 44-46. Partially adopted in findings of fact 17-25. 47. Partially adopted In finding of fact 32. 48. Partially adopted in finding of fact 35. 49. Partially adopted in finding of fact 42. 50. Partially adopted in finding of fact 38. 51-52. Partially adopted in finding of fact 37. 53-58. Partially adopted in finding of fact 38. 59-63. Partially adopted in finding of fact 64-65. Partially adopted in finding of fact 9. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. 68-69. Rejected as being a conclusion of law. Covered in conclusion of law 201. Rejected as being contrary to the more credible evidence. 72-77. Partially adopted in finding of fact 1. Rejected as being unnecessary. Rejected as being contrary to the more credible evidence. 80-81. Rejected as being unnecessary 82-83. Partially adopted in finding of fact 193. 84-86. Partially adopted in findings of fact 183-192. 87-105. Partially adopted in findings of fact 164-167. 106-111. Partially adopted in findings fact 168-181. 112-116. Partially adopted in finding of fact 194. 117-119. Partially adopted in finding of fact 196. 120. Rejected as being contrary to the evidence. 121-127. Partially adopted in finding of fact 195. 128-131. Partially adopted in findings of fact 132-134. 132-137. Partially adopted in finding of fact 196. 138-140. Partially adopted in finding of fact 197. 141-315. Partially adopted in findings of fact 43-163. Petitioner DCA: 1. Partially adopted in finding of fact 2. 2-3. Partially adopted in finding of fact 5. 4. Partially adopted in finding of fact 17. 5. Partially adopted in finding of fact 20. 6-7. Partially adopted in finding of fact 32. 8. Partially adopted in finding of fact 35. 9. Partially adopted in finding of fact 63. Rejected as being unnecessary. Partially adopted in finding of fact 44. Partially adopted in findings of fact 97-99. 13-14. Partially adopted in findings of fact 94-95. Partially adopted in findings of fact 96-97. Partially adopted in findings of fact 61-100. Partially adopted in finding of fact 82. Partially adopted in finding of fact 92. 19-20. Partially adopted in finding of fact 130. 21. Rejected as being a conclusion of law. 22-23. Partially adopted in finding of fact 19. 24. Partially adopted in finding of fact 154 25-27. Partially adopted in findings of fact 72 and 155. 28. Partially adopted in finding of fact 95. 29-30. Partially adopted in finding of fact 96. Covered in preliminary statement. Rejected as being contrary to the more credible evidence. Note -- Where proposed findings have been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the more credible evidence, or a conclusion of law. Respondent: Respondent's proposed findings of fact have been substantially adopted in this Recommended Order. COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Carlton Building, Room 415 Tallahassee, FL 32399-0001 Charles L. Siemon, Esquire Andrew C. Stansell, Esquire Laura E. Peck, Esquire 2 East Camino Real Boca Raton, FL 33432 Peter D. Doragh, Esquire 11691 Gateway Boulevard Fort Myers, FL 33913 M. D. Adelson IV, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Gary P. Sams, Esquire Elizabeth C. Bowman, Esquire Diana M. Parker, Esquire O. Box 6526 Tallahassee, FL 32314 David E. Bruner, Esquire 1114-B North Collier Boulevard Marco Island, FL 33937 James G. Yeager, Esquire 1831 Hendry Street Fort Myers, FL 33901
Findings Of Fact Stipulated Facts Deemed Relevant to Be Found Petitioner is the state land planning agency with the duty and responsibility to enforce and administer Chapter 380, Florida Statutes. The Killearn Lakes project is a planned residential community located north of Tallahassee near Bradfordville in Leon County, Florida. A portion of the Killearn Lakes Project, consisting of Units 1, 2, 3, 4 and 5 (phase I) is vested from Development of Regional Impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. Petitioner recognized the vested rights for said portion of Killearn Lakes in BLIVR-274-037. The vested portion of Killearn Lakes has never undergone DRI review and is not a subject of this administrative proceeding. The remainder of the Killearn Lakes project, consisting of Units 5 (phases II and III), 6 and 7, is not vested from DRI review. Killearn was the sole owner of the non-vested portion of Killearn Lakes during the original DRI review, and is presently the owner and developer of most of the undeveloped portion of the Killearn Lakes DRI. The county is the local government with the jurisdiction to issue DRI development orders, and is the local government with the primary responsibility for administering DRI development orders for the land covered by the Killearn Lakes DRI development order. On November 14, 1974, Killearn filed a DRI application for development approval (ADA) for the non-vested portion of Killearn Lakes. In March of 1976, the Northwest Florida Planning and Advisory Council, District II, issued its Development of Regional Impact Evaluation for Killearn Lakes, Inc. On March 23, 1976, the county held a public hearing pursuant to Section 380.06(7), Florida Statutes (1975), on the Killearn Lakes ADA. The county commission issued a Development of Regional Impact Development Order approving the Killearn Lakes DRI and rejecting the conditions recommended by the Northwest Florida Planning and Advisory Council. No notice of the adoption of the Killearn Lakes DRI development order was, or has ever been, recorded in the Public Records of Leon County. At the time of the adoption of the Killearn Lakes DRI development order, Chapter 380, Florida Statutes, did not require the developer to record a notice of adoption, as is presently required by Section 380.06(15)(f), Florida Statutes (Supp. 1990), which first became effective in 1980. The county has issued every final local permit for the development that has occurred in the Killearn Lakes DRI. The county has not adopted a document entitled "Amendment to the Killearn Lakes DRI Development Order," and no such amendment to the Killearn Lakes DRI Development Order has been rendered to the Petitioner. Development within the Killearn Lakes DRI has not been completed. Central sewer has not been constructed throughout the developed portion of Killearn Lakes DRI. Other Facts Issuance of the Development Order Preliminary to action taken by the county commission which approved the subject development, the Tallahassee-Leon County Planning Commission met on March 18, 1976. It considered the recommendations of the Northwest Florida Regional Planning and Advisory Council related to the project. The recommendations of the Council were: Approval of the project on a phase by phases [sic] basis with necessary permits being granted after review and evaluation of the completed and proposed phases of development; Close monitoring of the drainage methods throughout each phase of development by the Leon County Engineering Department through on-site inspection; Developer is required to obtain a report from the Florida Games and Fresh Water Fish Commission for submission to the Leon County Commission concerning the evaluation of a lake drawdown project before a permit is granted; Developer must provide more information to the Leon County Commission regarding dredge and fill operation prior to the issuing of a permit for each phase of construction; Before the Leon County Commission issues a permit for each phase of development, a review of the upgrading of the Thoamsville [sic] Highway is required from the Florida Department of Transportation; Developer is required to comply with the following two conditions before a permit can be granted: Place hydrants so that all dwellings are within 1000 feet, and commercial property is within 500 feet. Increase water pressure and supply. A phase by phase review of projected growth of the Killearn Lakes Project and a brief impact analysis of Environmental and Natural Resources, Economy, Public Facilities, Public Transportation Facilities, and Housing in the immediate community and region is required before a permit can be issued to continue the Killearn Lakes project on a phase by phase basis. The successful review and evaluation of the above mentioned modifications prior to issuing each phase construction permit is recommended. The local planning group recommended approval of a development order without acceptance of the conditions suggested by the Northwest Florida Regional Planning Council. As mentioned before in Footnote 1, the county rejected all recommendations by that planning and advisory group. According to the minutes of the March 23, 1976 meeting: Mr. Simpson reported that the Planning Commission had recommended granting the development permit of Killearn Lakes without the application of the recommendations of the Northwest Florida Planning & Advisory Council, Inc. Commissioner Vause moved that the report from the Northwest Florida Planning & Advisory Council, Inc. dated March of 1976, be reflected in the minutes as being received and filed and that the Board follow the recommendation of the Planning Commission, Commissioner Marchant seconded the motion. Following very much discussion, Commission Vause amended his motion to adopt the following resolution and to issue a development order as recommended by the Planning Commission, Commissioner Marchant agreed to the amendment and the vote of the Board was unanimous in favor thereof. The Tallahassee-Leon County Planning Commission in its action of March 18, 1976 had not suggested any substantive changes to the ADA. The County Commission did not vote to modify the ADA by changes to the language in the ADA through additions or deletions to the text of the ADA or requirements set forth in the development order or attachments to the development order. Having rejected the recommendations set out by the Northwest Florida Regional Planning and Advisory Council, and offering no other conditions to control the development order other than those contemplated by statutes or rules pertaining to the issuance of the development order, the terms of the development order became those found within the ADA. Deadline for Development Among the topics discussed in the ADA is the date for completing the project. The ADA identifies the project completion date as 1985. This information is provided in accordance with the questionnaire which the consultant to Killearn answered in preparing the ADA. Having examined the Draft Operating Manual for Developments of Regional Impact which had been prepared by the Division of State Planning, the predecessor agency to the Petitioner, it is inferred that the application format/questionnaire recommended by the Division of State Planning was followed in preparing the ADA. The questionnaire contemplates in a number of instances establishment of a concluding date for the project. The evidence presented at hearing did not show that the county made a conscious decision to require submission of the application in the format set forth in the draft operating manual by the Division of State Planning, rather it acquiesced in that protocol on this occasion. There is no evidence that the Division of State Planning had communicated with the county concerning the use of this questionnaire for preparing an ADA, especially as it might pertain to the policy reasons for setting forth a deadline for project completion. Excepting the questionnaire, the Draft Operating Manual for Developments of Regional Impact prepared by the Division of State Planning was not shown to have been made available to the county or the applicant prior to the submission of the application. In particular, the applicant and county were unfamiliar with Section 2.05c. in its statement that all local development orders issued in response to an ADA should include provisions pertaining to the period of effectiveness of the development order and Section 2.07a.(2) pertaining to expiration of the period of effectiveness of the development order as a factor that may require retriggering of the DRI process. By implication, the county was not carrying forward the policy ideas expressed by the Division of State Planning where it urges local government, in the interest of sound planning principles to include a provision in the development order pertaining to the period of effectiveness of that development order and the statement that at the expiration of that period of effectiveness the development order may require a retriggering of the DRI review process. In the abstract, the questions that were answered in the ADA in response to the format contemplated by the Division of State Planning dealing with a concluding date for the project can be seen as associated with the concept of establishing an expiration date for the development order. The answers do not equate to setting out the expiration date as an incorporated requirement countenanced by this development order. Neither does the development order nor the incorporated ADA remind the developer or its successors in interest that there is a deadline for concluding the project beyond which the development order is no longer effective and the possible requirement for retriggering review of the DRI. Under the circumstances, absent some requirement of law not arising from the development order per se, the statements found within the ADA concerning the projects's concluding date are nothing more than an internal planning device for the benefit of the developer and its successors in interests. As an estimate by the applicant it does not express the perception of local government in issuing the development order and is unenforceable. Statutes and rules in effect at the time that the development order was issued, and it is those statutes and rules which control for reasons discussed in the conclusions of law, did not mandate the establishment of deadlines for completing the project, establishment of a period of effectiveness for the development order or a statement setting out the ramifications for not complying with the deadlines for buildout on the possible consequences of operating beyond the period of effectiveness of a development order. More generally stated Chapter 380, Florida Statutes and the rules of the Division of State Planning in existence when the project was considered did not readily explain the application process. It is not accepted that the county in view of the dialogue which took place between various commissioners and representatives of Killearn on March 23, 1976, took official action to extend the deadline set out in the ADA, but the resulting de facto extension of the buildout deadline beyond the effective date set forth in the ADA is irrelevant. The discussion among the commissioners and with representatives of the developer concerning the project completion was inconclusive, because from a parliamentary viewpoint, the county did not act to restate the ADA and by such restatement set forth a project deadline. The county never precluded further development in the DRI area after 1985 absent further DRI review. It did not have to. No deadline was required by law. No legally binding deadline has been imposed. Therefore development may proceed into the future. Sewer Service At The Inception Another item in dispute concerns the need to provide sewer service in the project area and at what point in time. The development order unequivocally requires a sewage treatment system so that units as they are built are connected to that system contemporaneous with their development. The development order does not allow alternative use of septic tanks until a central sewer system becomes available, if it ever does. The introductory portion of the ADA under the report summary speaks of sewer being provided by Talquin Electric Cooperative, Inc. Under the environmental assessments portion of the ADA associated with water quality, Paragraph 19.b.(3)(a), which speaks to possible discharges into ground water of liquid waste states: All units will be connected to a central plant as they are developed. This plant will remove 90 percent of the bio-chemical oxygen demand (B.O.D.) and of suspended solids (Chapter 403, Florida Statutes) and discharge to a land via a land disposal system; no surface discharge, (Figure 19-10). The economic assessments, Paragraph 25, discusses sanitary sewers at pages 59 and 61, as follows: a. Cite amount of sewage expected to be generated by the proposed development and source of treatment facility. Amount generated (added to .04 of Phase I): About 1.4 million gallons per day (mgd) in DRI area. Treatment will be accomplished by Talquin Electric Cooperative for Phases I into IV. The collection system will utilize lift stations (Figure 25-1). Will the design of the sewage system insure that all areas of the development have adequate facilities at all stages of the development? Specify. The Sewage Treatment Plant (STP) and collection system construction will be phased (Table 2) to accommodate this flow as follows: Now ready to start - .040 mgd S.T.P. (Phase (not in DRI area) 1, Unit 5) Until January 1975 - .450 mgd S.T.P. (Phase II, Units 5 & 6) Until mid-1976 - .900 mgd S.T.P. (Phase III, Unit 5+ apt./Condo. & Comm.) 1978 to mid-1982 - 1.800 mgd S.T.P. (Phase IV) or convert .900 mgd S.T.P. to a lift station and pump to City of Tallahassee Talquin Electric Cooperative has a construction permit from the Department of Pollution Control, and operating permit will be issued when the S.T.P. is built, subject to conditions discussed under "discharge to groundwater". The S.T.P. and land disposal site will be located at the northeast corner of Unit 2. Additional acreage, if needed, can be provided at the adjacent school site (Figure 19-10). How does the development's sewage system relate to the county's sewer and water treatment facilities objectives? During Phase IV this responsibility will shift to the City of Tallahassee. 16/ Killearn Lakes sewage then will be treated at the Tallahassee Northeast Treatment Plant (+ 1984). What assurances will the developer provide that such a system will indeed be completed? Construction? Performance bonds? Agreement with Talquin. 15/ Sewer connection to the City of Tallahassee depends on resolution of differences between the City and Leon County. The City/County Technical Coordinating Committee recently passed resolution urging priority action on this matter. Talquin Electric Cooperative builds and operates many total - utilities packages in the area, including sewer systems. It has been in business as a Rural Electric Cooperative for several decades. In addition, in the environmental assessments section, Paragraph 19.b.(2)(a) at pages 7 and 8 dealing with discharges into surface water of detergents and solvents reference is made to commercial and residential sewer service. Figure 19-4, at page 8, related to land disposal speaks of the temporary land disposal site for sewage effluent. Again the section on economics found at page 49 in the ADA comments that Talquin Electric Cooperative is responsible for all utility installation. Table 1, item 25 discusses sewage and notes that all areas to be served by Talquin Electric will be phased into a regional facility in 1984 to meet county objectives. No exception to this requirement is stated. Paragraph 31.c., at page 71, concerning alternative means of providing sewer states: What alternative power, water, sewer and solid waste disposal sources or mixes were considered and evaluated in selecting this particular site? The City of Tallahassee, Leon County, and Talquin Electric Cooperative are the alternative sources and they were selected through a combination of availability, common practice and cost. Contrary to the opinion of the county, this reference is unambiguous and does not contemplate the use of septic tanks at any time as a possible alternative to sewer service. The statement of availability describes the choice between utilities, not the choice between sewer service and septic tanks. Killearn's Agreement With Talquin Electric The sewer service agreement between Killearn and Talquin Electric Cooperative concerning provision of sewer service commented on in Footnote 15 to the ADA addresses provision of sewer service for the entire project controlled by the development order upon request by Killearn with cost or return of the total cost to be guaranteed by Killearn as recited in the agreement. It makes Killearn responsible for depositing funds with Talquin Electric Cooperative as construction work progresses as may be required by Talquin. Those funds must be sufficient to cover Talquin's and Killearn's "actual direct costs related to the installation of said utilities, including engineering and debt service." Killearn is refunded or credited with one-half of all utility revenue received by Talquin in excess of $5 per month per customer. Those excess customer revenues would be credited first to repay amounts borrowed by Talquin for the installation of utilities to meet debt service. The excess of those revenues would be refunded to Killearn to the extent that Killearn had deposited funds with Talquin Electric for project purposes. The refund to Killearn would include any interest paid by Killearn associated with funding. By the agreement Talquin would borrow funds for the installation of the utilities if it could obtain better rates than were available to Killearn. All the funds borrowed by Talquin are subject to Killearn's guarantee on the repayment of all debt service required and if the aforementioned refunds and credits are insufficient to meet that requirement by Talquin, Killearn agrees to deposit with Talquin the amount of that deficiency which would be counted as a cost to Killearn and subject to some future refund. Killearn had agreed to execute the necessary documents for individual loans if requested to do so by Talquin. The agreement has a duration of 20 years beyond the date of completion of the last utility construction. The agreement allows Talquin to place a sewer service tap fee on lot purchasers in the project area at rates which are normal and competitive. Talquin is to deduct the direct cost of installation related to tap fees with agreement to credit or refund the remainder to Killearn. By the agreement Talquin committed to pay Killearn the cost of any land required by Talquin for sewer treatment facilities. Those purchase costs would be included in the total cost of utilities which required deposits or guarantees from Killearn to Talquin. Nothing in the agreement between Talquin Electric and Killearn spoke to the means by which successor developers would assure that sewers were provided for units developed in the DRI area. The development order in addition to not being subject to recording in the Public Records of Leon County, Florida, based upon its own terms or requirements in law, did not obligate Killearn to advise purchasers of parcels in the DRI area who bought those parcels for development purposes, that the subsequent developer would need to provide sewers in accordance with the development order either through Talquin Electric or an appropriate utility. The failure of the development order to require disclosure is not unexpected given the county's willingness to allow the ADA to serve as the development order. The ADA informs the county of the project features. It is not designed to anticipate development controls, in this instance to set out the process by which the initial developer would alert subsequent developers to the terms of the ADA to include the requirement to provide sewer service. Nonetheless, the permission to develop was granted to Killearn as applicant and to the extent that right to develop was assigned to another developer by conveyance which removed Killearn as the responsible developer, it would be reasonable to expect Killearn to give notice of the existence of the development order and its salient features. The need to provide sewer service as development proceeds is among those features. Transactions and Notice to Subsequent Purchasers What did Killearn tell subsequent purchasers about the requirement to provide sewers? J. T. Williams, Jr., CEO and President of Killearn offered testimony on that subject. Williams identified that he had sold by warranty deed to Holt Robinson the Channel 40 television station property. The notice of violation refers to this property as Ton Realty Partnership. Killearn sold parcels to Dennette Rainey on contracts for deed for areas known as Mallard Bluff and Mallard Point. Parcels between Mallard Point and Mallard Bluff were sold to Perry Bodin on contracts for deed. The sales described occurred between 1979 and 1981. The balance of the project which is in dispute has been developed by Killearn and sewer has been installed in those developed areas that Killearn had not sold or agreed to sell. According to Williams the contracts for deed to Rainey and Bodin included references about central sewer. Unfortunately, copies of the contracts for deed were not presented in the hearing to establish the exact nature of those references and the notice they may have given the purchasers concerning their obligations to arrange for sewer service contemporaneous with development (the building of residences). Williams said that the agreement was to provide sewer at the developer's request, meaning to Rainey and Bodin, pursuant to Killearn's agreement with Talquin Electric. As stated, Talquin Electric has no commitment to provide sewer service to a subsequent developer under the terms of its agreement with Killearn. More importantly the agreement with Killearn requires that the developer provide a substantial deposit before installation of sewer service. It is unclear from the record whether Rainey, Bodin or Robinson understood this. Given the arrangement described at hearing which Williams said that he would make between Talquin Electric and Respondents Kinhega Landing and Kinhega Oaks, as liaison, in which the expectation would be that those two developers would be responsible for funding or deposits to move the work forward, the possibility exists that Rainey, Bodin and Robinson had also been made aware that this funding would be needed to bring about the installation of sewer lines in areas to be developed by those purchasers. By contrast they may have understood Williams' explanation to be that Killearn would arrange for provision of the sewer service in the areas to be developed upon their request without the need for initial funding provided by the subsequent developers. The state of the record does reveal that none of the areas described in the contracts for deed between Killearn and Rainey and Killearn and Bodin have sewer service from a central location. Homes in those areas are served by septic tanks. The property conveyed to Ton Realty Partnership may or may not have sewer service based upon proof in this record. Williams stated that he told his immediate purchasers that there was a DRI on the property and bragged that it would not be necessary for those persons who bought from him to go back through a process of project review. This does not signify that those purchasers were familiar with the contract with Talquin Electric which is spoken to under Footnote 15 to the ADA. In a more general sense, the record does not indicate that the immediate purchasers read the ADA. Again, they would not have been aware of the development order and its terms by resort to the Public Records in Leon County, Florida. In addition to Robinson, Killearn gave warranty deeds to other purchasers of parcels within the DRI. Killearn sold the parcel known as Mallard Bluff to Olin Mannheimer while under contract for deed to Rainey. The warranty deed under those circumstances went directly to Olin Mannheimer as developer. The terms of the warranty deed were not identified in the record nor any explanation made of Mannheimer's awareness of the requirement for sewers if he had an impression of that requirement. Williams established that Rainey developed Mallard Point. As Williams describes, for the property between Mallard Point and Mallard Bluff that had been sold to Perry Bodin in which the parcels known as Kinhega Landing and Kinhega Oaks are found, together with Kinhega Estates and the Kinhega Lodge, title was released per warranty deed as acreage was paid off. Except for the last parcel within the Bodin contract for deed with Killearn, that parcel being associated with Kinhega Landing group of Respondents (Southern Heritage Development, Inc., Seay Enterprises, Inc. and Jimmy Boynton Realty, Inc.), Killearn gave warranty deeds directly to persons who purchased property that had been identified under the contract for deed between Bodin and Killearn. Killearn conveyed the Kinhega Landing parcel to Bodin by warranty deed. The terms of that warranty deed were not identified in the record. Killearn conveyed by warranty deed that property known as Kinhega Oaks. That conveyance was subject to restrictions, reservations, covenants and easements of record, if any. The conveyance to the Kinhega Oaks group of Respondents (Stephen John Stoutamire, Lewis Hill, Sr. and Lewis Hall, Jr.) took place on May 19, 1989. Kinhega Landing, Kinhega Oaks and Other Particulars The Kinhega Landing purchase by the present Respondents was based upon a deposit and receipt contract for sale and purchase between Bodin and his wife and James Jarrett followed by a warranty deed from Bodin and his wife to the Kinhega Landing group. No explanation is made concerning Jarrett's understanding of the need to provide sewers. The warranty deed to the Kinhega Landing group of Respondents was executed December 13, 1989, and refers to restrictions, easements, and reservations and covenants that are of record, if any. As with other conveyances and throughout the history of this project no reference to the development order could be found by a search of the Public Records. Neither does the deposit and receipt contract for sale and purchase identify the existence of the development order for the edification of the Kinhega Landing group. Killearn had no direct dealing with purchasers of property contemplated within the agreement for deed between Killearn and Bodin other than the act of preparing and delivering a warranty deed to the Kinhega Oaks group and others similarly situated who took title directly from Killearn based upon the agreement for deed between Killearn and Bodin. To the extent that the agreement for deed with Bodin may have informed the reader that Killearn had disclosed the nature of the requirement for provision of sewer as set forth in the development order, no indication was given in the record that someone other than Killearn may have then made the Kinhega Oaks and Kinhega Landing groups mindful of that caveat or that Bodin or someone that he was affiliated with otherwise disclosed the need to provide sewers for the parcels to be developed by the Kinhega Oaks and Kinhega Landing groups. Bodin is not named as a Respondent nor was he called as a witness in this hearing to explain his position in these matters. Likewise Rainey, Mannheimer and Jarrett are not parties nor were they called as witnesses. In that a warranty deed was given directly from Killearn to Kinhega Oaks, opportunity was presented by that conveyance for Killearn to have alerted the Kinhega Oaks group concerning the DRI and its terms, even if seen from Williams' viewpoint as principally being a favor to Bodin to avoid tax implications of a transfer from Bodin and thus to the Kinhega Oaks group. Although this opportunity was presented to Killearn to describe the existence of the requirements for sewer set out in the development order when making a direct conveyance to the Kinhega Oaks group, the warranty deed did not reveal that information and no discussion was entered into with Kinhega Oaks concerning any aspects of the purchase beyond the conveyance itself. Williams asserts in his testimony in further explanation of the events that Bodin would be responsible for arranging the furnishing of sewer to the Kinhega Landing group, but that Killearn would voluntarily arrange for that sewer service as a matter of a favor, not a matter of contract. This would be upon provision of the payment of 30 per cent of cost of the installation by Kinhega Landing to Talquin Electric. At hearing Williams offered to make a similar arrangement for the Kinhega Oaks group as Williams described as having been done for Rainey under his contract with Killearn, a contract not presented at hearing. Again, this contemplates that Kinhega Oaks would pay 30 per cent of the total costs and that Killearn would get all rebates that pertained for coverage of interest and carrying costs during the rebate period. Notwithstanding Killearn's offer to make these arrangements with Talquin Electric to provide sewer for the benefit of the subsequent developers, those arrangements have not been made. Nothing in the record establishes or suggests that the Kinhega Oaks group and the Kinhega Landing groups were aware of the existence of the development order and its requirement for installation of sewer contemporaneous with development when they purchased their parcels. Had they understood that requirement was incumbent upon them, they would not have undertaken the purchases and incurred debt obligations which they now are experiencing difficulties meeting, in part due to the possible outcome here which could prohibit development absent the contemporaneous installation of sewers. Petitioner argues that no authority exists to allow septic tanks at individual lot sites as an interim condition prior to sewer lines being made available in the areas undergoing development by Kinhega Oaks and Kinhega Landing. This is contrary to the attitude expressed by the county in granting preliminary plats to the two developers and individual permits for septic tank installation until sewer is made available, if that eventuality occurs. Raymond Richard Yates, Jr. testified. He is President of Southern Heritage Development Inc. and together with Jimmy Boynton Realty, Inc. and Seay Enterprises, Inc. owns the property known as Kinhega Landing. Those individuals became involved with the property through contacts between Yates and Jarrett. As alluded to, Jarrett did not tell Yates that the property was subject to the development order and its requirements for provision of sewer. At the inception of their dealings the Kinhega Landing group intended to substitute for Jarrett and his contract and to purchase the property if plat approval could be gained. The record is not clear about Jarrett's position with Bodin and Killearn beyond the previously described deposit and receipt contract for sale and purchase Bodin to Jarrett. The Kinhega Landing group arranged to have a search made of the Public Records of Leon County to discover any easement, development orders and/or restrictions affecting the property in question effective through December 13, 1989. That report of April 22, 1991, did not reveal the existence of the development order. On November 16, 1989, the Tallahassee-Leon County Planning Commission voted to approve the preliminary plat for Kinhega Landing subject to conditions. This was in accordance with the county ordinance on recording subdivision plats that became effective in 1984. (Other developers in the area of Lake Iamonia within the DRI as described had undertaken development before passage of the ordinance.) Among those conditions was the requirement for mound type septic tank systems in lieu of ordinary septic tank systems where subsurface conditions would require the mounded approach. Another condition required that the Kinhega Estates Home Owners Association's covenants and restrictions would apply. A condition was established that homeowners would be required to hook up to a central sewer system if and when it became available. The Kinhega Landing group paid $240,000 for the land or an amount approximating that cost with a fee of $30,000 paid to Jarrett for the assignment of the contract. The Kinhega Landing group obtained a loan for $425,000 to develop the land. In furtherance of the project roads have been installed, clearing has been done and some holding facilities for stormwater runoff put in place. Other permits for development have been acquired to include environmental permits from the county and the State of Florida, Department of Environmental Regulation. After plat approval and purchase, the Kinhega Landing group first discovered that the property was subject to the development order. In addition to the prohibition against the use of septic tanks contemplated by the notice of violation, the county has told the Kinhega Landing group that they may not proceed with development. At present the property in question, which is 29.71 acres with 44 lots and a unit density of 1.65 units per acre lies dormant. No septic tanks have been installed as this developer had anticipated doing. Yates testified that he is not in a financial position to address the sewer requirements in an instance where deposit money would have to be made available for that activity. His other partners have decided they no longer wish to participate and Yates is in jeopardy with his financing institution. On April 20, 1989, the Tallahassee-Leon County Planning Commission voted to approve the preliminary plat for Kinhega Oaks. That parcel has an acreage of 11.87, with 15 lots of a unit density of 1.4 per acre. The preliminary plat has the same conditions that have been described for Kinhega Landing. Kinhega Oaks is owned by Stephen John Stoutamire, Lewis Hill, Sr. and Lewis Hill, Jr. The property was purchased through a real estate agency known as Rae Roeder Realty in the person of Bob Cole. The Kinhega Oaks group did not deal with Perry Bodin directly or anyone other than the realtor. The Kinhega Oaks group bought the property for purposes of development of single-family residential lots of approximately one-half acre size. Improvements intended to be installed included a county maintained road. They did not intend to install a central sewer system. The project contemplated the use of septic tanks. In furtherance of the project the purchasers paid approximately $100,000 and had site evaluations done on two lots that were in the most sensitive area of the project near Lake Iamonia. An engineering firm was hired to gain that preliminary plat approval. Title work was done. Closing on the property was contingent upon activities by the engineering firm, soil samples and title insurance. For the two lots which were the most sensitive in terms of use of septic tanks, soil studies were done and the necessary approvals were gained for the use of septic tanks. In purchasing the property, the Kinhega Oaks group relied upon the conditions for development which were set out in the preliminary plat, including allowances for septic tanks to be used on an interim basis. If the preliminary plat had not been approved, the Kinhega Oaks group would not have purchased the property, nor would they have purchased the property if they had been aware of the existence of the development order. They would not have developed if the studies related to the use of septic tanks had been adverse. Since the purchase of the property, a road has been built, and water service and underground electric service has been provided. A concrete ditch has also been put in place and sod. Approximately $40,000.00 has been expended on improvements. In pursing the project, necessary permits have been obtained. The closest available central sewer is approximately one mile away. To install the sewer system, it would be necessary to tear up the road and lay the sewer line in the middle and T-off on the sides and re-pave the road. Five lots have been sold in the subdivision. Two houses have been constructed and one is underway. All of those houses have septic tanks. The Kinhega Oaks purchasers became aware of the existence of the development order after making improvements and selling the five lots. The Kinhega Oaks group first became aware of the development order when served with a notice of violation. Under the orders for corrective action and the development order, the Kinhega Oaks group and the Kinhega Landing group are confronted with a requirement to provide sewer service within a year of a final order, if Petitioner's position is sustained. The Kinhega Oaks group understands that limits have been imposed on the installation of septic tanks. Had it realized that it would become necessary to place the sewer lines, it would not have purchased the property. If required to make the corrections that are contemplated by the Petitioner, Stephen Stoutamire on behalf of the Kinhega Oaks group, testified that he would "go broke". The County: Application of The Development Order Martin Patrick Black, the present Chief of Land Use Administration for the county, testified. He has held that position since December, 1989. He concedes that the ADA does not mention septic tanks. The person who was principally responsible for considering the applications for plat approval from Kinhega Landing and Kinhega Oaks is Wade Pitt, a planner for the county. He knew of the existence of the development order from when he was initially employed in 1983. He testified that Mallard Bluff, Mallard Point and Kinhega Estates existed before the subdivision regulations were passed in 1984 and did not need to obtain plat approval as was necessary with Kinhega Landing and Kinhega Oaks. This did not excuse development without provision of sewer service. When he reviewed the subject requests for preliminary plat approval after the ordinance was enacted, he referred to the development order and ADA, in addition to the county subdivision regulations. On the issue of sewage disposal, he concluded that the ADA stated that central sewer would be provided by phases in the DRI; however, provision of central sewer was predicated on availability. Given that central sewer was not available at the time that the plat approval was considered, he decided that septic tanks were an acceptable alternative to the installation of sewer until sanitary sewer became available. In effect, he believed septic tanks were an available and appropriate interim measure until sewer became available. His perceptions led to the above described conditions on wastewater treatment which were placed in the preliminary plat approval for both Kinhega Landing and Kinhega Oaks. His interpretation is erroneous. His position, as adopted by the county in the preliminary plat approvals, is incorrect in a setting in which the requirements announced in the development order/ADA are not fairly debatable. There is no allowance for septic tanks as an interim response, especially not when the contingency in the plat approvals is for provision of sewer only when it becomes available, if at all. This is as contrasted with the absolute requirement of sewer service at the project inception, when development commences, found in the development order. The record is devoid of any statement that someone other than the subsequent developers would make the necessary financial contribution to bring about sewer service in those areas which were not developed by Killearn. It appears unlikely that sewer service will become available in substitution for septic tanks under the present circumstances. To the extent that the applicant in responding to the questionnaire which formed the basis of the application considered alternative methods for wastewater treatment, those alternatives did not include septic tanks. The statement of how Killearn would respond to wastewater treatment did not set forth septic tanks as the means, even as an interim measure. For the county to perceive that the ADA/development order would allow septic tanks as an interim condition is contrary to reason and in contravention of the development order which it issued. More About Covenants and Restrictions On November 29, 1979, certain Declarations of Covenants and Restrictions for that portion of the DRI known as Mallard Point were recorded in the Public Records of Leon County, Florida. They are in substance the same as those associated with Kinhega Estates, Unit I, as recorded on December 21, 1982, and those for Kinhega Lodge recorded on February 23, 1987. All were recorded by Killearn as the developer and signed by J. T. Williams, as President of Killearn. The restrictive covenants by Killearn executed in 1979, 1982 and 1987 call for single-family residential development in an area of the DRI which was approved for condominium development. Kinhega Landing and Kinhega Oaks per the terms of the preliminary plats received by those developers must abide by the Kinhega Estates Declaration of Covenants and Restrictions. Pursuant to the definitional section in that document, the term "improvements" includes sewers. Under Article IX, having to do with the preservation of the natural environment, lakes, and Green Areas at Section 5, the developer, Killearn, reserves the right for itself and successors and assigns to go over and around the ground to erect and maintain and use sewers and for other suitable equipment for conveyance and use of sewers in the Green Areas. Right is reserved to locate pumping stations and treatment plants in the Green Areas; however, the rights which may be exercised by the developer and any licensee of the developer, also referred to as the company, shall not be considered as an obligation of the company to provide or maintain the utility, in this dispute, the sewer service. In Section 9 of Article IX, further mention is made of the idea that the granting of the easement in no way places a burden of affirmative action on the developer, and the developer is not bound to make any of the improvements noted or to extend service of any kind. Article XVIII speaks specifically of sewage disposal where it says: "No individual sewage disposal system shall be permitted on any site unless such system is designed, located and constructed in accordance with the requirements, standards and recommendations of the State of Florida's Department of Pollution Control. Approval of such system as installed shall be obtained from such department or departments." These provisions fail to mandate the requirements for provision of sewer service by the original developer or subsequent developers. They also allow septic tanks in contravention of the development order. Other Departures Given the proposed stipulations in law among the parties in which consideration of the factual significance of those other departures from the terms of the development order is not anticipated, intricate treatment of those matters is not undertaken to examine the significance of these deviations from the development order. It suffices to say that the following improvements: the golf course known as Golden Eagle, the single-family residences in the vicinity of Lake Iamonia in lieu of the condominiums identified in the ADA, a school site under the ADA which has been converted to single-family residences in Golden Eagle Units 1 and 3, and the Television 40 site developed by Ton Realty Partnership in an area approved for a single-family residential development or a school site depart from the terms of the development order. Forgiveness Petitioner has not named individual lot owners who purchased property prior to the notice of violation as Respondents.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which: Requires Killearn to: comply with the requirements of the stipulation requiring an amendment to the development order incorporating the reduction in density from condominiums to single-family residences in the area bordering Lake Iamonia; the elimination of a school site in an area of residential development; the construction of a golf course and the construction of a television station in an area designated for a school site or alternatively for single-family residential development. provide written notice in all it sells for development by others after the date of the final order that a development order exists and that all new development must have contemporaneous sewer service, and if Killearn intends to broker the contract between Killearn and Talquin Electric as a means of meeting the central sewer requirement the purchaser must be made aware that Talquin Electric must be paid a deposit from the subsequent developer before Talquin Electric will undertake the project. record the development order/ADA and its amendments in the Public Records of Leon County, Florida. Requires the County to: amend the development order pursuant to the stipulation between the county and Killearn described at I.A. refrain from issuing any permits which would allow development in the DRI area not served by a central sewer, excepting those situations set forth in the conclusions of law. In those instances development permits could be issued to successors in interest. In the exceptional cases the permit should provide that the lot owner will be required to connect to a central sewer system when made available. faithfully fulfill the terms of its development order. dismisses the notice of violation against Kinhega Landing, Kinhega Oaks and Ton Realty Partnership. RECOMMENDED this 28th day of August, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1991.
Findings Of Fact In 1987, the Respondent DOT began its review of the public roads within Glades County in order to assign maintenance and jurisdictional responsibility in accordance with the current functional classification of each road. By law, the DOT is required to conduct such a review every five years. Section 05040 of State Road 78 is located within the unincorporated area of Glades County. This paved, two-lane road segment is 14.8 miles in length, and predominantly runs in an east-west direction. Approximately two miles of the eastern portion veers to the north, where the segment then connects with State Road 25 (U.S. Highway 27). The western terminus of this road segment adjoins State Road 29, and the eastern terminus as mentioned previously, adjoins State Road 25 (U.S. Highway 27). There is a radical change in direction at both ends where the segment connects with the two adjacent roads. At the western terminus, State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 enters into Hendry County and extends to LaBelle, the county seat. At the eastern terminus, State Road 25 (U.S. Highway 27) runs for approximately five miles before it reconnects with another portion of State Road 78 which runs in a northeasterly direction around the border of Lake Okeechobee into Okeechobee County, and onto the City of Okeechobee, the county seat. Through the use of approximately four miles of the southwesterly portion of State Road 29 and approximately five miles of the easterly portion of State Road 25 (U.S. Highway 27), State Road 78 becomes a transportation corridor which connects Hendry County, Glades County, and Okeechobee County. This corridor is used by members of the Gulf Citrus Growers Association in Hendry County to transport citrus to market in other parts of the state. State Road 29 and State Road 25 (U.S. Highway 27) are functionally classified as arterial roads on the state highway system. During the functional classification evaluations within Glades County, Section 05040 of State Road 78 was reviewed by DOT. As part of the process, an inventory worksheet was used to determine how the road would be classified under the current scoring system. A Rural Arterial Inventory Worksheet (Respondent's Exhibit 15) was used to determine the roadway's System Attribute Score (SAS). As part of the evaluation process, the system element coefficient must be located within Table Number 4 of Chapter 14-12, Florida Administrative Code. The Administrator of Transportation Data for District 1 correctly determined that the system element coefficient was 5, and the rural element number was 12. The first attribute reviewed on the worksheet in order to obtain the SAS was the Traffic Factor. Under the definitions found in Table 1 of Chapter 14-12, Florida Administrative Code, the Traffic Factor is calculated by multiplying the Average Daily Traffic Count by the county's normalizing coefficient Tpd of 1.73. Again, the administrator correctly assessed the value of 2,782 on the worksheet. Usually, a score below 3,000 under the Traffic Factor results in an evaluation score of "zero" on the Rural Arterial Inventory Worksheet. However, Table Number 1 of Chapter 14-12, Florida Administrative Code, notes that when 50% of traffic volume is non-local traffic, a score of "one" is placed on the worksheet instead of a "zero." Competent and credible testimony presented at hearing from local citizens, who had the opportunity to know the composition of the traffic on the road segment, revealed that a relatively small percentage of Section 05040 of State Road 78 traffic was local. The majority of the traffic was comprised of out-of-county motorists. Based upon this testimony, the Traffic Factor score on the worksheet should be changed from "zero" to "one." The second attribute reviewed on the worksheet was the Access Factor. This score is calculated by dividing the average daily traffic (ADT) by the number of access points per mile. Instead of using available information with the DOT or asking for information from local authorities regarding this attribute, the administrator grossly overestimated that the road segment contained twenty access points per mile. No reasonable basis was presented at hearing by the administrator for his "estimate" of twenty access points per mile on a rural segment in one of the more remote and under populated areas within his district. The videotape presented at hearing clearly demonstrates that there are not twenty access points per mile on this roadway. Unrefuted testimony presented at hearing revealed that approximately twenty-five families reside along this 14.8 mile stretch of road. There is also a large rock mine, a cemetery, and the county landfill. Respondent's Exhibit 5, the General Highway Map of Glades County, shows that a DOT facility is located on this road segment. There are four roads which intersect the road segment and one railroad grade crossing. A locked gate at the Caloosahatchee Rock Mine has a driveway which connects to the road. To deny the road segment the minimum score of "one" on the access factor, the DOT would have to estimate in its calculation that there are more than ten access points per mile on this road. Based upon the evidence presented at hearing, there are far less than ten access points per mile on this road segment. Therefore, the Access Factor score on the worksheet should be changed from "zero" to "one." The Trucks and Network Factor attributes which each received a score of "one" from the administrator. These scores were not challenged by Petitioner. The Extent of Road attribute was not properly tested by the administrator. Under Rule 14-12.015(2), Florida Administrative Code, the entire State Road 78, along with the southwesterly portion of State Road 29, and the eastern portion of State Road 25 (U.S. Highway 27) should be utilized for the Extent of Road (miles) measurement. As the entire length of the extended transportation corridor exceeds twenty miles, the score should be "one" instead of "zero." The Mobility Attribute was not properly assessed. Rule 14-12.015(2), Florida Administrative Code, allows the extended transportation corridor to be used to determine the total number of counties in which the road is located. Testimony presented at hearing regarding the use of the road segment as part of the transport route of citrus from Hendry County through State Road 78 in Glades County to Okeechobee County supports the finding that the road is located in three counties. The score as to the Mobility Attribute should be changed from "zero" to "one." Section 05040 of State Road 78 is in an overall physical condition which is at least commensurate with contemporary roads of like age and existing functional classification (rural major collector) within Glades County.
Recommendation Accordingly, it is RECOMMENDED: That the Department of Transportation enter a Final Order that the Department's functional classification of the road segment was incorrect, that the functional classification of the road as a rural minor arterial be reinstated, and that the jurisdiction over the road remain with the Department. DONE and ENTERED this 2nd day of October 1989, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1227 Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Not a factual finding. Accepted. Accepted. See Preliminary Statement. Accepted. See Statement of the Issues. Accepted. Accepted. Rejected. See HO #19. Accepted Accept the first sentence. The second sentence is rejected as irrelevant. Accepted. Accepted. Accepted. Accepted. Accept that the Hearing Officer found the road to be improperly classified. The rest is rejected as conclusionary. Accepted. See HO #10. Accepted. See HO #4. Accepted. See HO #10. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside rule or statute. Respondent's proposed findings of fact are addressed as follows: Accept the first two sentences. The third sentence is rejected. See HO #2. Fourth sentence is accepted. See HO #5. Fifth sentence is accepted. See HO #7. Sixth sentence is rejected. See HO #7-#18. Seventh sentence is accepted. See HO #8. Eighth sentence is rejected. Improper conclusion. Ninth sentence is accepted. See Conclusions of Law. Tenth sentence is accepted. See Preliminary Statement. Accepted. See HO #19. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside the rule or statute. COPIES FURNISHED: Michael A. Rider, Esquire Post Office Box 608 Lake Placid, Florida 33852 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, P.E., Interim Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 =================================================================
Findings Of Fact On August 1, 1979, Petitioner issued a Notice to Show Cause to Respondent, which notice alleged, inter alia, that Respondent had violated Chapter 498, Florida Statutes, in failing to complete, as promised, certain access roads in Miami Green Acres and therefore material change had been effected without prior notification to and approval by the Petitioner. After the conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes, a Hearing Officer of the Division of Administrative Hearings issued a Recommended Order, which found, inter alia, that Respondent's Public Offering Statement promised that graded access roads within Miami Green Acres Unit II would be completed at the time deeds were required to be delivered to purchasers; that the Respondent did not adhere to its representations; and that the lack of graded access roads in Miami Green Acres Unit II constituted a material change, alteration, or modification of Respondent's offering for which no notice to the Petitioner had been given and no approval from the Petitioner had been obtained. By Final Order entered June 4, 1980, Petitioner adopted that Recommended Order and concluded that Respondent was guilty of the statutory violations alleged relating to the noncompletion of promised roads. Among its other mandates, that Final Order required that: the Respondent shall submit to the Petitioner within thirty (30) days of the date of this Order a new estimate from a duly licensed engineer of the cost of constructing all roads promised in the Florida Public Offering Statement; the Respondent shall enter into an improvement trust account based upon the estimated cost of completion of the pro- mised road work within sixty (60) days of the date of this Order . . . Miami Green Acres Unit II is a subdivision registered with the Petitioner pursuant to Chapter 498, Florida Statutes. As part of that registration, Respondent's Public Offering Statement promised lot purchasers completion of graded access roads by the time a deed is delivered to the purchasers. Warranty deeds have been delivered to purchasers and have been recorded for a substantial number of lots in Miami Green Acres Unit II, which does not have completed roads as promised in said Public Offering Statement. Subsequent to the June 4, 1980 Final Order, Respondent submitted to Petitioner an engineer's estimate of the cost to complete improvements in Miami Green Acres Unit II. That cost estimate did not include any cost of obtaining any required construction permits necessary for completion of the developer promised roads. That information has still not been provided. Subsequent to the June 4, 1980 Final Order, Petitioner and Respondent entered into negotiations for the establishment of the required improvement trust account based upon the partial cost of completion contained within the engineer's estimate. Respondent failed to accept any of Petitioner's proposals for funding that trust account, including proposals for full funding and proposals for installment payments. No improvement trust account has been established or funded for the road improvements in Miami Green Acres Unit II. In order to construct the promised roads, certain permits from the Army Corps of Engineers are required. Respondent filed an application for the necessary permits. The Corps deemed Respondent's application to be incomplete and requested additional information. Respondent declined to provide that information, and Respondent's application was deactivated by the Corps. No reasonable effort was made by Respondent to obtain permits for the promised roads, and Respondent's inability to obtain those permits was caused solely by Respondent's lack of diligence in pursuing the permits. In July, 1981, a cease and desist order was issued by the Army Corps of Engineers. Pursuant thereto, no road construction can be done in Miami Green Acres Unit II until the cease and desist order has been lifted and a permit for the work has been obtained. Respondent has made no request to the Corps to have the cease and desist order lifted. Respondent has not applied for permits. The parties have stipulated in their Prehearing Stipulation that no material change approval request has been submitted to the Petitioner by the Respondent for the incomplete improvements in Miami Green Acres Unit II.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing counts (1) and (2) of the Notice to Show Cause due to settlement of those issues; finding Respondent guilty of the allegations contained in counts (3), (4) and (5) of the Notice to Show Cause; requiring Respondent to submit to Petitioner a material change approval request for delay of completion of improvements within 30 days; and suspending Respondent's registration of Miami Green Acres Unit II until such time as (a) a full and complete improvement cost estimate, including the cost of obtaining any construction permits, is filed with the Petitioner, (b) the required improvement trust account is established and funded by the Respondent in accordance with Petitioner's directives, and (c) all improvements promised by Respondent in its Florida Public Offering Statement for Miami Green Acres Unit II are completed. DONE and RECOMMENDED this 17th day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 this 17th day of December, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles S. Domina, Esquire 250 Bird Road, Suite 104 Coral Gables, Florida 33146 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether, pursuant to section 112.3173, Florida Statutes (2012),1/ Petitioner forfeited her Florida Retirement System ("FRS") Investment Plan account by having pled guilty/nolo contendere to felony counts of insurance fraud, grand theft, and patient brokering.
Findings Of Fact The Parties Petitioner, Nancy Maradey, was employed as a bus driver by Miami-Dade Transit ("MDT"), a unit of Miami-Dade County government, between January 2003 and July 2012. Respondent, SBA, is the entity of Florida state government that administers the FRS Investment Plan, a defined retirement benefits contribution plan.2/ § 121.4501(1), Fla. Stat. Events Giving Rise to this Proceeding While Petitioner was employed at MDT, she participated in the FRS Investment Plan through her employment with MDT.3/ Petitioner worked a split shift at MDT. This meant that she would punch in her time card in the morning, drive a route, return to the bus station, punch out her time card, return in the afternoon, punch in her time card again, and drive another route. While Petitioner was employed at MDT, a co-worker approached her regarding obtaining treatment at AJZ Medical Center ("AJZ"), a clinic located in close proximity to the MDT bus station. This co-worker told Petitioner that if she went to AJZ, she could receive therapy and be paid money for it. Petitioner claimed that she experienced back pain due to having undergone gastric bypass surgery. She sought and received treatment, consisting of massage and electric shock or stimulation, at AJZ on numerous occasions.4/ It was Petitioner's understanding that AJZ billed an insurance company5/ for the treatments. When the insurance company paid AJZ, AJZ then paid kickbacks to Petitioner. Petitioner estimated that she received between $5,000 and $6,000 in kickbacks from AJZ for receiving the treatments. An AJZ employee told Petitioner that if she referred others to AJZ for treatment, she would receive additional money from AJZ for those referrals. As a result of that communication, Petitioner referred her co-workers at MDT to AJZ for treatment. She told them that if they were treated at AJZ, they would receive money. Petitioner testified that it is common for bus drivers to have back and knee pain. Petitioner referred to AJZ only co- workers who she knew had injuries. On one occasion, Petitioner accompanied a co-worker to AJZ and informed AJZ personnel that the co-worker was there to receive treatment. Petitioner recruited only her co-workers to receive treatment at AJZ. She did not recruit anyone for treatment at AJZ who was not one of her co-workers at MDT. Petitioner claims that despite being told she would receive money for referring others to AJZ, in fact she did not receive any money for the referrals.6/ Petitioner and her co-workers were in the MDT bus station when they had discussions during which she referred them to AJZ.7/ Petitioner told her co-workers it would be easy for them to seek treatment at AJZ because it was close to the bus station. Petitioner was arrested in August 2012 and charged with felony counts of insurance fraud, grand theft, and patient brokering. All of Petitioner's conduct underlying the criminal charges took place while she was employed at MDT. On February 19, 2013, Petitioner entered into a plea agreement in Case No. F-12-20328G,8/ under which she pled guilty to felony counts of insurance fraud, grand theft in the second degree, and patient brokering for her actions in seeking treatment and receiving kickbacks from, and referring others to, AJZ for money. One of the conditions of the plea agreement was that Petitioner not seek future employment with state, county, or municipal government. As a condition of the plea agreement, adjudication would be withheld on these offenses if Petitioner cooperated with the State in investigating the matter. On July 22, 2013, Respondent formally notified Petitioner that as a result of her having pled guilty to felony counts of insurance fraud, grand theft, and patient brokering, she violated section 112.3173, which provides for forfeiture of the right to retirement benefits under the FRS upon a plea of guilty or nolo contendere to a specified offense. Petitioner's guilty plea was changed to a plea of nolo contendere on October 17, 2013.9/ Petitioner admitted that she knew, at the time she committed the offenses to which she pled guilty/nolo contendere, that her actions were wrong. Findings of Ultimate Fact The evidence establishes the existence of a nexus between Petitioner's employment as a bus driver with MDT and her participation in the crimes to which she pled guilty/nolo contendere. Specifically, Petitioner used the personal and professional relationships with her co-workers that she had developed through her employment at MDT and her consequent knowledge of their conditions——i.e. back and neck pain——to recruit them for participation in the insurance fraud scheme by referring them to AJZ. She recruited only her co-workers at MDT for participation in the scheme, and specifically recruited only those who she knew had pain issues. She went so far as to accompany one of her co-workers to AJZ and inform the staff at AJZ that her co-worker was there for treatment. She engaged in conversations with her co-workers while physically present on the MDT premises during which she recruited them for participation in the scheme by referring them to AJZ. But for her employment with MDT, Petitioner would not have had access to, or enjoyed the relationships with, the other MDT employees she recruited for participation in the criminal scheme, and she would not have had the knowledge of their conditions which made them targets for her recruitment efforts. Throughout all of this, Petitioner knew that her actions were wrong; nonetheless, she continued to engage in those actions. Her actions were thus done willfully and with intent to defraud the public of her faithful performance of her duties as a bus driver employed by MDT, her public employer. Plainly put, the public had a right to expect that one of its employees would not use the relationships, knowledge, and physical access to public premises and other public employees that she gained through her public employment to commit crimes. The public was defrauded when Petitioner used the relationships, knowledge, and access that she gained through her public employment position to commit crimes. The evidence further establishes that through Petitioner's use of her public employment position, she realized, obtained, and attempted to realize or obtain, a profit and gain. As discussed above, Petitioner was recruited by a fellow co-worker to seek and obtain treatments from AJZ in exchange for monetary kickbacks. Through her employment, she became involved in the insurance fraud scheme and realized financial profit and gain by receiving the kickbacks. She also used her position as an MDT employee to recruit other MDT employees for involvement in the scheme by referring them to AJZ; she did this for the specific purpose of realizing and obtaining financial profit and gain through payments from AJZ in exchange for referring co-workers for treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 she has forfeited all of her rights and benefits under the FRS Investment Fund, except for the return of her accumulated contributions as of the date of her termination. DONE AND ENTERED this 16th day of January, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2014.
