The Issue Whether Martin County Comprehensive Plan Amendment 14-6, adopted by Ordinance No. 965 on December 16, 2014, is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties and Standing Petitioner, Martin County Land Co. (Petitioner), owns real property and operates a business in Martin County. Respondent, Martin County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. On December 16, 2014, the County adopted Comprehensive Plan Amendment 14-6 (the Plan Amendment), which proposes to revise Chapters 2, 4, 10, and 11 of the County's Comprehensive Growth Management Plan (Comprehensive Plan). Petitioner submitted written and oral comments to the County concerning the Plan Amendment during the period of time between transmittal and adoption of the Plan Amendment. Background and Existing Conditions The County's original Comprehensive Plan was adopted in 1990 and was challenged by the Department of Community Affairs (DCA) as not "in compliance." Since its inception, the Comprehensive Plan has been the subject of substantial litigation, most of which has little relevance hereto. At least once every seven years, local governments are required to undertake an evaluation and appraisal of their comprehensive plans. See § 163.3191(1), Fla. Stat. During this evaluation, local governments must amend their plans to reflect changes in state requirements. See § 163.3191(2). The statute also encourages local governments to comprehensively evaluate changes in local conditions, and, if necessary, update their plans to reflect said changes. See § 163.3191(3). Local government plan amendments made pursuant to section 163.3191 are commonly referred to as "EAR amendments." The County adopted its most recent EAR amendments in 2009, following an evaluation and appraisal of the Comprehensive Plan and changes in state requirements. The 2009 EAR amendments were challenged by a number of parties as not "in compliance." Administrative challenge to the EAR amendments concluded, and the amendments became effective, in 2011. One of the signature features of the County's Comprehensive Plan is the urban service districts (USDs). The USDs were created as part of the Comprehensive Plan after 1990. The purpose of the USDs is to regulate urban sprawl by directing growth to areas where urban public facilities and services are available, or programmed to be available, at appropriate levels of service. The County refers to this approach as an "urban containment policy." Public urban facilities and services are defined by the Comprehensive Plan as "[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." Notably, neither package wastewater treatment plants (package plants) nor onsite wastewater treatment systems (septic systems) are included within the definition of public urban facilities. Commercial, industrial, and urban-density residential development, as well as future development requiring public urban facilities, are concentrated within the primary USD. With few exceptions, development within the primary USD is required to connect to regional wastewater systems. The existing Comprehensive Plan allows interim development on package plants only if the developer agrees to connect to regional wastewater systems when those systems become available. With very limited exceptions, septic systems are not permitted for new residential development within one-quarter mile of a regional wastewater system. Rural development at one unit per two acres (one/two acres) and estate development not exceeding one unit/acre are concentrated in the secondary USD where a reduced level of public facilities are programmed to be available at appropriate levels of service. A minimum lot size of one-half acre applies to all development. Regional sewer service may be extended to serve residential properties exceeding the one-half acre minimum lot size, and where lot sizes are inappropriate for septic systems. Development outside the USDs is limited to low- intensity uses, including Agricultural (not exceeding one unit/20 acres), Agricultural Ranchette (not exceeding one unit/five acres), and small-scale services necessary to support rural and agricultural uses. Some residential estate development is allowed on the fringe of the USDs at one unit/acre. Regional sewer service may not be extended outside the USDs, and package treatment plants are allowed only to serve a limited category of commercial development titled "Expressway Oriented Commercial Service Centers." The existing Comprehensive Plan does not establish a standard septic system flow rate. The County follows the state standards established in Florida Administrative Code Rule 64E- 6.008, which provide for a residential rate of 10,000 gallons per day (gpd) and a rate of 5,000 gpd for non-residential uses. Expressway-Oriented Transit Commercial Service Centers In 1985, in anticipation of the construction of Interstate 95 (I-95) through the County, the County created an overlay land use category, Expressway-Oriented Transient Commercial Service Centers (Expressway Nodes), "to recognize the immediate and unique needs of the public traveling through the County." The overlay is limited to the I-95 interchanges with County Road 714 (CR 714 or SW Martin Highway), located in the northern central area of the County; CR 76 (CR 76 or Kanner Highway), located in the western urbanized area of the County; and CR 708 (CR 708 or SE Bridge Road), located in the southwestern area of the County. The overlay is not self-implementing. Future Land Use Element (FLUE) Policy 4.13.A8(5), governing Expressway Nodes, includes a number of requirements for a proposed development to qualify for the designation. Notably, an applicant for development at one of the nodes must submit a market feasibility analysis demonstrating need by the traveling public for the proposed services, submit a Planned Unit Development (PUD) zoning application, and fully fund all urban services needed to serve the development. Further, no Expressway Node will be approved outside the primary USD unless the developer provides shared water and wastewater facilities for all subsequent development at the same interchange. To qualify, the development parcel must be a minimum of five gross acres, directly accessible from a major arterial roadway, and located in whole within 1,320 feet of an access ramp and within 1,320 feet of the intersecting arterial roadway. Unless proven safe through an engineered traffic study, the access point may not be closer than 660 feet from an access ramp. Of the three interchanges, only Kanner Highway, and that portion of SW Martin Highway east of the I-95 interchange, are designated major arterial roadways. Southeast Bridge Road and SW Martin Highway west of the interchange, are minor arterial roadways. The County must amend its Comprehensive Plan in order to reclassify a minor arterial to a major arterial. A roadway is typically reclassified from minor to major arterial when some threshold of traffic volume (based on trip counts) is achieved. No evidence was introduced to establish the particular threshold which distinguishes a minor from a major arterial. No evidence was introduced to establish the length of time for which the segment of SW Martin Highway east of the interchange has been classified a major arterial, thus meeting a primary threshold for Expressway Node development of the eastern quadrants of the interchange. Of the three interchanges, commercial services for the traveling public are located only at Kanner Highway. The interchange hosts at least three gas stations, a variety of fast-food and dine-in restaurants, and two hotels. Commercial services for the traveling public are available at the I-95 interchange at Indiantown Road in Palm Beach County, 16 miles to the south of the Kanner Road interchange. Services are also available 18 miles north of Kanner Road at the I-95 interchange at Gatlin Boulevard in St. Lucie County. Services for the traveling public are also available at a rest stop on I-95 in Martin County. Petitioner challenges, on several grounds, the deletion of FLUE Policy 4.13.A8(5), which provides for the Expressway Nodes overlay category. Data and Analysis First, Petitioner argues the deletion of FLUE Policy 4.13.A8(5) is not supported by data and analysis, as required by section 163.3177(1)(f). That section requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government that may include . . . surveys, studies, community goals and vision, and other data available at the time of adoption" of the plan amendment. Id. The Expressway Nodes designation pre-dates adoption of the USDs in 1990. The I-95 interchanges at SW Martin Highway and Bridge Road are located outside the USDs and the property at those intersections is designated for Agricultural land use. Thus, commercial development at those interchanges is inconsistent with the County's urban containment strategy and is an exception to the prohibition of urban uses outside the USDs. Further, SE Bridge Road functions as a minor arterial roadway, a designation which has not changed in the 30 years since the Expressway Nodes category was created. As such, the interchange does not qualify for commercial development under the restrictions of the policy itself. The same is true of SW Martin Highway west of I-95. While SW Martin Highway is a major arterial east of the I-95 interchange, no developer has come forward with a proposal to develop any service business at that interchange. According to historic traffic counts from the I-95 interchanges at both Kanner Road and SE Bridge Road, traffic has generally increased both northbound and southbound on I-95. Between 1998 and 2013, average annual daily trips (AADT) increased by 30,000 on I-95 southbound from Kanner Highway and 14,500 southbound from SE Bridge Road. In that same period, AADT trips eastbound on Kanner Highway increased by 16,500, and eastbound on SE Bridge Road by 1,700. Similar increases in trip counts occurred at the interchange ramps between 2009 and 2013. At Kanner Highway, AADT counts on the northbound off ramp increased by 2,000, southbound off ramp by 1,000, northbound on ramp by 600, and southbound on ramp by 1,800. According to the Petitioner's expert, this general trend will eventually lead to congestion of the service facilities at Kanner Road, which will cause motorists to either skip the Kanner Road exit altogether, or return to I-95 in search of another exit with the needed services. The data indicate similarly-increased AADTs at the I-95 interchange at Indiantown Road, the next interchange south of Kanner Road where services and facilities are available to the traveling public. Petitioner's expert likewise concluded that services at the Indiantown interchange are "pretty much maxed-out" and would likely also become congested in the future. AADT trip counts are data which were readily available to the County from the Department of Transportation (DOT) when the Plan Amendment was adopted. Petitioner argues that the Plan Amendment ignores this readily-available data by deleting the Expressway Nodes category. Petitioner's argument assumes a couple of factors. First, it assumes the County has an obligation to provide services to the public traveling through the County. Neither the Comprehensive Plan, nor the Community Planning Act, requires the County to provide said services. Second, it assumes that increased traffic counts through the interchanges directly correlate with increased demand on the services located there. Petitioner introduced no evidence to support this assumption. Increased trips through the interchange could be attributed to increased employment in the urbanized area of the County from residents in Palm Beach or St. Lucie Counties, or from rural areas within Martin County. The County's witnesses agreed that I-95 traffic counts would be relevant to the County's determination to delete the Expressway Nodes designation. However, the evidence does not support a finding that retaining the Expressway Nodes overlay is the only appropriate reaction to that data. Assuming Martin County was required to provide services to the traveling public, Petitioner did not establish the capacity of said services needed to serve the public, thus requiring the County to maintain the overlay. With the exception of hotel services, Petitioner introduced no evidence regarding a level of service or the utilization rate of the services provided at either the Kanner Road or Indiantown interchanges. With regard to hotels, Petitioner introduced hotel occupancy rates published by Smith Travel Data, a hospitality- industry source of statistics on occupancy and vacancy rates. In March 2015, excluding the beach hotels, the County hotels had an aggregate occupancy rate of 92 percent. The average annual occupancy rate of County hotels is in excess of 72 percent. Elimination of the Expressway Nodes overlay is supported by the County's urban containment strategy, as well as its history relative to package treatment plants. The SW Martin Highway and SE Bridge Road interchanges are outside the primary USD where regional sewer service is available. As long as they remain outside the primary USD, the option for wastewater treatment at those locations is limited to package treatment plants. The County has a clear policy prohibiting new package treatment plants. Existing FLUE Policy 4.7A.4 prohibits all package treatment plants outside the USDs except to serve development at the Expressway Nodes. Development at the Expressway Nodes is the only exception to the prohibition. The Plan Amendment deletes FLUE Policy 4.7A.4, thus eliminating the exception to the prohibition on package treatment plants, which prohibition is preserved elsewhere. In 1984, when John Polley, now Director of Utilities and Solid Waste, began working for the County, there were 89 private package treatment plants. In 1990, the County began a campaign to eliminate package treatment plants. Fifty-three package treatment plants were eliminated after being identified as threats to the Indian River Lagoon, pursuant to the Indian River Lagoon Act. Another 17 were eliminated because they did not comply with Department of Environmental Protection (DEP) standards, or had become mechanically obsolete and prone to failure. The County has focused on extending sewer service in the primary USD in order to reduce the need for new package treatment plants to serve development. By 2006, the County had eliminated 70 package treatment plants. There are only 19 package treatment plants in the County, and few, if any, have been approved and permitted in the County since 1990. Existing FLUE Policy 4.7C.2 is titled "Evaluation of urban uses near I-95 interchanges," and requires the County to "have completed an evaluation of potential urban uses in the vicinity of the I-95 interchanges with CR 708 and CR 714" by 2012-2013, and requires that "[t]he results of these studies shall be incorporated into the [Comprehensive Plan] via Plan Amendment." The Plan Amendment deletes FLUE Policy 4.7C.2. Martin County Principal Planner, Samantha Lovelady, produced a memorandum on Expressway Nodes in support of the Plan Amendment. The memorandum does not state that it was prepared to implement FLUE Policy 4.7C.2, nor did Ms. Lovelady testify that she prepared it pursuant to that policy. To the extent that the memorandum "evaluates potential urban uses" at the specified intersections, it concludes that the services at Kanner Highway, the rest area on I-95, and services available along I-95 just north in St. Lucie County and just south in Palm Beach County, all of which developed since the policy was adopted in 1985, have rendered the designation unnecessary. The memorandum concludes that the "original goal of this policy [to provide services to the public traveling through the County on I-95] has been achieved." FLUE Section 4.2.A(9)(b) of the Comprehensive Plan finds that based on an evaluation of the Future Land Use Map (FLUM) in 2009, the "raw data appear to show a significant deficit of commercial land necessary to accommodate economic needs." Further, the section provides, "[a]ny attempt to remedy the deficits should be based on geographic area in order to reflect sustainability principles and provide population centers with necessary services in an orderly and timely fashion." Petitioner argues the County deleted the Expressway Nodes overlay despite this data showing a deficit of available commercial property. The lands within the Expressway Nodes overlay have a FLUM designation of Agriculture, not Commercial. Further, there are several preconditions necessary for any of the property at those interchanges to be developed for commercial use, including a market demand study, PUD rezoning approval, and in the case of SE Bridge Road and SW Martin Highway west of the interchange, a required plan amendment to reclassify those roadways as major arterials. The evidence does not support a finding that elimination of the Expressway Nodes overlay would remove property from the County's commercial land use inventory. Furthermore, this section speaks to providing necessary services to "population centers." Neither of the I-95 interchanges at SE Bridge Road or SW Martin Highway is a population center. Internal Consistency Petitioner further challenges elimination of the Expressway Nodes as contrary to section 163.3177(2), which requires all elements of a comprehensive plan to be consistent with each other. Petitioner alleges that the Plan Amendment creates an inconsistency with FLUE Goal 4.2 "[T]o alleviate the negative impacts of inadequate public facilities and services and substandard structures for affected areas in the County." Petitioner's expert testified that removal of the Expressway Nodes designation will result in a lack of facilities to meet the needs of future travelers "as demand begins to evolve." The objectives and policies implementing FLUE Goal 4.2 speak directly to areas in need of redevelopment, including creation of Community Redevelopment Areas. There is no evidence to support a finding that the SW Martin Highway and SE Bridge Road interchanges are areas in need of redevelopment. Next, Petitioner contends the Plan Amendment is inconsistent with FLUE Policy 4.7A.5, which provides, in pertinent part: Policy 4.7A.5. Development options outside urban service districts. Martin County shall provide reasonable and equitable options for development outside the urban service districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. A small-scale service establishment shall be defined as a small, compact, low intensity development within a rural area containing uses and activities which are supportive of, and have a functional relationship with the social, economic and institutional needs of the surrounding rural areas. Petitioner's expert provided only conclusory testimony that the removal of the Expressway Nodes designation is inconsistent with this policy. FLUE Policy 4.7A.5 requires the County to allow some opportunity for development outside the USDs. There is no evidence on which to base a finding that the Expressway Nodes designation is the only allowance for development outside the USDs, thus removal of the designation does not conflict with this policy. Further, the Expressway Nodes designation, by its plain language, was created to serve the needs of the public traveling through the County. Deletion thereof does not conflict with a policy requiring some development to serve the needs of rural residents and businesses. FLUE Goal 4.8 requires of the County, as follows: To encourage energy conservation and promote energy-efficient land use and development that implements sustainable development and green building principles. Petitioner contends the Plan Amendment is inconsistent with this goal because travelers faced with congested facilities will travel further into the County along the intersecting roadways to find the desired services, thus increasing traffic and travel times, as well as use of hydrocarbons. The expert's testimony on this issue conflicts with his opinion that travelers faced with congested interchanges will either skip the interchange altogether, or re-enter I-95 to look for services at another interchange. On this issue, the expert's opinion is not accepted as credible. It is unreasonable to assume that a traveler would exit I-95 at an interchange which advertises no services and travel some distance on the crossroad in search of said services. Further, Goal 4.8 is implemented by objectives and policies which provide guidance for the County's land development regulations and which encourage green building standards and renewable energy resources. Petitioner appears to be taking the goal out of context. Finally, Petitioner cites FLUE Goal 4.10 and Policy 4.10B.2 as inconsistent with the Plan Amendment. The provisions read as follows: Goal 4.10. To provide for adequate and appropriate sites for commercial land uses to serve the needs of the County's anticipated residents and visitors. * * * Policy 4.10B.2. Criteria for siting commercial development. Commercial development shall be strategically directed to areas best able to accommodate its specific requirements of land area, site, public facilities and market location. The aim is to promote efficient traffic flow along thoroughfares, achieve orderly development and minimize adverse impacts on residential quality. Members of the public traveling through the County to other destinations are neither anticipated residents of, nor anticipated visitors to, the County. The Expressway Nodes designation was created to serve the "immediate and unique needs of the public traveling through the County." At hearing, Petitioner argued that the Plan Amendment was also inconsistent with provisions of the Economic Development Element of the County's plan. Inasmuch as Petitioner did not plead that issue in its Petition for Formal Administrative Hearing, the undersigned does not make any findings relevant thereto.3/ Balance of Uses Section 163.3177(1) provides, in pertinent part, as follows: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides as follows: The amount of land designated for future planned uses shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns, such as antiquated subdivisions. The amount of land designated for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business and may not be limited solely by the projected population. The Plan Amendment does not change the amount of land designated for any particular FLUM category. The Plan Amendment makes no change to the FLUM. Assuming, arguendo, that elimination of the Expressway Nodes overlay changes the amount of land designated for commercial use, that single change does not render the Comprehensive Plan out of balance or unable to foster vibrant, viable communities. The public traveling through Martin County to other destinations are neither permanent nor seasonal residents or businesses. Wastewater Treatment Options The Plan Amendment makes a number of changes in the wastewater treatment options available to serve development in the County. Within the primary USD, FLUE Policy 10.1A.2 requires all new subdivisions of less than one acre to be served by regional sewer. Under the existing Comprehensive Plan, only new subdivisions within the primary USD exceeding two units/acre must connect to regional sewer systems. FLUE Policies 4.7B.1 and 10.1A.2 prohibit the extension of regional sewer service into the secondary USD. Thus, new development in the secondary USD is limited to septic service (because package treatment plants are eliminated in another section of the Plan Amendment). FLUE Policy 10.2A.7 increases the threshold size of lots within new subdivisions which may be developed on septic systems. Where the existing Comprehensive Plan allows new subdivisions of half-acre lots to develop on septic, the Plan Amendment requires a minimum one-acre lot. Further, new development qualifies only if it is more than one-quarter mile from regional sewer system collection or transmission lines. Within the primary USD, approximately 100 undeveloped lots are located more than one-quarter mile from a connection point to the County's regional sewer service. FLUE Section 10.2.B prohibits development within the USDs on septic systems where regional sewer systems are available (i.e., within one-quarter mile of a regional service line). The same policy limits development on septic systems outside the USDs to "low density residential as permitted by the underlying future land use designation and small scale service establishments necessary to support rural and agricultural uses." FLUE Policy 10.1C.4 prohibits approval of development orders "where adequate water and sewer facilities cannot be provided." Similarly, FLUE Policy 10.1A.10 provides that development "shall not be approved where adequate regional water and sewage facilities cannot be provided, unless the development can meet the requirements for a [septic] system found in Policy 10.2A.7." Finally, FLUE Policy 10.2A.8 limits the maximum flow of septic systems to 2,000 gpd per lot. Taken together, the changes generally limit the type and density of future development allowed in the County. Within the primary USD, the Plan Amendment requires more dense development to connect to regional sewer systems while limiting use of septic systems to the lowest density development. Overall, the Plan Amendment encourages higher density future development and prioritizes regional service. These changes are consistent with the County's existing "urban containment policy" concentrating urban development within the primary USD. In the secondary USD, the Plan Amendment restricts future development to low density (one-acre lots) where regional service is not available within one-quarter mile, and requires all future development within one-quarter mile to connect. These changes have little practical effect because most of the secondary USD is slated for future development at a rural density of one unit/two acres, with some estate densities at one unit/acre. Outside the USDs, the Plan Amendment limits future development to low density residential, and limited commercial development to serve rural and agricultural needs, on septic systems. Petitioner's challenge focuses primarily on, and the majority of evidence introduced related to, the 2,000 gpd limit on septic tank flow. Petitioner challenges FLUE Policy 10.2A.8 and Section 10.2.B.2 on a number of grounds, each of which is taken in turn. Data and Analysis Section 163.3177 requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government." The statute provides, "[t]o be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of" the plan amendment at issue. Id. Further, "data must be taken from professionally accepted sources." § 163.3177(1)(f)2. The statute does not require original data collection by local governments. A septic system flow rate is the liquid flow rate of non-solid wastes (effluent) coming out of the residential or non-residential septic system after initial treatment. Septic systems are typically sized based on the flow rate. When the Comprehensive Plan was first adopted in 1982, the County adopted a maximum flow rate of 2,000 gpd. The 2,000 gpd standard was also the standard for the State of Florida at the time it was adopted by Martin County. In 1993, the Legislature amended the state standard to allow maximum flows of 10,000 gpd for all uses. See ch. 93-151 § 1, Fla. Laws. In 1998, the state standard for commercial facilities was reduced to 5,000 gpd, where it remains today. See ch. 98-151, § 7, Fla. Laws. Martin County did not adopt the state standard when it changed in either 1993 or 1998. The County maintained its lower maximum rate based on experience with septic system failures associated with poor maintenance, particularly of larger systems and commercial establishments, such as restaurants. The state standard was adopted by the County in its 2009 EAR amendments, which became effective in January 2011. Thus, the 2,000 gpd standard governed development in Martin County for almost 30 years. Despite the lengthy history of the 2,000 gpd standard in Martin County, the undersigned must find that the 2009 change to the higher state standards were supported by data and analysis since that change was found "in compliance" in 2011. Thus, the 2015 change back to the 2,000 gpd standard must likewise be based on data and analysis. The County identified protection of its ground and surface water bodies from contaminants associated with septic system effluent as the main reason for the change. In response to the Clean Water Act and the Florida Watershed Restoration Act, DEP implemented the Total Maximum Daily Load (TMDL) program. The program identifies water bodies which are "impaired" for a particular pollutant (i.e., exceeds the water body's capacity to absorb the given pollutant and still function for its designated use), and requires development of Basin Management Action Plans (BMAPs) to restore impaired waters. There are 32 impaired water bodies in Martin County. Among them are the St. Lucie Estuary and the Indian River Lagoon, which is part of the estuary. Both the estuary and the lagoon are impaired for nitrogen, among other contaminants. The lagoon is a brackish-water environment in which phosphorus occurs in high levels. The growth of algae and other microorganisms is limited in that environment by the availability of nitrogen in the ecosystem. Nitrogen is a "limiting factor." When too much nitrogen is present, algae and other microorganisms become overgrown. An overgrowth of algae consumes excessive amounts of oxygen and dissolved oxygen in the marine environment, a primary indicator of water quality. DEP adopted the TMDL for total nitrogen demand for the estuary in March 2009. The BMAP developed for the estuary includes both construction of stormwater management projects and conversion of particularly-identified developments from septic systems to regional wastewater service. In March 2013, the County identified first priority stormwater projects at a cost of $15,790,000, and second priority projects at a cost of $17,990,000. The County also identified ten subdivisions to prioritize for conversion from septic to sewer service at a cost of $88,140,000. Together with identified flood control projects, in 2013, Martin County estimated a grand total of $142,445,000 in projects to implement the BMAP. The County has extended sewer service to approximately 1,800 properties, converting approximately eight developments from septic to sewer service. Effluent from septic systems is only one source of nitrogen pollution to surface water bodies. Agriculture (from both fertilizer and animal waste), residential fertilizer, pet waste, and "atmospheric" nitrogen, are other sources of nitrogen pollution. A 2009 study by the Department of Health concluded that management of nitrogen sources, including septic systems, "is of paramount concern for the protection of the environment."4/ Initial treatment of raw wastewater occurs in the septic tank chamber, where solids settle to the bottom and liquids are separated from the solids. In this anaerobic (absent oxygen) state, the wastes are converted mainly to ammonia and ammonium (inorganic nitrogen). Septic tank effluent is then discharged to a drain field where nitrification occurs in an aerobic environment. Nitrification converts ammonium to nitrates in oxygen-rich unsaturated soils. Soils do not absorb nitrates, and much of the nitrates migrate to ground and surface waters causing contamination. If nitrogen remains in the oxygen-rich soil, it can be converted to nitrogen gas and eliminated through the atmosphere through the denitrification process. Carbon and other minerals must be present in the soil for denitrification to occur. Denitrification is also a slow process that occurs only in the vata zone, the oxygen-rich soil between the bottom of the drainfield and the top of the water table. The data and analysis, as well as the testimony presented at the final hearing, conflicted on the issue of how much nitrogen is removed from septic tank effluent through denitrification in Southeast Florida, where soils are well- drained, but the water table fluctuates seasonally. In September 2013, a study prepared for DEP estimated the amount of nitrogen load from removed septic systems to surface water bodies in Martin County, as well as the cities of Stuart and Port St. Lucie. The study "shows that the load estimates are strongly correlated with nitrogen concentrations in surface water quality data, suggesting that septic load is a significant factor for water quality deterioration."5/ In Martin County, where septic system removal was small scale, the study traced a majority of the removed nitrogen to specific water bodies.6/ The study found that the amount of nitrogen load is controlled by three factors: (1) length of flow path; (2) flow velocity; and (3) drainage conditions. The following excerpt is instructive: Figure ES-4 shows that the load estimate decreases with the mean length of flow paths; the two largest loads per septic system are for North River Shores and Seagate Harbor [in Martin County] where the flow paths are the shortest. . . . This is reasonable because longer flow paths result in more denitrification and thus smaller load estimate. In line with this, larger flow velocity corresponds to shorter travel time and thus smaller amount of denitrification and larger amount of load. . . . Figures . . . indicate that the setback distance should be determined not only by the distance between septic systems to surface water bodies but also by groundwater flow conditions (the distance probably plays a more important role here). The groundwater flow conditions are closely related to soil drainage conditions at the modeling sites. An October 2013 paper by Kevin Henderson, P.E., reviewed four studies between 1993 and 2011, and concluded that "[n]one of the studies are specific enough to [Southeast Florida] soils/groundwater aquifer to be definitive as regards nitrate nitrogen's fate once it becomes part of groundwater below a drainfield."7/ Henderson maintains that the Southeast Florida groundwater aquifer is low-flux. Henderson further reported that studies have shown that anticipated nitrogen and total nitrogen groundwater contamination "is consistently absent at distances of more than 40 feet from drainfields."8/ The County's soil and water expert, Catherine Riiska, disagreed, maintaining the Southeast Florida water table is seasonally-dependent, and fluctuates greatly between the wet and dry seasons. During the wet season, Ms. Riiska explained the drainage system is insufficient to keep the water table low during the rainy season. When the water table is high, there is little opportunity for denitrification and nitrates can be pulled directly into the water flow. While the experts disagreed as to how much nitrogen may be removed from septic tank effluent in Southeast Florida, the experts agreed that limiting the amount of potential flow from septic tanks will limit the amount of potential discharge, especially in the event of a failure of the system. Petitioner contends that the 2,000 gpd standard does not react appropriately to the data and analysis because it does not take into account factors other than effluent volume that contribute to total nitrogen loading from septic systems, such as distance to surface water bodies and size of area served by the septic system. The 2,000 gpd standard applies equally throughout the County regardless of location in proximity to surface water bodies. Septic systems can be regulated based on either flow or loading. Loading would be expressed in gallons per measure of property, such as gallons per acre per day. The County's Director of Utilities and Solid Waste, John Polley, agreed that, in terms of environmental impact, loading is a superior measure to flow rate. The County is not required to adopt the superior measure for environmental protection, but to adopt a measure which is supported by data and analysis. Finally, Petitioner contends that the 2,000 gpd standard is not based on data and analysis because it was chosen arbitrarily, without considering some less restrictive flow limit such as 3,000 gpd or 4,000 gpd. The 2011 change from the 2,000 gpd flow limitation to the higher maximum state standard was not supported by the Martin County Health Department. Robert Washam, a retired Environmental Administrator for the Martin County Health Department with more than 30 years' experience permitting and regulating septic systems in Martin County, testified and submitted in writing to the County as to his support for the change to 2,000 gpd. He iterated several reasons for his support, including the serious public health and environmental issues that can result from the failure of large septic systems; the documented failures of large systems inside the primary USD resulting in raw sewage flowing into wetlands, ditches, and eventually rivers; and the unsuitable soils and water table conditions for large septic systems in rural areas of the County.9/ Section 381.0065(4)(e) provides as follows: (e) Onsite sewage treatment and disposal systems must not be placed closer than: Seventy-five feet from a private potable well. Two hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of greater than 2,000 gallons per day. One hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of less than or equal to 2,000 gallons per day. Fifty feet from any nonpotable well. Petitioner's wastewater expert, Richard Creech, acknowledged in his testimony that these thresholds reflect that there is an opportunity for contamination of the public water wells by the larger septic systems. Mr. Creech also agreed that, if a septic system is not properly maintained, functioning, designed, and sited, it may present a problem to surface waters. Petitioner did not prove that the 2,000 gpd standard would not protect ground and surface waters from nitrogen loading. That issue is clearly a subject of fair debate. Balance of Uses/Operation of Real Estate Markets Section 163.3177(1), provides, in pertinent part: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides that the amount of land designated for future planned uses "shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns." Petitioner contends the County failed to consider the economic impact of reducing the septic system flow rate to 2,000 gpd. Petitioner introduced no evidence regarding the effect of the 2,000 gpd limit on the future economic development of the County, only that the County failed to conduct economic analysis thereof. While the County conducted no formal economic analysis of the change, the County clearly considered the effect of that limit on type and size of future development in the County. The 2,000 gpd flow limitation was not a significant development constraint during the nearly 30 years that it was in effect. Septic system size determinations are governed by Florida Administrative Code Rule 64E-6.008. The rule associates a specific gpd rate for each type of commercial, industrial, and residential establishment, based on factors such as the number of seats or patrons, number of employees, and number of bedrooms. A four-bedroom home up to 3,300 square feet can be developed on a septic system with a 400 gpd flow rate, well within the 2,000 gpd flow established under the Plan Amendment. A 2,000 gpd flow rate will accommodate a 650-seat church without regular meal service (or 580 seats with weekly meal preparation), a 200-room hotel, and a 13,000 square foot office building. The substantial expansion of the County's regional wastewater system inside the primary USD has reduced the prospective amount of future development on septic systems. Approximately 100 acres designated for non-residential use are beyond one-quarter mile from sewer availability from Martin County. All other future non-residential development in the primary USD will be unaffected by the septic system flow limitation. The flow limitation does not prohibit more intensive non-residential development in the primary USD. Rather, it encourages developers to expend funds to connect to the regional system so that increased intensity may be obtained. The flow limitation will have limited, if any, impact on the balance of allowable uses in the secondary USD. The low densities and the lack of any approved commercial uses in that District make higher septic flows unnecessary. The same is true for areas outside the USDs, where future development is limited to agricultural, very low density residential (one unit/20 acres), and some minor commercial land uses. Higher flow septic systems are also unnecessary in that area. Based on concerns expressed by agricultural interests during the adoption process, the Plan Amendment allows agricultural uses to exclude consideration of a septic system associated with a residence on the same site. Thus, the County considered the impact of the flow limitation on the predominant industry in the County. Miscellaneous Issues In its Petition, Petitioner also raised the issue of whether the deletion of FLUE Policy 4.13.A8 is inconsistent with the Future Land Use Map which retains the overlay designation. Petitioner did not present any evidence on this issue. Thus, Petitioner did not prove the allegation beyond fair debate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Plan Amendment CPA 14-6, adopted by Martin County on December 16, 2014, is "in compliance," as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 1st day of September, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 1st day of September, 2015.
The Issue The issues in this case are whether a sign owned by the Respondent is in violation of Section 479.07(1) and 479.11(1), Florida Statutes, and, if so, what remedial action should be taken by the Department of Transportation.
Findings Of Fact Heinl's Nursery, a division of American Nursery Products, Inc., is the owner of a sign located in Dade County, Florida, on the west side of Krome Avenue (State Road 997) about 36 feet north of its intersection with S.W. 126th Street. The subject sign is located approximately 23 feet from the right-of- way of Krome Avenue. The subject sign has been at that location for a number of years. The face of the sign is made of wood and measures approximately 4 feet by 8 feet. The sign is mounted on metal poles. The message on the sign consists of the owner's name, a logo or graphic decoration, and an arrow pointing towards the right. The Department of Transportation has not issued a permit for the sign. The area in which the sign is located is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The sign is not located on the business premises of the sign owner. Krome Avenue (State Road 997) is part of the federal-aid primary highway system. By notice dated March 21, 1989, the owner of the sign was advised that the sign was in violation of the applicable statutes and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing for the immediate removal of the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July 1989. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mr. Mike S. Waters 15000 S.W. 192nd Avenue Miami, Florida 33187 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact By letter dated August 20, 1987, the County requested that DOT reclassify various roads within the county from county jurisdiction to the state highway system. The request was filed under Rule 14-12.016, Florida Administrative Code. On October 21, 1988 DOT advised the County by letter that the County's request to "add 17 miles to the State Highway System in Broward County" had been denied on the ground the proposed routes did not meet DOT's road classification criteria. In its petition, the County maintains that the subject roads meet all functional classification criteria for inclusion in the state highway system as established in Section 335.04, Florida Statutes and Rule 14-12.016. The County alleges further that DOT's decision "affects the County's duty to maintain and oversee the subject roads, unfairly burdening the County with the maintenance of roads which meet the criteria for inclusion in the State Highway System."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion to dismiss the petition is hereby GRANTED, with prejudice, and that a Final Order be entered dismissing the same. DONE and ENTERED this 28th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1989. COPIES FURNISHED: Barbara A. Hall, Esquire 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Amendment 95-2 to the Town of Jupiter Comprehensive Plan, as originally adopted by Ordinance 68-93 on October 3, 1995, and amended by Ordinance 13-96 on March 19, 1996, is “in compliance” as defined in Chapter 163, Part II, Florida Statutes (1995).
Findings Of Fact The Parties Petitioners are all political subdivisions of the State of Florida. Petitioner, Board of County Commissioners of Palm Beach County (hereinafter referred to as “Palm Beach County”), is a county located on the southeast coast of Florida. Petitioner, Martin County, is a county located adjacent to, and north of, Palm Beach County. Part of Martin County’s boundary is located adjacent to the Town of Jupiter. Petitioner, the Village of Tequesta (hereinafter referred to as “Tequesta”), is a municipality located in Palm Beach County. Tequesta’s western boundary abuts the eastern boundary of the Town of Jupiter. Respondent, the Town of Jupiter (hereinafter referred to as “Jupiter”) is a municipality located in Palm Beach County. The plan amendment at issue in this proceeding was adopted by Jupiter. Jupiter has a population of approximately 39,000 people. Respondent, the Department of Community Affairs (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of, among other things, implementing Part II, Chapter 163, Florida Statutes, the Local Comprehensive Planning and Land Development Regulation Act (hereinafter referred to as the “Act”). Intervenor, the Shores of Jupiter Homeowners’ Association, Inc., is a not-for-profit Florida corporation. Intervenor represents the interest of the Shores of Jupiter residential development. The Shores of Jupiter is located in Jupiter. The Geographic Area at Issue. The boundary of northeastern Palm Beach County which abuts the southwestern boundary of Martin County extends westerly from the Atlantic ocean for a couple of miles. The boundary then turns south for less than a mile before returning to the west. The area at issue in this proceeding consists of an area within the jurisdiction of four different local governments: Palm Beach County, Martin County, Jupiter and Tequesta. Jupiter and Tequesta are located in the northeast corner of Palm Beach County. See Palm Beach County exhibit 39. Tequesta is located in the extreme northeast corner of Palm Beach County. Part of the northern border of Tequesta abuts the southern boundary of Martin County. Jupiter is located primarily to the south of Tequesta. Most of Jupiter and Tequesta are separated by the Loxahatchee River (hereinafter referred to as the “River”). The River also has two branches separating Jupiter and Tequesta. See Palm Beach County exhibit 39. The northernmost portion of Jupiter abuts the Martin County-Palm Beach County boundary where the boundary turns to the south and then back to west. Most of the area at issue is comprised of residential subdivisions. Jupiter’s current and projected land uses are primarily residential. Land uses in Jupiter in 1995 and projected for 2000 in the Data and Analysis for the Jupiter Comprehensive Plan (hereinafter referred to as the “Plan”), suggest that residential uses and projected residential land uses of vacant land to be developed by the year 2000 will predominate in Jupiter. There is a relatively large tract of undeveloped land, referred to as “Section 28” during the formal hearing, which is not now used for residential purposes. Section 28 is located in the west, north-west portion of Jupiter. Section 28 abuts Martin County where the boundary of Palm Beach County and Martin County turn back to an east-west direction after the north-south turn. Section 28 is located to the east of Interstate 95 and the Sunshine Parkway, west of the River, north of Indiantown Road and south of the Martin County line. Existing Transportation Corridors. The roads that are at issue in this proceeding are depicted on Palm Beach County exhibit 1. The road identified in red as Roosevelt Street is conceptual only. The depicted connection of Island Way and Northfork Drive is also conceptual. To the western boundary of Jupiter and the area at issue in this proceeding is located Interstate 95 and the Sunshine Parkway. Both roads begin a turn from a northerly direction to the northwest. The main corridor along the eastern portion of Jupiter located to the west of the North Fork of the River is Loxahatchee River Road. Loxahatchee River Road runs to the north from the intersection with Center Street and then follows the northwestern route of the North Fork of the River to the boundary of Martin County. The road continues into Martin County and connects with Island Way. Loxahatchee River Road functions as a county collector road. This means that it carries a high volume of traffic and is intended to connect and lead traffic from one set of local street connections to another. Loxahatchee River Road is bordered by unincorporated subdivisions, including Whispering Trails, Imperial Woods, Fox Run and Eagle’s Nest. Loxahatchee River Road is a two-lane road. It has been used for a number of years as a traffic corridor between Palm Beach and Martin Counties. It is poorly designed for this purpose. Its design pre-dates contemporary transportation planning. Houses face onto the road and have direct driveway access to the road. These houses are not protected from the road by a buffer. To the west of Loxahatchee River Road and to the east of I-95, the main north-south road corridor is made up of Longshore Drive and Northfork Drive (hereinafter referred to as the “Northfork/Longshore Corridor”). The Northfork/Longshore Corridor is a two-lane road. Longshore Drive runs in a generally northern direction from Central Boulevard until it connects with Northfork Drive. Northfork Drive continues in a generally northern direction. It parallels a portion of the boundary of Martin and Palm Beach Counties which runs north-south. The Northfork/Longshore Corridor is bordered by residential subdivisions, including the Shores of Jupiter, Northfork, The Preserve and Cypress Cove. All of these subdivisions were annexed by Jupiter in March, 1993. Northfork Drive was designed to accommodate a thoroughfare. Residents are buffered from the road and face away from it. Traffic from residents along Northfork Drive is directed to limited access roads to Northfork Drive. Northfork Drive terminates about a quarter of a mile south of the portion of the boundary of Martin and Palm Beach Counties that runs east to the Atlantic Ocean and where the boundary turns to the south. Approximately a quarter of a mile north of the termination point of Northfork Drive is the southern termination point of Island Way. Island Way is located in Martin County. An unpaved right-of-way separates the southern terminus of Island Way and the northern terminus of the Northfork/Longshore Corridor. In the south, the main east-west corridor is Indiantown Road and Center Street. Indiantown Road is a primary commercial area for residents of the area at issue. Residents in the area use the Northfork/Longshore Corridor and Loxahatchee River Road to access these commercial areas. The road system of the area at issue is dominated by the River and its tributaries. The River creates a physical barrier to travel by the residents of the area. Due to this barrier, Central Boulevard, Church Street and Roebuck Road, which all connect with the Northfork/Longshore Corridor and Loxahactchee River Road, provide the primary routes for residents of the area to access Indiantown Road. Transportation Planning for the Area. A number of factors have caused difficulties in planning for the traffic needs of the area at issue in this proceeding. The area is constricted by the River, the area is under the jurisdiction of four local governments, all of which are involved in this proceeding, and the north-south jog in the boundary of Palm Beach and Martin Counties has the potential to create greater traffic impacts between the two counties. The fact that the area is primarily residential and largely existing development also contributes to the problem. Most motor vehicle trips generated in the area involve travel to and from residents in the area to destinations outside the area. The fact that the development already exists makes it difficult to establish a comprehensive internal grid street system with a continuous and unfragmented regional road network. Future planned developed will only add to this problem. The projected development of Section 28 could significantly add to the traffic problems of the area. Section 28 is bounded on the west by I-95 and the turnpike. Traffic generated in the area will have to travel north into Martin County or south and east through Jupiter. Roads required for travel into Martin County from Section 28 do not exist. Prior to 1993 the Northfork/Longshore Corridor was located in unincorporated Palm Beach County. In 1986 Palm Beach County undertook a transportation study for northern Palm Beach County. Public meetings were conducted and studies were undertaken to evaluate roadway corridors for the area necessary to accommodate existing and future traffic. The evaluation included a consideration of the needs of traffic moving between Palm Beach and Martin Counties. As a result of Palm Beach County’s study, it was ultimately concluded that three intercounty thoroughfares were needed for the area: (a) Loxahatchee River Road; (b) Longshore Drive(connected to Northfork Drive, connected to Island Way); and (c) a new corridor, the “Western Corridor”. Loxahatchee River Road and the Northfork/Longshore Corridor were added to the Palm Beach County Thoroughfare Identification Map. Loxahatchee River Road was already being utilized as an intercounty traffic corridor despite design limitations for such use. Hearings were conducted by Palm Beach County in November, 1987, at which the use of Longshore Drive was considered as a possible second corridor. The Jupiter transportation planner at the time presented a report comparing possible thoroughfare alignments, including the suggestion that Longshore Drive be connected to a thoroughfare to be constructed through the area where Northfork Drive was ultimately constructed and that the thoroughfare be connected with Island Way. Palm Beach County accepted this suggestion. The Western Corridor, if constructed, would run through Section 28 and probably connect Indiantown Road with Island Way. The exact route for such a corridor has not been decided. Nor has right-of-way for the corridor be acquired or funding for the corridor been set aside. The Loxahatchee River Road and the Northfork/Longshore Corridor were added to Palm Beach County’s Thoroughfare Right-of- Way Identification Map (hereinafter referred to as the “TIM”). Although the TIM is not used to identify capital improvements, it is used by Palm Beach County in the Traffic Circulation Element of Palm Beach County’s comprehensive plan as a land use planning tool. Annexation of the Shores of Jupiter. Palm Beach County suggested in 1989 that the various municipalities in the county should look at areas which could be annexed into the municipality while promoting the efficient delivery of urban services. Jupiter looked at unincorporated areas surrounding it as possible areas to annex, consistent with Palm Beach County’s suggestion. Jupiter looked at areas which might be annexed also in order to comply with its own Plan, which was adopted in 1990. As part of its consideration of areas which it considered desirable to annex, Jupiter routinely sent letters to communities explaining the benefits of annexation by Jupiter. Jupiter also addressed concerns expressed about annexation by businesses and residents of areas it was considering. Since 1990, Jupiter annexed approximately 50 different properties. Among the areas considered for annexation by Jupiter were subdivisions located along Northfork Drive, including the Shores of Jupiter. Discussions between Intervenor and Jupiter about annexation of the Shores of Jupiter began in 1992. Intervenor made it clear to Jupiter that it would consider supporting annexation only in Jupiter supported its efforts to avoid the connection of the Northfork/Longshore Corridor to Island Way. Counsel for Jupiter informed the then Town Manager of Intervenor’s position in a memorandum dated July 23, 1992: The Shores does not want a through road or “T” intersection at the northern boundary of the Northfork subdivision . . ., which allows Longshore Drive to be extended into Martin County. The Shores is intractable on this issue. Anything less than the Town’s vigorous support of the Shores in this regard will doom the annexation unless the Town supports to the fullest extent the prevention of Longshore Drive’s extension into Martin County. Consequently, if there is to be another corridor in northern Palm Beach County, The Shores would only support the “western corridor.” . . . See Palm Beach County exhibit 28. As a solution to Intervenor’s concerns, Jupiter’s attorney suggested the following solution: The proper vehicle for the Town to address the concerns of The Shores is through the Town’s comprehensive plan. Of course, the Town’s comprehensive plan can only be applied to The Shores, Northfork, Shorewood and Cypress Cove subdivisions and the Longshore Drive corridor, if these areas are within the municipal jurisdiction of the Town. Nevertheless, the Town Council can publicly describe its intention to adopt appropriate goals, objectives and policies it proposes to adopt as part of amendments to its comprehensive plan to address the concerns of The Shores. It may also be appropriate for the Town to address corridor planning issues, in particular, appropriate alignments, if any, of a “western corridor” in the Transportation Element Plan. Finally, the Town should consider including the alignment of a “western corridor” as part of its western interchange planning study. In a letter dated February 16, 1993, the Mayor of Jupiter, the Honorable Karen J. Golonka, informed residents of the Shores of Jupiter of a special referendum election on the issue of annexation of the Shores of Jupiter into Jupiter. Mayor Golonka suggested that residents vote “Yes” on the referendum and gave the “top three reasons” why Jupiter believed annexation would be in the best interest of residents of the Shores of Jupiter. In addition to the improved law enforcement protection and the protection of property values, Mayor Golonka informed residents that, while members of the Palm Beach County commission were supporting the connection of the Northfork/Longshore Corridor to Island Way, Jupiter was opposed to the connection. Mayor Golonka indicated that Jupiter had adopted Resolution 47-92 expressing the following: the Town’s opposition to making Longshore Drive a major arterial, and the Town’s intention, if the annexation is successful, is to amend our Comprehensive Plan to ensure that Longshore Drive remains the treelined collector street seen today. Palm Beach County exhibit 7. Resolution 47-92 had been adopted by Jupiter in September of 1992 because Intervenor had asked Jupiter to take a formal position on the question of the Northfork/Longshore Corridor connection with Island Way. In March, 1993, a dual referendum was conducted concerning the annexation of certain areas, including the Shores of Jupiter. The Shores of Jupiter was subsequently annexed by Jupiter. While the position taken by Jupiter with the Intervenor prior to the adoption of the amendment at issue in this proceeding does not conclusively prove that the amendment is not “in compliance” with the Act due to the lack of adequate data and analysis to support the amendment, the evidence did prove that Jupiter had already decided to take a position similar to the position established in the amendment without determining whether adequate data and analysis for that position existed. The Challenged Amendment Adopted Through Ordinance 68-93. Subsequent to the annexation of the Shores of Jupiter, Jupiter proposed an amendment to its Plan which included, among other things, a proposed Policy 1.4.4 providing, in part, that “[t]he Town will discourage any connections of Northfork Drive to Island Way or any other road or roadway corridor located in Martin County.” The plan amendment proposed by Jupiter (hereinafter referred to as the “Original Plan Amendment”) was not transmitted to the Department until September of 1994. Following its review of the Original Plan Amendment in October, 1994, the Department issued its Objections, Recommendations and Comment Report (hereinafter referred to as the “First ORC”). The Department raised several objections to the Original Plan Amendment. Among other things, the Department objected on the basis of the lack of supporting data and analysis, lack of specificity of the proposed policies, lack of intergovernmental coordination and the creation of internal inconsistencies in Jupiter’s Plan. Jupiter responded to the First ORC on October 9, 1995. In response to the objections raised by the Department with regard to Policy 1.4.4, Jupiter responded that it intended to change the policy to provide that the policy to discourage the connection of Northfork Drive would only apply in the absence of a “demonstrated need “for the connection. See Palm Beach County exhibit 33. Jupiter also informed the Department that the data and analysis that supported Policy 1.4.4 consisted of a 1994 traffic planning study, the Joint Local Government Traffic Engineering Study (hereinafter referred to as the “Joint Traffic Study”), and Jupiter’s analysis of the Joint Traffic Study. While Jupiter suggested that it relied upon other “data and analysis”, the response to the Department’s First ORC only indicates that Jupiter relied upon the Joint Traffic Study. On October 3, 1995, following a public hearing, Jupiter adopted Ordinance 68-93 and the Original Plan Amendment therein. On December 1, 1995, the Department issued a Notice of Intent to Find Not in Compliance Jupiter’s Original Plan Amendment. A Statement of Intent describing numerous inconsistencies found by the Department between the Original Plan Amendment and the Act was entered with the notice. Petition for Formal Hearing, Settlement Negotiations and Adoption of the Remedial Amendment. On or about December 6, 1995, a petition challenging Jupiter’s Original Plan Amendment was filed by the Department with the Division of Administrative Hearings. The matter was designated case number 95-5930GM and was assigned to the undersigned. Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., were allowed to intervene in case number 95- 5930GM by Order entered January 8, 1996. Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996. The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department, Jupiter and the Shores of Jupiter ultimately reached a stipulated settlement. Palm Beach County and Tequesta did not, however, enter into the settlement. Upon the filing of the Stipulated Settlement Agreement, the abeyance of case number 95-5930GM was extended. Pursuant to the Stipulated Settlement Agreement, Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find Amendment 95-2 (hereinafter referred to as the “Remedial Amendment”), in compliance to be published. On or about May 2, 1996, Martin County filed a petition in response to the April 20, 1996 Notice of Intent to find the Remedial Amendment in compliance. The Petition was filed with the Division of Administrative Hearing on May 23, 1996. Martin County’s petition was designated case number 96-2563GM. Palm Beach County and Tequesta filed amended petitions in response to the Remedial Amendment. The amended petitions were accepted by Order entered June 5, 1996. By Order dated July 9, 1996, the parties in case number 95-5930GM were realigned, the two cases were consolidated, the stay was lifted and Martin County was allowed to intervene in case number 95-5930GM. The Remedial Amendment. The Remedial Amendment adopted by Jupiter and found in compliance by the Department includes an addition to the Traffic Circulation Element of Jupiter’s Plan. The Remedial Amendment adds Goal 4, Objective 4.1 and eight policies to implement the Goal and Objective to the Traffic Circulation Element of the Plan. The Remedial Amendment adopted by Jupiter provides the following, with modifications to the Original Plan Amendment noted: Neighborhood Protection The Town of Jupiter recognizes the need for a traffic circulation system that serves the needs of its residents, provides roadways with the least amount of congestion, promotes business and economic development of the community, and protects existing and proposed residential neighborhoods. The construction of new roads or expansion of existing roads should be accomplished in a manner that minimizes any impacts on the Town’s residential neighborhoods. The Town can minimize the impacts of road construction or expansion through such means as : diverting the flow of through traffic away from streets that serve existing neighborhoods, discouraging future thoroughfare or traffic circulation plans which encourage nonresidential or non- resident use of neighborhood streets, requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan, and coordinating/cooperating with all appropriate governmental agencies to ensure new or expanded roadways will not adversely affect the Town’s residential areas. With respect to intergovernmental coordination/cooperation, the Town should work closely with both Palm Beach County and Martin County adjacent local governments and any other appropriate governmental entities to ensure that future transportation planning, roadway construction, and development approvals are supportive of efforts to protect and enhance existing and proposed residential neighborhoods. GOAL 4: To accommodate a variety of regional, intercounty, intracounty, and local travel demands in ways that minimize traffic congestion; encourage pedestrians; reduce the overall amount of travel for daily goods and services; and protect the integrity of existing neighborhoods. Objective 4.1: The Town of Jupiter will continue to study and evaluate whether or not an additional intercounty or intracounty transportation corridor for the area west of Loxahatchee River Road, east of I-95, and north of Indiantown Road is desired or needed in this geographic area; and assuming such a corridor is necessary, shall coordinate/cooperate with adjacent local governments and any other appropriate and governmental entities to identify the appropriate thoroughfare route of that corridor. Policy 4.1.1 The Town of Jupiter, in coordination/cooperation with Palm Beach County, Martin County, the Village of Tequesta, the Metropolitan Planning Organization, and other appropriate governmental agencies, shall encourage and participate in long range transportation planning efforts that protect existing or proposed residential neighborhoods by locating new or expanded roadways in a manner that does not adversely affect such neighborhoods. Policy 4.1.2 The Town of Jupiter, to the extent possible, shall encourage the construction of new roads and the expansion of existing roads in a manner that protects existing or proposed residential neighborhoods by diverting or eliminating the flow of non-resident or through traffic, and requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan. Policy 4.1.3 The Town Shall rReview planning and other data generated by the Town’s western interchange study and other appropriate sources to determine whether or not the County’s western corridor should be aligned with Island Way or other right-of- way in Martin County west of The Shores. Policy 4.1.4 The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. Policy 4.1.5 In the event an additional intercounty or intracounty roadway serving Palm Beach County and Martin County via Island Way or other right-of- way is necessary, this corridor’s route shall be aligned to a north-south route west of the present Jupiter Community Park. Policy 4.1.6 If an additional intercounty or intracounty corridor is constructed, the Town shall coordinate/cooperate with adjacent local governments to not align the corridor so as to not adversely impact existing residential neighborhoods. Policy 4.1.7 The Town shall coordinate/cooperate with Palm Beach County, Martin County, the Village of Tequesta, and any other affected governmental agencies to establish an overall vehicular circulation plan, including any additional north-south transportation corridors needed to alleviate existing or anticipated traffic congestion. Policy 4.1.8 The Town shall coordinate/cooperate with Martin County, Palm Beach County, the Village of Tequesta, and any other affected governmental agencies to discourage the creation of intercounty or intracounty traffic circulation patterns that provide ingress and egress to residential or nonresidential developments in Martin County solely through the Town of Jupiter and Palm Beach County. [Additions indicated by underlined words and eliminated words struck through]. Pursuant to the Remedial Amendment, Jupiter essentially modified the Original Plan Amendment, found to be not in compliance by the Department, by: Changing the term “cooperate” to “coordinate/cooperate”; Indicating that Jupiter will involve “adjacent local governments and any other appropriate governmental entities” in its efforts; and Modifying Policy 4.1.4 (formerly numbered Policy 1.4.4) as follows: The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified with respect to based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. [Additions indicated by underlined words and eliminated words struck through]. The Adequacy of Data and Analysis. The data and analysis submitted by Jupiter in support of the Original Plan Amendment and found to be inadequate by the Department consisted of the Joint Traffic Study and Jupiter’s analysis thereof. No additional data and analysis has been provided by Jupiter. The Department, while disagreeing with Jupiter and Intervenor as to the relevancy and adequacy of the Joint Traffic Study, suggested at hearing that the Remedial Amendment is supported by data contained in the Plan. In particular, the Land Use Intergovernmental Coordination and Traffic Circulation Elements. The stated purpose of the Joint Traffic Study was to: . . . determine existing traffic patterns crossing the Martin/Palm Beach Count Line in the vicinity of Jupiter and Tequesta for todays travel and to make a reasonable projection of probable future traffic patterns when the area reaches build-out that the engineering professionals of the affected jurisdictions could agree upon. Elected officials would then be able to look at regional roadway issues and needs required to meet the projected levels of traffic. Joint Exhibit 7 The Joint Traffic Study was a collaborative effort of the local governments involved in these proceedings. In order to understand whether the Joint Traffic Study provides data and analysis which can be relied upon to support the Remedial Amendment, it must be understood what portion of the Remedial Amendment is at issue. The Remedial Amendment reflects several policy choices of Jupiter. For example, the Remedial Amendment reflects the policy of Jupiter of protecting the character of its neighborhoods. See, e.g., Objective 4.1. The data of the Plan is sufficient to support this broad, general policy. Policy 4.1.4 of the Remedial Amendment also reflects a policy choice of Jupiter that the connection of Northfork Drive and Island Way, or any similar connection, should be discouraged. This policy choice reflects a conclusion that such a connection is not necessary or, if necessary, the detriments to the surrounding neighborhoods of the Northfork/Longshore Corridor will outweigh the need for the connection. Neither the Plan nor the Joint Traffic Study support these conclusions. Policy 4.1.5 and 4.1.8 also go beyond establishing a general policy of protecting neighborhoods. Policy 4.1.5 reflects a policy of Jupiter that if there is a need to connect Island Way with a corridor in Palm Beach County it should be accomplished through construction of a Western Corridor. Policy 4.1.8 reflects a policy that no ingress and egress should be allowed through any neighborhood in Jupiter. While a general policy of protecting neighborhoods may be supported by the Plan, the application of Policies 4.1.4, 4.1.5 and 4.1.8 requires more than a mere assumption that the connection of Northfork Drive to Island Way will result in detriments that outweigh any benefits of the connection, that the Western Corridor is THE method of connection between Martin and County and Palm Beach County which should be pursued, and that under no circumstances should ingress and egress be allowed through any neighborhood. Such conclusions require more. Jupiter has recognized that plan provisions which control land use and development activities and those addressing specified minimum criterion of the law must be supported by the highest level of data and analysis. Jupiter suggests, however, that the Remedial Amendment is merely an “aspirational provision, one which projects more subjective community-desired-outcomes and is not intended to satisfy one of the mandated minimum criteria areas”. Jupiter argues, therefore, that the Remedial Amendment “demands a less rigorous foundation in data and analysis.” While Jupiter may be correct that the policy choice of the Remedial Amendment concerning general neighborhood protection is aspirational, it is not correct as to the other policy choices concerning the need for the connection of Northfork Drive and Island Way, the need for the Western Corridor or the need to prevent all ingress and egress road in Jupiter. Those policy choices directly reflect land use and development activities as they relate to transportation. Simply assuming that the connection of Northfork Drive and Island Way and that ANY road providing ingress and egress through a Jupiter neighborhood will be harmful to the neighborhoods that border the Northfork/Longshore Corridor ignores the possibility that the connection could be beneficial to other areas of Jupiter due to reductions in traffic in those areas. It also ignores the possibility that steps can be taken to minimize any detrimental impacts. It also ignores the possibility that there may be an insignificant increase in traffic as a result of the connection and/or that the impacts of any increase in traffic may be eliminated through design modifications of the Corridor. Likewise, Jupiter’s assumption that the only way of resolving the need for north-south connector roads between Martin and Palm Beach Counties or within north Palm Beach County should only be accomplished by a Western Corridor ignores other solutions that will better serve the residents of the areas involved. Jupiter’s assumption or intuition also fails to take into account the impact of its policy choices on other governments. For example, the impact on the residents surrounding Church Street if the connection is not made is reflected in the Joint Traffic Study. Jupiter’s assumption allows it to ignore this possible impact. The Joint Traffic Study is deficient for a number of reasons. First, the Joint Traffic Study does not reflect current conditions in the area studied. At the time the Original Plan Amendment was submitted, Jupiter also submitted a land use change for a 183 acre tract of land known as the Weiser Tract. The submittal reflected a change of 158 acres from industrial use to residential use. The Joint Traffic Study had been prepared a year and a half prior to this proposed change and, therefore, does not take this significant modification into account. The modification of the land use of the Weiser Tract could have a significant impact on traffic and, therefore, the conclusions and information contained in the Joint Traffic Study. Because of the land use modification not reflected in the Joint Traffic Study, the Joint Traffic Study cannot be said to constitute the best available data to support the Remedial Amendment. The Joint Traffic Study purports to project or forecast traffic volumes in the area as a result of the build-out of land uses reflected in the comprehensive plans of the local governments involved in the study. In fact, however, the data gathered for the study was data on development and zoning, not projected plan build-out. The evidence failed to prove that development and zoning reflects projected plan build-out. Therefore, it cannot be concluded that the data contained in the Joint Traffic Study was collected and applied in a professionally acceptable manner. The methodology utilized for the Joint Traffic Study also does not support its use as data and analysis to support Jupiter’s policy choice concerning the connection of Northfork Drive and Island Way. The Joint Traffic Study was not intended to provide a formal transportation analysis of alternatives from which one of the local governments involved would elect one alternative. While the Joint Traffic Study may utilize a methodology used by traffic planning engineers on an everyday basis, the evidence failed to prove that traffic planning engineers would use it for the purpose that Jupiter has used it. For Jupiter to rely on the Joint Traffic Study to conclude that the connection of Northfork Drive and Island Way is not necessary and that the policies reflected in Policies 4.1.5 and 4.1.8 are necessary, it would be necessary for the Joint Traffic Study to include an alternative analysis or the data to perform such an analysis. It does not. Such an analysis should compare construction costs and environmental impacts of alternative traffic alignments. Such a study should also include short and long-range projections for traffic conditions, land use data, level-of-service standards and functional classifications for area roads, or existing level-of- service standards. Jupiter’s analysis of the Joint Traffic Study is also inadequate. The Joint Traffic Study discusses four different scenarios. Jupiter, however, elected to only utilize two of those scenarios. As to the existing Plan, the portions of the Plan relied upon by Jupiter and the Department, while recognizing the importance of the coordination of issues related to roads and traffic safety, do not support the specific objective of the Remedial Amendment to discourage the connection of specific roads, the location of the Western Corridor or the prevention of roads of ingress and egress in Jupiter. Nor do the provisions of Plan which provide an inventory of pertinent agencies and provide that the agencies should be contacted and worked with on common problems. While data and analysis support the other provisions of the Remedial Amendment, data and analysis does not support Policies 4.1.4, 4.1.5 and 4.1.8. Conditional Policy or Self-Amending Policy. Policy 4.1.4 provides that the general policy of Jupiter is (in cooperation/coordination with other agencies) to discourage the connection of Northfork Drive and Island Way UNLESS there is a “demonstrated need” for the connection. It has been suggested by Petitioners that this provision creates a self- amending policy--a policy that may change without the need to follow the amendment procedures required in the Act. In support of this position Petitioners have argued that if demonstrated need is found by Jupiter to have been shown, the policy to discourage automatically ceases to be the policy of Jupiter even though the amendment process of the Act has not been fulfilled--that the policy of discouragement becomes “inoperative”. A self-amending policy is one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted. Typically, a self-amending policy is one that provides that certain things will occur if some other event, such as the amendment of a law by another jurisdiction, takes place. For example, if the policy is “X” unless law “Z” is modified, then the policy will be whatever law “Z” requires even though law “Z” may be amended in the future. Because it cannot be known how law “Z” may be amended in the future, policy “X’s” reliance on law “Z” is self-amending.. Obviously, that is not the type of policy at issue in this proceedings. A conditional policy, which Jupiter suggests Policy contains, is one which may change if certain clear contingencies or alternatives, described at the time of adoption of the Policy, are provided. For example, a policy that allows a general residential density but provides that, if land is to be used for affordable housing, a different density will be allowed, is an example of a conditional policy. The policy at issue in this proceeding is not a self- amending policy. It sets out a clear general policy: to discourage the connection of Northfork Drive and Island Way. And it sets out specific conditions for changing that policy: the showing of demonstrated need, which is further defined by the policy. The evidence failed to prove that Policy 4.1.4 is a self-amending policy. Unbridled Discretion? Petitioners have suggested that Policy 4.1.4, in particular, the portion of the Policy providing for the determination of whether there is a “demonstrated need” for a connection of Northfork Drive and Island Way, vests unbridled discretion in Jupiter. In support of this position, Petitioners have pointed to the failure of Policy 4.1.4 to specify the following: a) the specific office or person that will make the determination; and (b) the specific time(s) when the determination will be made. Petitioners have also argued that the Policy fails to specify sufficient objective criteria to be considered in determining whether there has been a showing of demonstrated need and argue that Jupiter is not capable of performing the balancing of need against its policy to protect its neighborhoods. As to the lack of specificity as to which office or person will perform the needs analysis, a reading of the Plan, with the Remedial Amendment, makes it clear that the ultimate responsibility rests with Jupiter and its governing body. Whether the alleged need is raised from within or without Jupiter need not be specified. The Act does not require more than that Jupiter be ultimately responsible. As to when the analysis will or may be performed, the lack of specificity would not be fatal in and of itself if the policy to discourage were supported by data and analysis. If the general policy to discourage the connection were supported by data and analysis, then the needs analysis could be performed at any time. Having failed to provide data and analysis to support the general policy, the lack of specificity as to when an initial determination of need will take place is contrary to the Act. The evidence also failed to prove that the definition of “demonstrated need” is inadequate. The “demonstrated needs” analysis specified by the Policy is similar to the type of analysis that would be required for Jupiter to make the policy choices concerning the lack of need for the connection of Northfork Drive and Island Way. Had it performed such an analysis before adopting the Remedial Amendment, there might have been sufficient data and analysis to support its policy choices. Finally, the question of whether Jupiter is capable of carrying out the balancing of demonstrated need and its neighborhood protection policy involves the application of the Policy. This is not an issue of whether the language of the Policy is “in compliance” with the Act. The Use of the Term “Discourage”. Evidence was presented by Petitioners to suggest that the term “discourage” as used in Policy 4.1.4 is vague and, therefore, violative of the Act. The term “discourage” is not a technical term. Therefore, it should be given its plain ordinary dictionary meaning. Whether the term, as defined in its ordinary sense, is so vague as to be violative of the Act must be determined in the context of the policy in which it is used. In this matter, the lack of specificity as to what specific actions Jupiter will take to “discourage” the connection of Northfork Drive and Island Way does not render Policy 4.1.4 so vague as to be violative of the Act. What is violative of the Act is the policy choice of Jupiter to “discourage” the connection without first adequately considering whether this particular connection should be discouraged. Inconsistency with Palm Beach County’s Thoroughfare Identification Map. Palm Beach County’s charter gives it control over the levels of service allowable on certain collector and arterial roads within the county, even if they are within the boundary of municipalities. This provision allows Palm Beach County to comprehensively plan a countywide transportation network. Palm Beach County’s responsibility for a comprehensive countywide transportation network is reflected in its comprehensive plan. In particular the plan includes a concurrency management system and a thoroughfare identification map (hereinafter referred to as the “TIM”). The TIM reflects the collector and arterial roads over which Palm Beach County exercises transportation authority. The purpose of the TIM is to identify right-of-way required to carry out Palm Beach County’s provision of a countywide transportation network. The TIM has reflected the connection of Northfork Drive and Island Way as part of the countywide transportation network since 1989. Jupiter suggests that the use of the word “discourage” rather than the more absolute language contained in the Original Plan Amendment, eliminates any inconsistency with the TIM. Jupiter has also suggested that all the TIM does is identify right-of-way and the Remedial Amendment does nothing to eliminate that right-of-way. Jupiter’s position concerning the TIM is rejected. The use of the term “discourage” does not eliminate the fact that Jupiter is taking the position in its Plan that Northfork Drive and Island Way should not be connected. Until demonstrated otherwise, this is the stated policy of Jupiter. The TIM on the other hand reflects a decision of Palm Beach County that the connection may be necessary for the benefit of the countywide transportation network. The narrow view of the purpose of the TIM, that it only is intended to protect right-of-way, ignores the broader purpose for which right-of-way is being protected: to insure that Palm Beach County can carry out its countywide transportation network plans. Policy 4.1.4 is inconsistent with that purpose. Impact of the Remedial Amendment on Petitioners. The Petitioners are all local governments that adjoin Jupiter. Palm Beach County has responsibility in the area at issue to insure that the road system in Palm Beach County is in place to accommodate growth as it occurs, to have an appropriately planned system that will handle growth and to maintain the system once it is in place. The Remedial Amendment eliminates one of the possible corridors which Palm Beach County has identified as necessary to carry out its responsibility. It also specifies the location of the Western Corridor as a means of solving north-south corridor needs and eliminates alternatives involving ingress and egress to Jupiter. The use of the Northfork/Longshore Corridor connected to Island Way could be accomplished at a cost of approximately $200,000.00 plus the cost of acquiring the right-of-way. The cost of constructing the Western Corridor, which has been suggested as an alternative to the connection with Island Way of Northfork Drive would be 6 to 7 million dollars. There would be other costs that may be incurred to raise the levels of service on other roads if Northfork Drive is connected with Island Way. The impact of the Remedial Amendment on Palm Beach County could result in delays in its ability to meet its responsibility to meet the needs for improvements in the road system of the area due to increased growth. The Remedial Amendment could also eliminate consideration of the connection and cause the need to pursue more costly alternative road corridors necessary to meet growth in the area. The Remedial Amendment could have the same impact on Martin County and Tequesta. Without the connection the area involved will have an additional traffic burden what will fall on the roads of Martin County, Palm Beach County and Tequesta, requiring the improvement of facilities in those jurisdiction. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The road system of the area will have to be improved to meet that increased traffic. The Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased traffic be handled by infrastructure which will have to be provided by one or more of the Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding Policies 4.1.4, 4.1.5 and 4.1.8 not in compliance with the Act. DONE AND ENTERED this 24th day January, 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1997. COPIES FURNISHED: Paul R. Bradshaw, Esquire Bryant, Miller & Olive 201 South Monroe Street Tallahassee, Florida 32301 Barbara Alterman Assistant County Attorney Palm Beach County Attorney’s Office Post Office Box 1989 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Post Office Box 3475 West Palm Beach, Florida 33402 Gary K. Oldehoff Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, Florida 33408 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas J. Baird, Esquire 11891 U. S. Highway 1 North Palm Beach, Florida 33408 Thomas G. Pelham, Esquire David Russ, Esquire APGAR & PELHAM 909 East Park Avenue Tallahassee, Florida 32301 Bob Bradley Executive Office of the Governor Administration Commission 1601 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission 2105 The Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 The Capitol Tallahassee, Florida 32399-0001
Findings Of Fact The road segments in question are located totally within the City of Palm Bay in Brevard County and the Urbanized Area designated by Petitioner as "Cocoa-Melbourne." The segments are: Malabar Road between Minton Road on the west and Interstate 95 on the east; Palm Bay Road between Babcock Street on the west and Robert J. Conlan Boulevard on the east; and Robert J, Conlan Boulevard in its entirety from Palm Bay Road on the southwest to U.S. Route 1 on the northeast. At all material times, the above-described road segments ("Road Segments") have been classified as Urban Collector Roads and have been under the jurisdiction of Brevard County. The Palm Bay Road segment in question ("Palm Bay Segment") runs in an east-west direction a distance of approximately 1 1/2 miles. Palm Bay Road lies entirely inside the City of Palm Bay except for a portion of the road running between Minton Road on the west and about one-eighth of a mile west of Babcock Road on the east. This part of Palm Bay Road, which is west of the Palm Bay Segment, marks the boundary between the City of Palm Bay and the unincorporated area of Brevard County. The parties stipulated that the center line of this part of Palm Bay Road constitutes the boundary. Palm Bay Road west of the Palm Bay Segment is classified as an Urban Collector Road and is assigned to Brevard County. Petitioner does not propose changing this assignment. Babcock Street, which marks the westerly end of the Palm Bay Segment, is classified as an Urban Minor Arterial Road. Palm Bay Road east of the Palm Bay Segment is classified as an Urban Collector Road entirely within the limits of the City of Palm Bay and assigned to Respondent. Petitioner does not propose changing this assignment and Respondent does not challenge it. Palm Bay Road west of Robert J. Conlan Boulevard is designated by Petitioner as County Road 516. In 1981, Petitioner, in an effort to reflect traffic patterns, re- designated the east end of County Road 516 so that it no longer followed Palm Bay Road (with a couple of turns) to U.S. 1, but instead turned north and followed Robert J. Conlan Boulevard to its termination at U.S. 1. At the same time, Petitioner designated Palm Bay Road east of Robert J. Conlan Boulevard plus short sections of Main Street and Hickory Avenue as County Road 5070. Robert J. Conlan Boulevard runs north off Palm Bay Road and then in a northeasterly direction to U.S. 1 for a total distance of 1.7 miles. The Malabar Road segment in question ("Malabar Segment") runs in an east-west direction a distance of 2.443 miles. The Malabar Segment is part of Malabar Road, which runs east into unincorporated Brevard County. The east end of the Malabar Segment is marked by an interchange at Interstate 95. East of the interchange, Petitioner has classified Malabar Road as an Urban Minor Arterial Road and assigned it to the State of Florida. Malabar Road runs west of Minton Road, but remains within the city limits and terminates at the boundary between the city and the unincorporated area of the county. Petitioner introduced an Urbanized Area Characteristic Evaluation Points scoresheet for each of the three Road Segments, although the point sheet for the Palm Bay Segment included County Road 5070. Petitioner's expert witnesses, although lacking any detailed knowledge of the roads and road segments in the subject Urbanized Area, opined that the Road Segments were properly classified as Urban Collector Roads. Respondent's expert witness was its City Engineer, Harry Lampe. He testified that Palm Bay Road is one of only two east-west arteries serving downtown Palm Bay, which is an extremely fast-growing area whose population center has dramatically shifted westward in the past eight years to a point in the vicinity of Interstate 95. Mr. Lampe testified that specific characteristics of all three Road Segments were undervalued by Petitioner and opined that the Road Segments should be classified as Urban Minor Arterial Roads. No evidence was presented, however, as to the relative value of the points that either Petitioner or Respondent assigned to any of the Road Segments. According to Respondent's map, the traffic volume on the greater part of the Palm Bay Segment significantly exceeds the traffic count for the portion of Malabar Road that Petitioner has classified as an Urban Minor Arterial Road. Petitioner offered no traffic count for the Palm Bay Segment. Petitioner's traffic count covered a road segment consisting of the Palm Bay Segment plus the less-traveled County Road 5070. It was never clear if Petitioner's traffic count even reflected traffic conditions on the Palm Bay Segment. The segment of Palm Bay Road between Minton Road and Robert J. Conlan Boulevard and the segment of Malabar Road between U.S. 1 and Interstate 95 are comparable in length, service as the only east-west arteries in the Palm Bay area, and interstate access by way of an interchange. The interchange is under construction at Palm Bay Road--a fact that Petitioner admittedly did not take under consideration. Although there was no evidence as to the number of lanes, divided-or-undivided status, or speed limit of Malabar Road east of Interstate 95, the Palm Bay Segment received the maximum points for lanes and divided status and was in the second highest category as to speed limit. The five characteristic evaluation points it conceivably could lack if the above- described segment of Malabar Road had a higher speed limit were offset by the heavier traffic on the above- described segment of Palm Bay Road.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order assigning Malabar Road between Minton Road and Interstate 95 to the City of Palm Bay. DONE and ORDERED this 20th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990. COPIES FURNISHED: Ben Watt, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Leonard A. Carson John D.C. Newton, II Lu Ann Snider Carson & Linn, P.A. Mahan Station 1711-D Mahan Drive Tallahassee, FL 32308 Vernon L. Whittier Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 =================================================================
Findings Of Fact Petitioner, Flamingo Lake RV Resort, Inc., operates a camping facility located in Duval County, Florida, located at the interchange of 1-295 and SR 115 or Lem Turner Road. The Petitioner applied to the Department pursuant to Section 479.26, Florida Statutes, and Chapter 14-85, Florida Administrative Code, to participate in the logo program at the interchange. The logo program is the means by which businesses, located within a specified distance from an interstate highway exit, are permitted to display their logo sign on information panels placed on the interstate highway near the applicable exit. Such panels identify motorist services available at the exit categorized by "Food," "Gas," "Lodging" or "Camping." The Petitioner applied to place the logo of Flamingo Lake RV Resort on a "Camping" information panel. There are no logo panels currently at the interchange of 1-295 and SR 115. The only signage at that interchange located on the interstate right-of- way consists of a small generic sign displaying a picture of a camper underneath the exit ramp sign. The small generic camper sign is not readily noticeable. The generic sign neither identifies the particular campground which it references, nor supplies directions to the campground. Signage on a logo panel is important because it assists a traveler in finding a particular campground and provides directions to the campground. By letter dated October 17, 1990, the Department notified Petitioner that its application was denied, because: The interchange on 1-295 is "excluded from the program." The interchange does not fit the definition of "rural interchange" in that it is located in an urban area or is bordering the urbanized area of Jacksonville, and the number of eligible businesses at the interchange exceeds the logo sign's panel capacity. Pursuant to unpublished policy, the Department has excluded all of 1- 295, the interstate beltway around Jacksonville, Florida, from participating in the logo program. The policy was adopted at some point in time in 1987, by the Department's District Secretary. The policy was established because 1-295 is in close proximity to the core city and anticipated that development would move in that direction. 1-295 is a circumferential route with crossroads that radiate into and out of the City of Jacksonville. Exiting 1-295, you can head toward Jacksonville and encounter an increasing number of services. There has been no logo signing on 1-295 in Duval County, and other areas excluded from the logo program in the District are U.S. 441 in Alachua County and 1-75, 39th Avenue and 1-75 in Alachua County, State Road 26, 24, and 121 (at 1-75). Areas surrounding the interchange, including Petitioner's property, are classified as "rural areas" by the Census Bureau. The characteristics of the interchange are marked by farming, pine forests containing abundant wild life, and a large lake located on Petitioner's campground. Other than Petitioner's campground facility, there is no commercial or significant residential development located at or near the interchange, and the area is designated open-rural for zoning purposes. Petitioner's property is not serviced by city water or sewer lines. The interstate speed limit at the interchange is 65 mph, and the speed limit along Lem Turner Road at the interchange is 55 mph. Such speed limits are characteristic of a rural, rather than an urban location. The interchange of 1-295 and SR 115 is located in a rural setting. Traveling in a northerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or residential development is encountered until the traveler reaches Callahan, Florida, a distance in excess of ten miles from the interchange. Traveling in a southerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or significant residential development is encountered until reaching the Lem Turner Road/Dunn Avenue intersection, a distance of approximately one mile from the interchange. Within 1.5 miles of the interchange, there are only two gas station businesses potentially eligible to participate in the logo program. Both gas stations are located at the Dunn Avenue/Lem Turner Road intersection, at a distance of 1.2 miles from the interchange. Within three miles of the interchange, the only business eligible for the restaurant logo program is a McDonald's restaurant located on Lem Turner Road just south of its intersection with Dunn Avenue. None of the other restaurants located within a three mile distance of the interchange meet the restaurant eligibility requirements due to limited seating capacity or the limited hours of business. McDonald's desires to participate in the logo program at the interchange. Other than Petitioner's campground, there are no other campgrounds located within three miles in either discretion along the Lem Turner crossroad from the interchange. There are no lodging facilities located within three miles of the interchange. Lodging facilities are located at the Dunn Avenue/I-95 intersection, a distance over three miles but less than six miles of the 1-295 and SR 155 interchange. To reach these facilities, however, the northbound traveler must drive south on Lem Turner Road for approximately 1 mile, then turn east on Dunn Avenue and travel approximately three miles to reach the interchange of 1-95 and Dunn Avenue. For persons traveling south, the more direct route to the I- 95/Dunn Avenue interchange is to continue south on 1-95 approximately one mile rather than to turn onto 1-295. The District Logo Coordinator did a survey of the volume of business in each category and determined that the panel capacity for two of the types of mother board would be exceeded within the six-mile distance. In reaching this conclusion, the Department considered businesses within six miles because the Department did not feel that there were enough qualifying businesses within three miles. However, within six miles, the Department determined there would be so many qualifying businesses that the logo mother board would be exceeded and when the logo mother board capacity is exceeded, all logo panels must come down. Therefore, the Department denied all logo panels. There were qualifying or qualifiable gas station(s), restaurant(s), and campground(s) accessible from the intersection. Of the three logo categories, only lodging lacked a qualifier within three miles. Only when the radius of inquiry extended to six miles and left Lem Turner Road to go to the Dunn Avenue/I-95 interchange was a lodging qualifier found. At this point, the Department determined that there were too many lodgings and precluded all logo signs in all categories. Respondent's Exhibit 1 is a map of the urbanized area in the vicinity of Jacksonville, Florida. This designation of urbanized area by the Department was approved by the Federal Highway Administration. This exhibit reveals that the 1-295/SR 115 interchange is located in the urbanized area. On November 30, 1990, the Department published notice in the Florida Administrative Weekly announcing a proposed change to Chapter 14-85 of the Florida Administrative Code. Notice of the proposed rule change was not given to Petitioner individually; however, individual notice was not required. The amendments to Chapter 14-85 became effective March 20, 1990. This administrative hearing was held on March 19, 1991. The effect of the amendments to the rules under Chapter 14-85 removes the exception to the "Rural Interchange" definition found in Rule 14- 85.003(10)(b), and would deny Petitioner the right to erect a logo sign at the interchange if the interchange is found to be located within an urban or urbanized area. The amendment would make any interchange located within an urban or urbanized area ineligible to participate in the logo program, regardless of whether the number of eligible businesses at the interchange exceed the logo sign's capacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for eligibility in the logo program for a location at Exit 13 on Interstate 295 be denied because said location does not qualify as a rural interchange under the current rule DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 File with the Clerk of the Division of Administrative Hearings this 24th day of April, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7304T Petitioner's Proposed Findings of Fact 1-4. Adopted. 5-6. Adopted in part and combined with paragraph 4. The part rejected was irrelevant. Adopted. Adopted and divided into paragraphs 7 and 8. 9-10. Adopted and restructured. 11-12. Adopted. 13-14. Conclusion of law. 15-21. Adopted. Respondent's Proposed Findings of Fact 1-3. Adopted. COPIES FURNISHED: John S. Ball, Esq. Michael W. Fisher, Esq. Fisher, Trousey, Leas & Ball 2600 Independent Square Jacksonville, FL 32202 Vernon L. Whittier, Jr., Esq. Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue in this case is whether land development regulations of Collier County are consistent with the Collier County Growth Management Plan.
Findings Of Fact The Parties The Citizen's Political Committee, Inc. (Citizens) is a nonprofit corporation registered in the State of Florida on April 18, 1990. Citizens maintains an office in Collier County. Citizens is composed of natural persons who reside in Collier County. James K. Kessler (Kessler) is the Chairman of Citizens. He owns property in Collier County, where he also resides. He and other members of Citizens regularly drive on the roads of Collier County. Sewell H. Corkran (Corkran) owns real property in Collier County, where he also resides. He regularly drives on the roads of Collier County. The Challenges Adoption of Plan, Land Development Regulations, and Plan Amendments On January 10, 1989, Collier County adopted its Growth Management Plan. On March 21, 1990, the County adopted land development regulations (LDR's) to implement the Growth Management Plan. The LDR's relevant to these cases are contained in the Adequate Public Facilities Ordinance (APFO), which is described in Section IV of the Findings of Fact. On May 1, 1990, five weeks after the adoption of the LDR's, the County adopted amendments to the Growth Management Plan (as amended, the Plan). Relevant portions of the Plan are described in Section III of the Findings of Fact. 2/ Citizens and Kessler: DOAH Case No. 90-8101GM On July 30, 1990, Citizens and Kessler filed written notice with the County Commission alleging that the APFO was inconsistent with the Plan. On September 7, 1990, DCA received a petition from Citizens and Kessler requesting administrative review of the consistency between the APFO and Plan. On November 26, 1990, DCA conducted an informal hearing in Naples. On December 6, 1990, DCA entered a Determination of Consistency and Order on Motion to Dismiss. The Determination of Consistency notes that Citizens and Kessler assert that APFO provisions are inconsistent with Sections 163.3177(10)(h) and 163.3202(2)(g), Florida Statutes, and Rule 9J-5.0055, Florida Administrative Code. Citizens and Kessler objected to the APFO provisions setting standards for the issuance of a Certificate of Public Facility Adequacy 3/ for potable water, sanitary sewer, solid waste, drainage, parks, and roads. The objection is that the APFO allows development where impacts will occur prior to 1994 if construction of the required facility is in the five- year schedule of capital improvements prior to October 1, 1994. The Determination of Consistency notes without discussion that the County argued that compliance with the cited statutes and rules is irrelevant because the sole issue is limited to the issue of consistency with the Plan. Concluding that Citizens and Kessler have standing as substantially affected persons, the Determination of Consistency rejects their challenge to the APFO because the LDR is: not in conflict with the Growth Management Plan because [it is] specifically authorized by the Plan. [The] ordinance. . . take[s] action in the direction of realizing goals, objectives and policies of the [Plan], and implement[s] significant portions of the plan. . . . [T]he APFO implements the concurrency management program specified in the plan. On December 20, 1990, Citizens and Kessler served a Petition for Formal Administrative Hearing, which commenced DOAH Case No. 90-8101GM. They alleged that 8.3.5 of the APFO is inconsistent with the Plan and inconsistent with the requirements of Sections 163.3177(10)(h) and 163.3202(g), Florida Statutes, and Rule 9J-5.0055, Florida Administrative Code. In particular, the petition alleges that 8.3.5.1.1.5 (potable water), 8.3.5.2.1.5 (sanitary sewer), 8.3.5.3.1.5 (solid waste), and 8.3.5.5.1.5 (parks and recreation) permit development whose impacts occur prior to the availability of required public facilities. The objection is that, prior to October, 1994, public facilities are deemed available if construction of the required public facility is in the five-year schedule of capital improvements prior to October 1, 1994. An interlocutory order limited the issues that Citizens and Kessler could raise to questions of consistency between provisions of the APFO and the Plan. Consistent with the Department of Community Affairs' interlocutory order, the Conclusions of Law explain the lack of jurisdiction in the subject administrative proceeding over claims that the LDR's fail to comply with other requirements of law. Citizens and Kessler filed an Amended Petition for Formal Administrative Hearing on March 1, 1991. Focusing upon the above-cited sections of the APFO, the Amended Petition alleges that the APFO is inconsistent with Capital Improvement Element (CIE) Goal 1, Objective 1.2, Objective 1.4, and Objective 1.5; and Future Land Use Element (FLUE) Objective 2, Objective 3, Policy 3.1.G, and Policy 3.1.L. At the hearing, over the objection of the County, Citizens and Kessler were granted leave to file, on July 23, 1991, a Second Amended Petition for Formal Administrative Hearing. They alleged that the APFO is deficient in three respects: the determination of demand, the determination of supply or capacity, and the failure to prevent the issuance of Certificates of Public Facility Adequacy that authorize demand that will exceed capacity and violate adopted level of service [LOS] standards. The Second Amended Petition alleges that the three above-cited defects in the APFO appear in three sections of the APFO. The Second Amended Petition alleges that each of these sections is inconsistent with various provisions of the Plan. The Second Amended Petition alleges that APFO 7.2, which involves the Annual Update and Inventory Report, 4/ overstates public facility capacity and understates public facility demand. APFO 7.2 thus is allegedly inconsistent with CIE Goal 1; Objective 1.1 and Policy 1.1.1; Objective 1.2 and Policies and 1.2.1; Objective 1.4 and Policy 1.4.4; Objective 1.5 and Policy 1.5.5; and FLUE Objective 2 and Policy 2.1; Objective 3 and Policies 3.1.G and 3.1.L. The Second Amended Petition alleges that APFO 7.4 establishes Areas of Significant Influence 5/ for roads that are deficient or potentially deficient, based on traffic counts only. Allegedly lacking standards for setting boundaries, the Area of Significant Influence allegedly expires one year after it is established regardless whether the deficiency has been eliminated. APFO 7.4 thus is allegedly inconsistent with FLUE Objective 2 and Policy 2.1; CIE Goal 1; Objective 1.4 and Policy 1.4.4; and Objective 1.5. The Second Amended Petition alleges that APFO 8.3.5, which sets the standards for review of applications for Certificates of Public Facility Adequacy, does not require any assessment of actual facility capacity or of capacity required to meet the needs of previously issued Certificates of Public Facility Adequacy. Sections 8.3.5.1.1.5 (potable water), 8.3.5.2.1.5 (sanitary sewer), 8.3.5.3.1.5 (solid waste), and 8.3.5.5.1.5 (parks and recreation) allegedly allow development whose impacts occur prior to the availability of required public facilities. The objection is that, prior to October, 1994, public facilities are deemed available if construction of the required public facilities is in the schedule of capital improvements before October 1, 1994. Section 8.3.5.6 allegedly requires that certificates be issued for road facilities for any development outside a designated Area of Significant Influence without regard to the demand that the development will generate and the actual available capacity of affected roads. The APFO thus is allegedly inconsistent with CIE Goal 1; Objectives 1.4 and 1.5; Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objective 2 and Policy 2.1; and Objective 3 and Policies 3.1.G and 3.1.L. Corkran, DCA, Citizens, and Kessler: DOAH Case Nos. 91-0858GM and 91-0994GM On October 15, 1990, Corkran filed written notice with the County Commission alleging that the APFO is inconsistent with the Plan. On November 21, 1990, DCA received a petition filed by Corkran requesting administrative review of the consistency of the APFO and the Plan. DCA conducted an informal hearing in Naples on January 4, 1991. On January 22, 1991, DCA issued a Determination of Consistency and Standing of Petitioner. The Determination of Consistency finds that Corkran owns property and resides in Collier County and that he regularly drives the roads of the County. The Determination of Consistency concludes that Corkran has standing as a substantially affected person. The Determination of Consistency notes that Corkran asserts that APFO and 4.10.2.4 are inconsistent with CIE Policy 1.5.3.D and 1.5.3.E. 6/ The Determination of Consistency states that Corkran alleges three areas of inconsistency between APFO 4.10.2.4 and CIE Policy 1.5.3.E. 7/ First, APFO 4.10.2.4 allegedly does not require that construction of the required facility be included in the State's five-year work program or County's five-year schedule of capital improvements. The APFO provision allegedly requires only that the required capital road improvement be included in the five-year schedule and does not ensure that the facility will be available when the impact of development occurs. Corkran's second allegation is that APFO 4.10.2.4 does not apply to impacts of development occurring prior to October 1, 1994, as CIE Policy 1.5.3.E does. Corkran's third allegation is that APFO 4.10.2.4 does not provide that any development order issued pursuant to a concurrency finding be conditional. Corkran asserts that the permit should be suspended and further development stopped if, without a Plan amendment, the required facility is delayed, deferred or removed from the State's five-year work program or County's five-year schedule of capital improvements; annual funding is insufficient to maintain the five-year schedule of capital improvements; or construction of the required facility is not undertaken in accordance with the State's five year work program or County's five-year schedule of capital improvements. Corkran alleges that this omission allows development to proceed although the required road facilities are no longer scheduled for construction by the State or County. The Determination of Consistency concludes that the APFO is consistent with CIE Policy 1.5.3.D and E with one exception. The exception involves the requirement in Policy 1.5.3.E that a development order must be conditional when it is issued pursuant to a concurrency finding based on a capital improvement in the five-year schedule. The APFO is allegedly missing a condition that would suspend the development order and stop further development if construction of the required public facility, on which the development order relied, were delayed or eliminated. The Determination of Consistency notes that APFO 8.3.1.1 imposes the necessary conditions upon all development orders except "final development orders." The Determination of Consistency concludes that the exception is inconsistent with CIE Policy 1.5.3.E, which requires that the condition be attached to all development orders. The Determination of Consistency adds that "the APFO" is inconsistent with CIE Policy 1.5.3.E because of the APFO's failure to suspend development orders and stop further development if construction of a required public facility is delayed or eliminated after a concurrency determination has been made in reliance upon that public facility. The Determination of Consistency determines: Because the APFO provisions do not include significant requirements of CIE Policy 1.5.3.E, it [sic] does not further or implement the policy . . .. On February 6, 1991, Corkran and DCA filed a Request for Hearing. The Request for Hearing recites that, on January 22, 1991, DCA issued a Determination of Consistency and Standing of Petitioner, which determined that the APFO is consistent with the Plan in all areas challenged by Corkran except CIE Policy 1.5.3.E. The request for hearing demands a final order confirming DCA's determination of inconsistency and recommending that the Administration Commission impose sanctions if Collier County fails to amend the APFO to eliminate the inconsistency. On February 7, 1991, Corkran filed a document styled, "Petitioner Requests a Hearing by the Department of Administrative Hearings," as well as a separate "Petitioner's Fact Sheet." Corkran alleged that APFO 4.10.2.3 is inconsistent with CIE Policy 1.5.3.D and APFO 4.10.2.4 is inconsistent with CIE Policy 1.5.3.E. On March 29, 1991, Corkran filed an Amended Petition re Standing and Challenge to LDR of APFO No. 90-24. The Amended Petition restates the two bases of inconsistency set forth in the preceding paragraph. Citizens and Kessler subsequently intervened on behalf of Corkran and DCA in DOAH Case Nos. 91-0858GM and 91- 0994GM. The Plan CIE Goal 1 is: To provide adequate public facilities concurrent with new development in order to achieve and maintain or exceed adopted standards for levels of service. CIE Objective 1.1 states: Identify and define types of public facilities for which the County is responsible, establish standards for levels of service for each such public facility, and determine what quantity of additional public facilities are needed in order to achieve and maintain the standards. CIE Policy 1.1.1 provides: The County shall establish standards for levels of service for three categories of public facilities, as follows: Category A public facilities are facilities which appear in other elements of this comprehensive plan, including arterial and collector roads, surface water management systems, potable water systems, sanitary sewer systems, solid waste disposal facilities, and parks and recreation facilities. The standards for levels of service of Category A County provided public facilities shall apply to development orders issued by the County and to the County's annual budget, and to the appropriate individual element of this Comprehensive Plan. The standards for levels of service of Category A facilities which are not County provided shall apply to development orders issued by the County and to the appropriate individual element of this Comprehensive Plan, but shall not apply to the County's annual budget. * * * CIE Policy 1.1.2 states: The quantity of public facilities that is needed to eliminate existing deficiencies and to meet the needs of future growth shall be determined for each public facility by the following calculation: Q = (S x D) - I Where Q is the quantity of public facility needed, S is the standard for level of service, D is the demand, such as the population, and I is the inventory of existing facilities. The calculation will be used for existing demand in order to determine existing deficiencies. The calculation will be used for projected demand in order to determine needs of future growth. The estimates of projected demand will account for demand that is likely to occur from previously issued development orders as well as future growth. There are three circumstances in which the standards for levels of service are not the exclusive determinant of need for a public facility: Calculated needs for public facilities in coastal high hazard areas are subject to all limits and conditions in the Coastal Management and Future Land Use Elements of this Growth Management Plan. Replacement of obsolete or worn out facilities, and repair, remodeling an renovation, will be determined by the Board of County Commissioners upon the recommendation of the County Manager. Public facilities that provide levels of service in excess of the standards adopted in this Growth Management Plan may be constructed or acquired at any time as long as the following conditions are met: the facility does not make financially unfeasible any public facility of the same type that is needed to achieve or maintain the standards for levels of service adopted in this Growth Management Plan, and the facility does not contradict, limit or substantially change the goals, objectives and policies of any element of this Growth Management Plan. Any public facility that is determined to be needed as a result of any of the three factors listed in Section B of this Policy shall be included in the regular Schedule of Capital Improvements contained in the Capital Improvements Element. All capital improvement projects for such public facilities shall be approved in the same manner as the projects that are identified according to the quantitative analysis described in Section A of this policy. CIE Policy 1.1.5.A1 sets an LOS standard E on four named County arterials and collector roads. The remaining County arterial and collector roads are LOS standard D, although such road segments may operate at Level of Service "E" for a period not to exceed two fiscal years following the determination of Level of Service "E" in order to provide the County with time to restore Level of Service "D" by making appropriate improvements. Development orders may be issued during the two year period to the extent their issuance is consistent with Policies 1.5.3 and 1.5.4 of this Element. CIE Policy 1.1.5.A1.2. The LOS standards for State and Federal roads ranges from C to E, and no two-year "grace period" applies to such roads. CIE Objective 1.2 is: Provide public facilities in order to maintain adopted level of service standards that are within the ability of the County to fund, or within the County's authority to require others to provide. Existing facility deficiencies measured against the adopted level of service standards will be eliminated with revenues generated by ad valorem taxes and intergovernmental revenues received based on economic activity. Future developments will bear a proportionate cost of facility improvements necessitated by growth. Future development's payments may take the form of, but are not limited to, voluntary contributions for the benefit of any public facility, impact fees, dedications of land, provision of public facilities, and future payments of user fees, special assessments and taxes. CIE Policy 1.2.1 provides: The estimated capital expenditures for all needed public facilities shall not exceed conservative estimates of revenues from sources that are available to the County pursuant to current law, and which have not been rejected by referendum, if a referendum is required to enact a source of revenue. CIE Objective 1.4 states: The County shall coordinate its land use planning and decisions with its plans for public facility capital improvements by providing needed capital improvements for replacement of obsolete or worn out facilities, eliminating existing deficiencies, and future development and redevelopment caused by previously issued and new development orders. CIE Policy 1.4.4 provides: The County shall determine, prior to the issuance of building permits, whether or not there is sufficient capacity of Category A public facilities to meet the standards for levels of service for existing population and the proposed development. No building permit shall be issued by the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto unless the levels of service for the resulting development will achieve the standards in Policy 1.1.5, Category A, and the requirements for Concurrency Management as outlined in the policies within Objectives 1.5 of this element are met. CIE Objective 1.5 is: In order to coordinate land use decisions and facility planning by the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto, the County shall adopt a "Concurrency Management System" Ordinance for the scheduling, funding and timely construction of Category A public facilities concurrent with, or prior to development in order to achieve and maintain adopted standards for levels of service, and to exceed the adopted standards when possible. CIE Policy 1.5.1 provides: Beginning with the effective date of Plan Implementation through September 30, 1994, the concurrency requirement for the Potable Water, Sanitary Sewer, Drainage, Solid Waste and Recreation and Open Space Level of Service Standards, of this Growth Management Plan would be met if any of the following conditions of an established Concurrency Management System are met: The required facilities are in place at the time a building permit is issued, or a building permit is issued subject to the condition that the necessary facilities will be in place when the impact of the development occurs. The required facilities are under construction at the time a building permit is issued. The required facilities are the subject of a binding contract executed for the construction of those facilities at the time a building permit is issued. The construction of required facilities has been included in the County's adopted budget at the time a building permit is issued even though the facilities are not yet the subject of a binding contract for their construction. The construction of facilities required to accommodate the impact of development occurring before October 1, 1994 is scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994. The Schedule of Capital Improvements shall be based on a realistic, financially feasible program of funding from existing revenue sources and shall be adopted as a part of this Growth Management Plan. A plan amendment is required to eliminate, defer or delay construction of any Category A facility in the Schedule of Capital Improvements which is needed to maintain the adopted level of service standard. Any development order issued pursuant to a concurrency finding under this section is expressly conditional so that the permit shall be suspended and no further development shall be carried out in the event any of the following occur without a corresponding plan amendment: The required facilities are delayed, deferred, or removed from the adopted Schedule of Capital Improvements. Annual funding is insufficient to maintain the Schedule of Capital Improvements. Construction of the required facilities is not undertaken in accordance with the adopted Schedule of Capital Improvements. The construction of required facilities scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994 will not be delayed, deferred or removed from the Capital Improvement Element if the facilities have been relied upon for issuance of a development order. CIE Policy 1.5.3 provides: Beginning with the effective date of Plan Implementation through September 30, 1994, the concurrency requirement of the Traffic Circulation Level of Service standard of this Growth Management Plan would be met if any of the following conditions of an established Concurrency Management System are met: The required facilities are in place at the time a building permit is issued, or a building permit is issued subject to the condition that the necessary facilities will be in place when the impacts of the development occur. The required facilities are under construction at the time a building permit is issued. The required facilities are the subject of a binding contract executed for the construction of these facilities at the time a building permit is issued. The construction of required facilities has been included in the State or local Government's adopted budget at the time a building permit is issued even though the facilities are not yet the subject of a binding contract for their construction, provided that the level of service (LOS) of any road does not fall beyond the next lower LOS below the adopted standard (i.e., LOS standard is "D" peak hour, peak season and service does not fall below "E" peak hour, peak season). The construction of the facility required to accommodate the impact of development occurring before October 1, 1994 is included in the State's Five (5) Year Work Program or the County's current five (5) year Capital Improvement Schedule adopted as a part of this Growth Management Plan prior to October 1, 1994. A plan amendment is required to eliminate, defer or delay construction of any road project in the Schedule of Capital Improvements which is needed to maintain the adopted level of service standard. Any development order issued pursuant to a concurrency finding under this section is expressly conditional so that the permit shall be suspended and no further development shall be carried out in the event any of the following occur without a corresponding plan amendment: The required facility is delayed, deferred, or removed from the State's Five (5) Year Work Program or the Schedule of Capital Improvements. Annual funding is insufficient to maintain the Schedule of Capital Improvements. Construction of the required facility or facilities is not undertaken in accordance with the County's adopted Schedule of Capital Improvements or the State's Five (5) Year Work Program. The construction of required facilities scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994 will not be delayed, deferred or removed from the Capital Improvement Element if the facilities have been relied upon for issuance of a development order. There are differences between CIE Policy 1.5.1, which governs all non-road public facilities for which concurrency is required, and CIE Policy 1.5.3, which governs roads. CIE Policy 1.5.3 permits reliance upon State and County annual budgets and five year schedules. CIE Policy 1.5.1 permits reliance only on County annual budgets and five-year schedules. Also, if the County issues building permits in reliance on scheduled capital projects for non-road public facilities, the capital improvement schedule must be based on financially feasible funding sources--a requirement not found in CIE Policy 1.5.3. Last, CIE Policy 1.5.3.D contains special provisions for road LOS standards when the County issues building permits in reliance upon road projects in the current budget. CIE Policies 1.5.1 and 1.5.3 involve concurrency as it is to be applied through September 30, 1994. Following that date, permanent concurrency requirements become operative. For non-road public facilities, the County may no longer rely on scheduled public facilities when issuing building permits. However, for road public facilities, the County may continue to rely on scheduled public facilities, although new requirements are added. 8/ As is the case with CIE Policy 1.5.3, CIE Policy 1.5.4 requires a Plan amendment to delay or eliminate a scheduled public facility needed to maintain an adopted LOS standard. More important, CIE Policy 1.5.4 conditions development permits issued in reliance upon scheduled public facilities so that the permit is suspended and further development stopped if the required public facility is delayed or eliminated without a Plan amendment. Although CIE Policy 1.5.4 is somewhat more restrictive than CIE Policy 1.5.3, the increased restrictiveness does not approach that resulting from the effect of CIE Policy 1.5.2, which prohibits the issuance of building permits in reliance upon scheduled public facilities after September 30, 1994. CIE Policy 1.5.5 states: On or before the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto, the County shall implement, through the adoption of an ordinance, a Concurrency Management System and a monitoring program. FLUE Objective 2 is: In order to ensure the coordination of land use with the availability of public facilities, the following standards for land development shall be required by the time mandated for the adoption of Land Development Regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto. No local Development Order shall be issued unless required public facilities meet the requirements of the Concurrency Management System contained in the Capital Improvement Element. A level of service ordinance will be prepared as part of the land development regulations that will provide guidelines to implement level of service standards. "Local Development Order" shall be defined as any approval by the County having the effect of permitting development. FLUE Policy 2.1 states: Level of Service Standard--Roads: Adequate capacity shall be available as defined by the standards in the Capital Improvement Element. As part of the development of a Level of Service ordinance and implementing program, a network of "envelopes" shall be developed around major road segments which represent geographic areas where development may impact that road. Any regulatory measures resulting from an insufficient Level of Service for a roadway shall be applied throughout an entire "envelope." The Level of Service standards are based on peak season hour volume. FLUE Objective 3 provides: In order to ensure protection of natural and historic resources, ensure the availability of suitable land for utility facilities, ensure consistency of development with level of service standards, promote compatible land uses within the airport noise zone and generally provide for management of growth in an efficient and effective manner, the following regulatory strategy shall be followed: --Land Development Regulations to implement this Growth Management Plan shall be adopted and codified and the development review process shall be evaluated and improved by the time mandated for the adoption of Land Development Regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto. These Regulations shall encourage creative solutions which address the unique situations of Collier County. FLUE Policy 3.1 states, in part: Adopt Land Development Regulations that contain provisions to implement this Growth Management Plan and which at a minimum: * * * G. Provide that no "Local Development Order" be issued unless required public facilities meet the requirements of the Concurrency Management System contained in the Capital Improvement Element. "Local Development Order" shall be defined as any approval by the County having the effect of permitting development to occur. The Land Development Regulation which implements the Concurrency Management System shall include provision for review of existing and committed land use at time of application for rezoning, definition of and prohibition of issuance of a "local development order" that would be inconsistent with the Concurrency Management System and establishment of a time limit on zoning approvals, requiring that if no development has occurred within a defined period of time after approval of a zoning, the zoning would revert to a lower classification. * * * L. In order to ensure that adequate public facilities are available concurrent with service demands generated by new growth and development in accordance with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Section 163.3161 et seq., Florida Statutes (1987), it shall be the policy of Collier County to achieve "concurrency" through a Concurrency Management System adopted as part of this Plan in the Capital Improvement Element. In addition, as the second element of the County's concurrency program, the County shall, as a part of the land development regulations to be prepared and adopted within one year of the submittal date of this Plan, implement a program to bring planned, permitted and zoned development capacity into alignment with the capacity of existing, programmed and planned capital improvements. The program of aligning development capacity with capital improvements capacity shall provide for the recognition and protection of vested property rights and shall provide individual property owners with a reasonable opportunity to take advantage of existing investment backed development expectations. The Land Development Regulations The APFO, which is Ordinance No. 90-24, is intended to establish a concurrency management system and implement the Plan. The ordinance states that the purpose of the APFO is to: establish. . . a management and monitoring system to evaluate and coordinate the timing and provision of the necessary Public Facilities to service development, and . . . establish . . . a regulatory program that ensures that each Public Facility is available to serve development concurrent with when the impacts of development occur on the Public Facilities. APFO 3.2. The APFO applies to all development in the total unincorporated area of Collier County, and to all public facilities owned by Collier County in the incorporated or unincorporated areas of Collier County, and to all privately-owned facilities where the level of service has been established by the County. APFO 2.3. "Development" is defined as "development" within the meaning of Section 380.04. APFO 4.13. The statutory definition includes: the carrying out of any building activity ..., the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels. The process by which development orders are issued is detailed. The APFO defines four types of development orders. To varying degrees, these defined terms are used in the APFO regulatory program, which is intended to ensure that no development orders are issued unless adequate Public Facilities are available to serve the proposed development, or that the development order is conditioned on the availability of Public Facilities to serve the development concurrent with when the impacts of development occur on the Public Facilities. APFO 8.1. A "development order" (DO), which is the broadest term, is defined to include any order, permit, determination, or action granting, denying, or granting with conditions an application for any final local development order, building permit, temporary use permit, . . . approved development of regional impact (DRI), zoning ordinance amendment, comprehensive plan amendment, ... coastal construction control line variance, . . . site development plan approval, subdivision approval (including plats, plans, variances, and amendments), rezoning, PUD amendment, certification, ... variance, or any other official action of Collier County having the effect of permitting development as defined in this Ordinance. APFO 4.14. A "final development order" comprises two types of development orders: a "final local development order" and a "final DRI development order." APFO 4.15. A "final local development order" (FLDO) "means any valid, unexpired building permit issued by the County." APFO 4.17. The APFO describes the process by which the County will correlate the availability of infrastructure to the impacts of nonexempt development. 9/ The determination that public facilities for which concurrency is required will be available concurrent with the impact of nonexempt development results in the issuance of a Certificate of Public Facility Adequacy (Certificate). The issuance of a Certificate is "proof of adequate Public Facilities to serve the development approved in the development order, subject to the conditions in the development order." APFO 8.3.2.5. APFO 8.3.5 adds: "Before issuance of a Certificate . . ., the application shall fulfill the standards for each Public Facility component (Potable Water, Sanitary Sewer, Solid Waste, Drainage, Parks and Roads)." These are the six public facilities for which concurrency is required (Public Facilities). APFO 8.3.1.1 provides that a Certificate shall be obtained at the filing for the earliest or next to occur of final subdivision plat, final site development plan or building permit; provided, however, any development orders except a final local development order may be approved or issued provided they are expressly conditioned on the issuance of a Certificate prior to building permit approval and provided the owner and applicant proceed at their own risk and expressly waive and release the County in writing from any and all future claims of vested rights and equitable estoppel resulting from such conditional approval or actions relying thereon. The APFO provides that a DO, but not an FLDO, may be conditional. A DO is defined to include an "order [or] permit . . . granting . . . an application for any [FLDO,] building permit, . . . or any other official action of Collier County having the effect of permitting development." An FLDO is "any valid, unexpired building permit." Some confusion arises because the APFO includes "building permit" in the definition of a DO and an FLDO. The definition of an FLDO is specifically limited to valid, unexpired building permits. Such a building permit is clearly an FLDO and, as an FLDO, may not be issued conditionally. The DO includes building permits that are not valid, or at least not yet valid due to their conditional nature. For instance, a building permit could be issued conditionally, so that no construction could commence until the condition, such as obtaining a Certificate, were satisfied. Obtaining a conditional building permit could possibly enable a landowner to demonstrate to the County or a prospective lender compliance with all other requirements, such as local building codes and setback requirements, and development could commence as soon as a Certificate were obtained. In general, then, a conditional building permit is a DO. But a final building permit that authorizes immediate development is an FLDO. The final building permit, or FLDO, is "valid" in the sense that, among other things, it is unconditional. As used through the remainder of this final order, FLDO shall mean the same thing as a final, or unconditional, building permit. As a whole, the APFO therefore properly predicates the issuing of an FLDO (i.e., final building permit) upon the obtaining of a Certificate. Without a Certificate, a landowner may not secure a building permit that authorizes immediate construction. APFO 8.3.2.2 provides in part: "A building permit, final subdivision plat or final site development plan shall receive final approval only to the extent to which the proposed development receives a Certificate " Although an FLDO cannot be issued without a Certificate, a Certificate may be issued, under the APFO, based on Public Facilities not available when the impact of the permitted development occurs. Non-road Public Facilities may be relied upon for the issuance of a Certificate if, when the building permit is issued, the Public Facilities are under construction, subject to a binding contract for their construction, included in the County's budget, or included in the County's five-year schedule of capital improvements. 10/ As noted in the APFO sections cited in the preceding footnote, the building permit is conditional if it is issued in reliance upon compliance with adopted LOS standards through the later construction of non-road Public Facilities included in the County's five-year schedule of capital improvements. The condition is that the conditional building permit, or DO, is suspended and all development is stopped if, without a Plan amendment, the required non-road Public Facility projects are not undertaken when scheduled. 11/ The circumstances under which a Certificate for the road component may be issued are somewhat more involved. Due to the interrelationship of the regulatory and monitoring programs, especially for roads, the operation of the road monitoring program is critical to the operation of the road regulatory program. In determining whether a road segment is deficient or potentially deficient, 12/ the APFO allows the County to rely upon road public facilities that, at the time of the preparation of the Annual Update and Inventory Report, 13/ are under construction, subject to a binding contract for their construction, included in the budget of the County or State, or included in the five-year schedule of capital improvements of the County or State. Unlike the situation with respect to development orders issued in reliance upon scheduled non-road public facilities, the development order is not conditional even though it is issued in reliance upon the inclusion of the required road public facility in the County or State five-year schedule. DCA argues that the APFO fails to provide for the suspension of the FLDO if, with respect to a required road public facility upon which the Certificate was issued, the project is delayed or eliminated without an accompanying plan amendment. Under the APFO, the FLDO is the last hurdle for the landowner to clear in the local development-approval process. The FLDO is unconditional, and subsequent events cannot divest the landowner of its rights under a FLDO. The duration of a Certificate 14/ is irrelevant to the duration of an FLDO, whose duration is not specified in the APFO 15/. Given the unconditional nature of the FLDO, it is necessary to identify the circumstances under which the County may issue a Certificate. In fact, a Certificate is available under a variety of circumstances in which the impact of development will precede the availability of required road public facilities. The entitlement to a Certificate requires a detailed understanding of the public facility monitoring program in the APFO, especially as it concerns roads. In general, the APFO monitoring program measures the remaining capacity of Public Facilities and the impact of proposed development on those Public Facilities. Information concerning remaining capacity and projected infrastructure demands associated with a proposed development allows the County to determine the availability of Public Facilities before and after the impact of a proposed development. A key component of the APFO monitoring program is the Annual Update and Inventory Report (AUIR). The AUIR is described as follows: By May 1 of each year, the Growth Management Director shall complete an [AUIR]. The AUIR shall determine the existing conditions of all Capital Potable Water, Capital Sanitary Sewer, Capital Solid Waste, Capital Drainage, Capital Park, and Capital Road Public Facilities, determine and summarize the available capacity of these Capital Improvements (Public Facilities) based on their LOS [Level of Service], and forecast the capacity of existing and planned Public Facilities identified in the Five (5) Year Capital Improvement Schedule for each of the five (5) succeeding years, and ten (10) succeeding years. The forecasts shall be based on the most recently updated schedule of Capital Improvements (Public Facilities) for each Public Facility. The AUIR shall be based on the most recent Bureau of Economic and Business Research (BEBR) population projections, updated Public Facility inventories, updated unit costs, and analysis of traffic count data. The findings of the AUIR shall form the basis for the Annual Update to the CIE, any proposed projects to be included in the County's Tentative Annual Budget, the determination of any Area of Significant Influence (ASI) and the review of and issuance of development orders during the next year. APFO 7.2. Based on the findings of the AUIR, the Growth Management Director is required, by May 1 each year, to report to the County Commissioners the existence of any deficiencies or potential deficiencies in public facilities for which concurrency is required. The Director must also recommend remedial actions, such as the establishment of Areas of Significant Influence, additions of Public Facilities to the CIE, and deferral of the issuance of development orders. These remedial actions would be effective until the County, by Plan amendment, lowered the LOS standard below which the facility was operating; included necessary public facility projects in the adopted annual budget and annual CIE update; or approved new or increased revenue sources for needed public facility projects. APFO 7.2.1. By July 15 each year, the Growth Management Director must propose to the County Commissioners the annual update to the CIE in conjunction with the tentative annual budget. The tentative annual budget, which is to be adopted by October 1 each year, "will include" the public facilities needed to maintain the adopted LOS standards. APFO 7.3. There is a special process for determining concurrency for roads. The Growth Management Director determines if there are "deficient or potentially deficient road segments." APFO 7.4.1. Pursuant to APFO 4.10.1, a "deficient road segment" is limited to certain County or State arterial or collector segments. A road segment is deficient if it is operating below its adopted LOS standard, except that an LOS D road segment operating at LOS E, but not worse, must have done so for at least two years before it is treated as deficient. Pursuant to APFO 4.10.2, prior to October 1, 1994, Collier County shall, in determining if a road segment is deficient, consider: any Capital Road Improvement under construction or that will be under construction during the review period; any Capital Road Improvement that is the subject of a binding executed contract which provides for the commencement of construction during the review period; any Capital Road Improvement that is included in the State or Collier County adopted budget; 16/ and the construction of the required Capital Road Improvement is included in the State's Five (5) Year Work Program or the County's current five (5) year Capital Improvement Schedule adopted as part of the Growth Management Plan prior to October 1, 1994. 17/ Pursuant to APFO 4.10.3, as of October 1, 1994, Collier County shall, in determining if a road segment is deficient, consider the factors set forth in the preceding paragraph. However, additional requirements are added to the fourth factor, which concerns projects relied upon in the five- year schedule of capital projects. Set forth in APFO 4.10.3.4, these additional requirements are: The Board of County Commissioners has made an express finding, after a public hearing, that the current five (5) year capital improvement schedule is based on a realistic, financially feasible program of funding from existing revenue sources; and The . . . LOS on all roads serving the development will not, at any time, operate below peak hour, peak season LOS "E"; and The . . . LOS on any road serving the development will not operate at peak hour, peak season in LOS "E" for a period of more than two (2) years except where LOS "E" is the LOS established in the Growth Management Plan for a particular year. Pursuant to APFO 4.32.1 and 4.32.2, a "potentially deficient road segment" is also limited to certain County or State collectors or arterials. If the adopted LOS standard of the segment is C, D, or E, it is potentially deficient if it is operating at its adopted LOS or, in the case of a segment whose adopted LOS standard is D, if it has been operating at LOS E for less than two years (so as not yet to be a "deficient" road segment). APFO 4.32.3 allows the County to consider, in determining whether a road segment is potentially deficient, the same four factors that apply to the consideration of a "deficient road segment." The same three requirements that are added, as of October 1, 1994, to the consideration of a "deficient road segment" also apply to the determination of a "potentially deficient road segment," as of October 1, 1994. Once having identified a deficient or potentially deficient road segment, the Growth Management Director must do two things. First, the Director must propose an Area of Significant Influence (ASI) around the deficient or potentially deficient road segment, unless the segment is "projected not to exceed its adopted LOS within the five (5) year Capital Improvement Schedule in the CIE." APFO 7.4.1. Second, the Director must identify any "Annual Residual Capacity Trips" to be allotted to applicants requesting Certificates for proposed developments within any proposed ASI covering deficient or potentially deficient road segments. APFO 7.4.1. APFO 7.4.2 sets the standards for establishing the boundaries of an ASI as follows: The boundaries for the ASI shall be based upon accepted transportation planning practices, and shall include those areas surrounding a deficient or potentially deficient road segment. The Growth Management Director shall complete a detailed conditions analysis of the deficient or potentially deficient road segment within each proposed ASI boundary prior to proposing the boundaries of the ASI. The analysis shall take into consideration characteristics of the road segment (such as traffic control, signal spacing, timing, and phasing) using procedures documented in the 1985 Highway Capacity Manual (or its current edition). The Annual Residual Capacity Trips for the proposed ASI covering the potentially deficient road segment shall be based upon up to hundred percent (100%) of the potentially deficient road segment's remaining capacity, measured in peak hour trips. Thirty percent (30%) of the potentially deficient road segment's remaining capacity shall be reserved for only those land uses which generate one (1) peak hour trip per day or less, based on the most recent ITE Trip Generation Manual. After receiving the proposed boundaries of the ASI and any proposed Annual Residual Capacity Trips allotments for the ASI from the Growth Management Director, the County Commissioners, by June 1 of each year, shall conduct a public hearing. The County Commissioners must approve the ASI boundaries and Annual Residual Capacity Trips allotments, with or without modifications, or: determine that competent substantial evidence has been placed on the record to show that the road segment is not potentially deficient and determine that the establishment of an ASI is not necessary to ensure that development orders are served by adequate road Public Facilities. APFO 7.4.3. The approved ASI boundaries and Annual Residual Capacity Trip allotments for each ASI become effective June 1 each year, "if additional road improvements are not added to the [CIE] at that time." APFO 7.4.3. The term of each ASI and Annual Residual Capacity Trip allotment is one year, under APFO 7.4.5 and 7.4.6. 18/ The ASI may be dissolved under the following circumstances: [i]f the additional needed road improvements identified in the AUIR are added to the CIE or funds are available for, and committed for construction of, the needed road improvements to eliminate the classification of a road as a deficient or potentially deficient road segment, then the ... ASI established for that deficient or potentially deficient road segment shall be dissolved in the same manner in which it was established. APFO 7.4.7. Returning to the APFO regulatory program, the road component of the Certificate may be issued only if the proposed development is outside an ASI or, if within an ASI covering a potentially deficient road segment, the proposed development will not cause a potentially deficient road segment to become a deficient road segment. 19/ As noted above, however, road Public Facilities included in the five-year schedule of capital improvements are treated as though they are already available when determining if road segments are deficient or potentially deficient. Despite authorizing concurrency determinations based upon capital road projects to be built perhaps years after the impact of development takes place, the APFO fails to require that the FLDO (i.e., final building permit) bear a condition when it is issued under these circumstances. If the post- development construction of road Public Facilities on which the FLDO relied when issued is later delayed or eliminated, nothing in the APFO provides for the suspension of further development under the FLDO. This omission is not seriously contested by the County, which argues instead that CIE Policy 1.5.3.E is self- implementing and its requirement of a condition providing for the possible suspension of the building permit needs no counterpart in the APFO. 20/ The fact is that the APFO authorizes the issuance of FLDO's (i.e., final building permits) based on Certificates that have been issued in reliance upon road Public Facilities whose availability will follow the impact of the proposed development by perhaps years. And the APFO fails to impose a condition upon such FLDO's that, in the absence of a Plan amendment, if the scheduled road Public Facilities are delayed or eliminated, then further development must cease. Ultimate Facts Citizens and Kessler: DOAH Case No. 90-8101GM APFO 7.2 Citizens and Kessler failed to prove to the exclusion of fair debate that APFO 7.2 is inconsistent with any of the following Plan provisions: CIE Goal 1, Objective 1.1, Policies 1.1.1 and 1.1.2; Objective 1.2, Policy 1.2.1; Objective 1.4, Policy 1.4.4; Objective 1.5 and Policy 1.5.5; FLUE Objective 2 and Policy 2.1; and Objective 3 and Policy 3.1.G and 3.1.L. APFO 7.2 establishes the AUIR as part of the monitoring program involving all Public Facilities. The inventory of Public Facilities summarizes their available capacity and forecasts their projected capacity based on scheduled capital improvements, population projections, updated construction costs, and updated traffic counts. APFO 7.2.1 directs the Growth Management Director to identify deficient or potentially deficient Public Facilities and recommend remedial actions such as the establishment of ASI's, addition of capital projects, and deferral of development orders in affected areas until the LOS standard is lowered, required public facilities are added, and/or new revenue sources are approved. The cited Plan provisions generally involve the identifying and supplying of adequate Public Facilities. CIE Goal 1 and Objective 1.5 refer generally to the availability of Public Facilities concurrent with the impact of development. The relevant FLUE provisions--namely, FLUE Objective 2 and Policies 3.1.G and 3.1.L--defer enforceable concurrency provisions to the concurrency management system contained in the CIE. However, the specific concurrency provisions of the CIE override the vaguer assurances of concurrency in CIE Goal 1 and Objective 1.5. The specific concurrency provisions are CIE Policies 1.5.1, 1.5.2, 1.5.3, and 1.5.4. These provisions do not strictly require concurrency because they allow the County to rely, in issuing development orders, on Public Facilities that simply are not actually available when the impacts of development are experienced. In their proposed final order, Citizens and Kessler focus on perceived deficiencies in the APFO's ability to calculate capacity and demand. As to capacity, they argue that the AUIR includes capacity-increasing projects scheduled in the County's five-year schedule of capital improvements, even if the funding is not included in the County's budget or the funding sources are unknown. As an example of the deficiency in measuring capacity, Citizens and Kessler note a shortfall in the AUIR for 1991 of about $60 million for road projects over the ensuing five years and observe that the County is, by its own description, "noncompliant" with about half of its capital projects for fiscal year ending 1990. Citizens and Kessler assert that the calculated facility capacity, on which building permits are based, is artificially large, and, if revenue shortfalls are experienced, the County has no means to suspend development orders already issued in reliance upon scheduled projects for which the money is unavailable. Of course, there is nothing objectionable in a process by which Public Facilities are inventoried periodically and the capacity of scheduled Public Facilities are calculated during the process of planning the location and service areas of additional infrastructure. The potential problem with APFO 7.2 is that it authorizes the inventorying of Public Facilities contained in the five-year schedule as part of a process under which these scheduled, but unavailable, Public Facilities are relied upon for the issuance of unconditional FLDO's. The unconditional aspect of the FLDO's has been found inconsistent with the CIE Policy 1.5.3.E given the availability of unconditional building permits based on Certificates for road components that rely on scheduled road Public Facilities. However, Citizens and Kessler fail to recognize, in their challenge of APFO 7.2, that the reliance upon scheduled public facilities in issuing FLDO's is a feature of specific concurrency provisions in the Plan. For reasons set forth in the Conclusions of Law, the issue is the consistency of APFO 7.2 with the operative provisions describing weaker concurrency, rather than vaguer provisions describing stricter concurrency. As to demand, Citizens and Kessler argue that the AUIR fails in two respects. First, they argue that the AUIR is based solely on County-wide population projections broken down into zonal data that ignore the locational impact of potential development arising from already-issued Certificates or exempt development. Second, Citizens and Kessler argue that the AUIR ignores the demand arising from Certificates already issued in the same review period for which a Certificate is sought. By way of illustration, Citizens and Kessler contend that the County could issue a Certificate for a development that would exhaust all remaining road capacity on a particular segment. Then, a few days later-- while still in the same annual review period--the County could issue additional Certificates for development impacting the same road segment. Again, any failure of the AUIR is, in these cases, limited exclusively to inconsistency with the Plan. The demand calculations are consistent with the cited provisions of the Plan. Nothing in the Plan requires the County to measure demand on a frequency greater than annually. Nothing in the Plan requires the County to locate the area of the demand in greater detail than is available through use of the population data broken down into zones. The County's demand calculations could gain greater precision if they were performed more frequently than annually or they were more focused as to the location of specific traffic impacts. However, the question is one of degree. An annual consideration of valid population projections that are then broken down into zones within the County suffices for consistency with the cited Plan provisions. 2. APFO 7.4 Citizens and Kessler have failed to prove to the exclusion of fair debate that APFO 7.4 is inconsistent with any of the following Plan provisions: CIE Goal 1; Objectives 1.4 and 1.5; and Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. These Plan provisions have been described in the preceding subsection discussing APFO 7.2. APFO 7.4 requires the Growth Management Director annually to establish ASI's for deficient or potentially deficient roads and allocate Annual Residual Capacity Trips to applicants for Certificates for development applications in ASI's involving potentially deficient roads. The ASI must include the area where development may be expected to place an "unreasonable number of new trips" on the deficient or potentially deficient road segment. The Annual Residual Capacity Trips allotment represents the difference between the present traffic count and "100% of the potentially deficient road segment" with "30% of the . . . remaining capacity . . . reserved for only those land uses which generate one (1) peak hour trip per day or less . . .." APFO 7.4 provides that the ASI designation remains in effect through the entire year unless the additional required road projects are earlier identified or funded. The only Plan provision possibly inconsistent with APFO 7.4 is FLUE Policy 3.1.G. FLUE Policy 3.1.G requires that the LDR's "shall include provision for review of existing and committed land use at time of application for rezoning [and] definition of and prohibition of issuance of a 'local development order' that would be inconsistent with the Concurrency Management System . . .." The first part of the quoted clause requires the County to collect and consider demand data current as of the time of the application. However, the application to which the language refers is not the application for a Certificate, but only an application for rezoning. The "rezoning" reference appears not to intend the issuance of a development order, which is explicitly addressed in the second part of the quoted clause. As noted above, the other concurrency provisions of the Plan do not impose upon the County the specific requirement that it survey demand more frequently than annually or more accurately than the zonal analysis of population projections allows. 3. APFO 8.3.5.6 Citizens and Kessler failed to prove to the exclusion of fair debate that APFO 8.3.5.6 is inconsistent with any of the following provisions: CIE Goal 1; Objectives 1.4 and 1.5; and Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. These Plan provisions have been described in the subsection above discussing APFO 7.2. APFO 8.3.5.6 provides that the road component of the Certificate shall be granted if the development is not within an ASI or, if within an ASI covering a potentially deficient road segment, the proposed development would not make the potentially deficient road segment a deficient road segment. Citizens and Kessler first challenge the provision allowing Certificates for road components to be granted as long as the development is not within an ASI. Citizens and Kessler argue that this provisions precludes an assessment of existing and projected demand when the permit is issued. However, there is no inconsistency between this aspect of APFO 8.3.5.6 and the cited Plan provisions. Citizens and Kessler are really challenging the frequency of the infrastructure inventory and reliance upon a zonal breakdown of population projections rather than analysis of impact based on previously issued Certificates and vested development. As discussed in the preceding subsections, there are no inconsistencies between these provisions of the APFO and the cited Plan provisions. Citizens and Kessler also challenge APFO 8.3.5.6 with respect to the standards set for roads within an ASI. Again, the challenge to this aspect of APFO 8.3.5.6 is based on the County's reliance upon scheduled capital projects in issuing development orders. As discussed in the preceding subsections, there are no inconsistencies between these provisions of the APFO and the cited Plan provisions. 4. APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5 Citizens and Kessler failed to prove to the exclusion of fair debate that APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5 are inconsistent with any of the following Plan provisions: CIE Goal 1; Objectives 1.4 and 1.5; and Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. These Plan provisions have been described in the subsection above discussing APFO 7.2. 112. APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5, which Citizens and Kessler do not address in their proposed final order, allow concurrency determinations for non- road components of the Certificate if the required Public Facility is contained in the County's five-year schedule of capital improvements. The sections require that the schedule be based on a realistic, financially feasible funding program from existing revenue sources. The sections require that a Plan amendment is required to delay or eliminate any scheduled Public Facility on which the County has relied in issuing a development order. Lastly, the sections require that such a development order be expressly conditional, so that the development order is suspended and further development stopped if, without a Plan amendment, the required Public Facility is delayed or eliminated. There are no inconsistencies between the cited Plan provisions and APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5. Corkran, DCA, Citizens, and Kessler: DOAH Case No. 91-0858GM Corkran, DCA, Citizens, and Kessler proved to the exclusion of fair debate that the APFO is inconsistent with and fails to implement CIE Policy 1.5.3.E. Dealing exclusively with roads, CIE Policy 1.5.3.E requires that, if a "development order" is issued in reliance upon a scheduled capital improvement, then the development order must be conditional. The condition is that the development order shall be "suspended and no further development shall be carried out" if, absent a Plan amendment, the required Public Facility is delayed or eliminated from the State or County five-year schedule, annual funding is insufficient to maintain the County five-year schedule of capital improvements, or construction of the required Public Facility is not undertaken in accordance with the State or County five-year schedule of capital improvements. Under the APFO, the road component of the Certificate is issued unless the development is in an ASI. In determining whether and where it must locate road ASI's, the County may treat as available any road project scheduled in the State five-year work program or County five-year schedule of capital improvements. An obvious problem arises if the relied-upon road project is delayed or eliminated from either five-year schedule without a Plan amendment. Numerous FLDO's may have been issued in reliance upon the road project prior to its deletion from either five-year schedule. Because these FLDO's are unconditional, the County would be unable, under the APFO, to satisfy the requirements of CIE Policy 1.5.3.E and suspend further development once the road project were delayed or eliminated from the State or County five-year schedule. The failure of the APFO to provide for conditional development orders as to roads is clearly inconsistent with and fails to implement CIE Policy 1.5.3.E. Corkran, Citizens, and Kessler: DOAH Case No. 91-0994GM Corkran, Citizens, and Kessler failed to prove to the exclusion of fair debate that APFO 4.10.2.4 is inconsistent with or fails to implement CIE Policy 1.5.3.E. APFO 4.10.2.4 allows the County's determination of deficient roads to be based on the capacity from road projects in the State or County five-year schedule. This is consistent with CIE Policy 1.5.3.E, which expressly allows the concurrency determination to be based on road projects in the State or County five-year schedule. As noted above, CIE Policy 1.5.3.E requires the suspension of conditional development orders if relied-upon road projects are not built when scheduled absent a Plan amendment. CIE Policy 1.5.3.E also requires the County to adopt a plan amendment to delay or eliminate any road project contained in the County's five-year schedule of capital improvements if the road project has been relied upon in issuing a development order. However, nothing in APFO is itself in conflict with these Plan provisions. In no way is the entire APFO inconsistent with CIE Policy 1.5.3.E by omitting mention of the Plan requirement of an amendment whenever relied-upon road projects are delayed or eliminated. To the contrary, if a local government desires to identify a triggering event for a plan amendment, the appropriate location to identify the event is the plan itself, not the LDR's.
The Issue The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2016.
Findings Of Fact Broward County requests that three segments of A1A be designated urban principal arterial roads: A1A from Miramar Parkway (or Hallandale Beach Boulevard) north to Sheridan Street, A1A from Seventeenth Street Causeway north to Oakland Park Boulevard, and A1A from Commercial Boulevard to Atlantic Boulevard. Petitioner also requests that the following streets connecting A1A to US 1 be designated urban principal arterial roads: Hallandale Boulevard, Pembroke Rode, Sheridan Street, Seventeenth Street, Sunrise Boulevard, Oakland Park Boulevard, Commercial Boulevard, and Atlantic Boulevard. The roads listed above serve major centers of activity in an urban area and have high traffic volumes. The major centers of activity are such that they attract long-distance travelers. The three portions of A1A and their connecting links would be integrated with the urban principal arterial road network within Broward County. Although the main portions of A1A and its connecting links are heavily traveled, the geographic location of A1A indicates that it is an alternative route of travel north and south. In Broward County, A1A is interrupted approximately one-third of the way through the County by Port Everglades, the eastern terminus of State Road 84. This interruption in the road's continuity, together with the type of activity located along the route, mitigate against its use as a major north/south route for persons desiring to go long distances, and it does not serve the longest trip purpose. The segments of A1A and its connecting links named in the petition are already designated urban minor arterial roads. Atlantic Boulevard from State Road 7 to University Drive and Broward Boulevard from University Drive to State Road 84 are not constructed. These two roads referenced in the petition are proposed links planned to be constructed in the future. The nature of the traffic on these proposed links is at this time conjectural. The remaining roads presented in the petition are east/west roads located south of State Road 84 in Broward County. This portion of the County contains approximately 40 percent of the County's population and is rapidly growing. The contiguous cities of Miramar, Hollywood, Pembroke Park, Pembroke Pines, and Hallandale constitute the major population area in South Broward County. The following figures show the population broken down by major population centers in South Broward County: CITY POPULATION Hollywood 122,750 Hallandale 36,400 Miramar 30,400 Pembroke Park 5,100 Pembroke Pines 29,800 TOTAL 224,450 Hollywood Boulevard is the only east/west road currently designated as an urban principal arterial road in South Broward County. The traffic corridor between Hollywood Boulevard and State Road 84, the next urban principal arterial road to the north, is approximately five miles wide and has an east/west traffic count of 93,200 cars per day. The traffic corridor between Hollywood Boulevard and the southern boundary of the County is approximately three miles wide and has an east/west traffic count of 65,300 cars per day. These two corridors in South Broward County are considered by the Department of Transportation's expert to be in the gray area between minor arterial and principal arterial roads (See Transcript, Page 543). There are major centers of activity located in South Broward County on the eastern edge of the County which attract vehicular traffic from inside and outside Broward County. Considerable traffic is generated between residential communities in the western portion of the County and the business district located in the southwestern portion of the County. Reference to Exhibit R-11, a map of the existing urban principal arterial road network, shows a disparity between east/west urban principal arterial roads north of State Road 84 and south of State Road 84. With 60 percent of the County's population, the northern portion of the County has eight east/west urban principal arterial roads, while the southern portion of the County which has 40 percent of the County's population has only one east/west urban principal arterial road. No clear differences exist between the types of activities located in the southern portion of Broward County and those located in the northern portion of the County. While Fort Lauderdale is the major business district in the County, the County's International Airport and Gulfstream Race Track are located in South Broward County. In addition, there are the normal business, commercial and industrial developments one would expect in a community of more than 200,000 people. Further, South Broward County has become a residential community for persons working in Dade County. The existence of such residential communities in southern Broward County generates long-distance trips north and south. The high traffic counts in the most southerly traffic corridor in Broward County indicate substantial traffic flow east and west to access the north/south urban principal arterial road. In heavily built-up metropolitan areas, urban principal arterial roads should be located from five to one miles apart. The denser the population, the closer together the arterial roads should be. Currently, there are no urban principal arterial roads located between State Road 84 and Hollywood Boulevard, a distance of approximately five miles, and no urban principal arterial roads located between Hollywood Boulevard and the southern boundary of the County, a distance of approximately three miles. The traffic data in South Broward County meets the superlative levels necessary to designate a road an urban principal arterial road. The most northerly proposed east/west route in southern Broward County is Griffin Road. Its proximity to the International Airport and its extension westward to State Road 25 (US 27) are positive factors in its consideration as an urban principal arterial route. Griffin Road is located at the very north of the traffic corridor which it would serve, almost four miles from Hollywood Boulevard and one mile south of State Road 84. Traffic in the vicinity of the International Airport will be changed by the modifications in the airport and the extension of State Road 84. Sterling Road is the next most northerly proposed route in southern Broward County. Sterling Road is located almost exactly midway between State Road 84 and Hollywood Boulevard, the middle of the traffic corridor which it would serve. Sterling Road is not an improved facility from US 1 west to the Florida Turnpike, the portion passing through the area of highest population density and carrying the heaviest traffic load. Sheridan Street is the next proposed route north of Hollywood Boulevard. It is located one and a quarter miles north of Hollywood Boulevard and is multi-laned from A1A to west of the Florida Turnpike; however, it does not connect with University Boulevard, although plans exist for its extension one mile to University Boulevard. There is substantial commercial build-up along Sheridan Street; however, means exist for limiting the effect of this type of build-up on traffic flow. Commercial build-up along an urban arterial road is a major problem which can only be resolved through close coordination by zoning and traffic planning authorities. If Sheridan Street were extended west to State Road 25, it would run between the communities of Pembroke Pines and Cooper City and not penetrate any communities. Pembroke Road runs east/west from US 1 to University Boulevard. It is approximately midway between Hollywood Boulevard and the southern boundary of Broward County. This road runs on the northern borders of Hallandale and Miramar. Hallandale Boulevard (or Miramar Parkway) runs east/west from US 1 to University Boulevard. Miramar Parkway carries slightly heavier traffic flow than Pembroke Road; however, it is the main business route through Pembroke Park and Hallandale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer makes the following recommendations: Atlantic Boulevard from State Road 7 to University Drive and Broward Boulevard from University Drive to State Road 84 not be designated as urban principal arterial roads. The proposed portions of A1A and its connecting links not be approved as urban principal arterial roads. Designation of one urban principal arterial road in the traffic corridor between State Road 84 and Hollywood Boulevard, and designation of Sheridan Street as that urban principal arterial road. Designation of one urban principal arterial road in the traffic corridor between Hollywood Boulevard and the southern boundary of Broward County, and designation of Pembroke Road as that urban principal arterial road. As agreed to by the parties, these recommendations form a partial Recommended Order on the petition filed by Broward County. By further agreement of the parties this Recommended Order is not submitted for entry of a final order until presentation of the evidence concerning urban minor arterial roads which should be added to the State Highway System. DONE and ORDERED this 22nd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John Franklin Wade, Esquire Broward County Courthouse 210 South East Sixth Street Fort Lauderdale, Florida 33301
The Issue The issues here concern the transfer of a portion of State Road 211 in Duval County, Florida, referred to as Grand Avenue. This transfer would be made upon Respondent's contention that the road is functionally classified as a collector and properly the subject for maintenance and control by Petitioner. The City of Jacksonville has opposed this transfer based upon its belief that Respondent's classification of the road as a collector was inappropriate and that the aspect of the road, constituted of the Ortega River Bridge, is in a substandard physical condition when contrasted with contemporary roads of like age and existing functional classification within Duval County and Jacksonville, Florida. See Subsection 335.04(1), Florida Statutes. WITNESSES AND EXHIBITS Petitioner presented the witnesses Stanley K. Nodland, City Engineer, Jacksonville, Florida; Charles E. Ison, Sr., Junior Engineer, Bridge Inspections Section, City of Jacksonville; Morris M. Napier, Associate Engineer, Bridge Inspections Section, City of Jacksonville, and Robert Lee Hill, Jr., City Highway Engineer, City of Jacksonville. Petitioner offered five (5) exhibits which were received. Respondent called as its witnesses James H. Pittman, District Planning Engineer, Department of Transportation; James A. Moss, District Maintenance Engineer, Department of Transportation, and Stephan Fregger, Chief of Bureau of Transportation Systems Statistics, Department of Transportation. Respondent offered Exhibits 1, 1A and 2-12, which were admitted.
Findings Of Fact Following a series of workshops and meetings between the parties in this cause, allowing public comment in these sessions, Respondent determined to transfer approximately 3.1 miles of road to Petitioner for maintenance purposes. In formulating this policy decision, Respondent functionally classified the road as a collector. The road is referred to as Grand Avenue and includes the Ortega River Bridge. It is located in the City of Jacksonville, Duval County, Florida. The purpose of functional classification of the roadway in question was part of the classification exercise mandated by Subsection 335.0A(1), Florida Statute which began in late 1977 or early 1978. The overall classification requirement related to the entire state of Florida and it was to be concluded effective July 1, 1982. In addition to the sessions held between the parties and the general public, related to the road classification in question, other sessions were held in-house between the central office, Department of Transportation and its District Offices, to include District II. District II is the locale in which Duval County is found. This consultation by staff was designed to insure uniformity in the endeavor. To conclude the process of the state-wide classification, Respondent acted in accordance with Chapter 14-12, Florida Administrative Code, and relied on those definitional statements set forth in Subsection 334.03(14), (15), (16) and (17), Florida Statutes 1/, in establishing qualitative criteria for the statewide functional classification activity. In effect, definitions in the provisions form the basis of the criteria. In the case of the subject road, particular emphasis was placed upon traffic volume, trip length, speed and access or mobility. Following the qualitative or subjective examination, Respondent decided that the Grand Avenue section should be classified as a collector road, as opposed to an arterial road or local road. Petitioner does not agree that the read should be classified as a collector, based upon the belief that the Department has failed to promulgate and apply necessary criteria to functionally classify the road in question. Moreover, Petitioner is concerned that the bridge feature of the road is substandard. Therefore, on June 2A, 1982, steps were taken leading to the present Subsection 120.57(1), Florida Statutes, hearing. See Petitioner's Exhibit No. 4, admitted into evidence. Respondent's Exhibit No. 1-A, admitted into evidence, is a traffic count map showing a substantial number of roads in Jacksonville. It depicts the average of four (4) traffic counts taken in 1977, at northwestern and southern ends of the road sought for transfer. At the southern end, 3,415 trips a day were averaged and in the northwestern area, 5,135 trips per day were averaged. This is a close approximation of the traffic circumstance on the road at the time of hearing. The map also features traffic counts for other collector roads in Duval County. Those counts are roughly comparable to the counts on the road in question. Speed limit on Grand Avenue in the subject area varies from 25 miles per hour on the lower end of the street, to 15 miles per hour on some of the curves and in the northern area of the road, the speed limit is 35 miles per hour. The road has two (2) traffic lanes and the Ortega bridge is a two-lane bridge. The road is primarily designed to give access to surrounding property as opposed to granting mobility for through-traffic. There is a high number of local streets adjacent to the road and a number of driveways giving access to the road. The road is located in a predominantly residential area, constituted primarily of single family dwellings, with some apartments in the area of the bridge and small commercial complexes, referred to as neighborhood family stores. Respondent's Exhibit No. 2, admitted into evidence, is a map depicting the proposed system under functional classification. It shows state highways, county roads, collectors, minor arterials, city streets, and the urban boundaries of the area where the Grand Avenue section is found. With the exception of the state highway system tape, all other roads would be part of the city system for maintenance purposes. At the northwest corner of the road in question, at the junction with Herschel Street and San Juan Avenue, the traffic count changes as you proceed north on Herschel Street. It increases to approximately 9,200 trips per day. Proceeding west on San Juan Avenue from the junction at Herschel, Grand and San Juan, the traffic counts increase to some 16,000 as measured in 1977. See Respondent's Exhibit No. 1A. For this reason and based upon other classification criteria, those sections of San Juan and Herschel are arterials and part of the state system. As an example of other criteria differences, San Juan Avenue is basically a commercial area with longer trip lengths than in the case in the area of the subject road. Respondent's Exhibit No. 3, admitted into evidence, is a map depicting the roads by functional classification in the greater part of Duval County, Florida, with a second sheet which more particularly indicates functional classification in the area where the transfer would be made. Respondent's Exhibit No. 4, admitted into evidence, contains a map depicting select collectors and arterial roads in Duval County. This map, in conjunction with other maps, demonstrates the similarity between the subject road and other collectors in Duval County in terms of traffic count, length of roadway and access or mobility. This map also identifies state, national and interstate roads. Respondent's Exhibit No. 4 also has an element constituted of two (2) paces of charts comparing select collectors as to length, average daily trips, number of lanes, nested speed and land use. These charts establish the overall similarity between the collectors and the overall similarity between the arterials. These two (2) groups, i.e. the Duval collectors and arterials, bear strong resemblance respectively to the definitions set forth in Subsections 334.03(15) and (16), Florida Statutes, supra. With the exception of the bridge surface, the roadway in question was resurfaced in April, 1982. In comparison with roadways of other collectors in Duval County, with the exception of the bridge, the condition of the road surface in the subject area is good. The bridge surface is fair. In summary, the facts as reported herein evidence the propriety of functionally classifying the 3.1 miles of State Road 211, known as Grand Avenue, to include the Ortega River Bridge, as a collector. One of the major sections of the road to be conveyed is constituted of the Ortega Bridge. The bridge was built in 1926 and opened to traffic in 1927. It has a bascule span referred to as a walking or rolling bascule. This is the span that moves to allow boat traffic under the bridge. The draw span is operated by two (2) electric motors, activated by a bridge tender. The fixed portion of the structure is an arched type beam construction. The construction composition is made of concrete with reinforcing material. The bridge allows a load rating of H-20. The bridge is depicted in Petitioner's Composite Exhibit No. 2, a series of photographs, admitted into evidence. While forty (40) years is the average life of a bridge, this bridge has lasted fifty-seven (57) years. The present condition of the bridge is spoken to through a series of inspection reports and ratings given the structure. Respondent, through its bridge inspection section examined the fixed spans of the bridge on August 10, 1981. A copy of the report that ensued may be found as Respondent's Exhibit No. 10, admitted into evidence. In speaking to the major elements of the fixed spans, the report has a numerical rating of the various elements. The ratings range from adequate in describing the fender system in the canal to excellent when describing the drainage system. On August 19, 1981, Respondent also made an inspection of the movable spans. Respondent's Exhibit No. 10, supra. These numerical ratings range from fair, in describing such things as rack gears, curve tracks and flat tracks of the bascule span machinery, to excellent in describing the gear assemblies in the movable span elements. The gears had been subject to major overhaul in the years 1978 and 1979. Notwithstanding the basically sound condition of the bridge as borne out by the 1901 inspection, a number of deficiencies were noted related to cracks in bridge columns, caps, webb walls and abutments/indents. Cavities were found in the rip-rap bags at abuttment 1. Cracks were noted in the beams and diaphragms. The asphalt surface of the deck was cracked and spalled and had bulges at certain areas of the joints throughout the structure, related to faulty expansion. (The approach slabs were improved with the resurfacing in April, 1982.) Spalled areas were found in the deck underside. The fender system had deteriorated substantially due to marine borers. The top track and walking pinion gear on the north side of the east leaf was found to not mesh properly when the bridge is being opened and closed. There was some deterioration found in beams/stringers/girders related to the movable span. All these matters and other deficiencies are more particularly described in Respondent's Exhibit No. 10, to include photographs. The report is found to be an accurate depiction of the bridge condition. Respondent conducted a further inspection of the movable span in August, 1982, above water and underwater. A copy of the inspection report may be found as Respondent's Exhibit No. 9, admitted into evidence. These observations are substantially the same as was the case in the 1981 inspection of the movable spans. The observations in this report and the photographs with the report are found to be accurate. A sufficiency rating through structure and inventory appraisal is reflected in a computer printout prepared on December 6, 1982. The rating is 71.5. It relates to all the major elements of the bridge. This information is basically comparable to the inspection reports alluded to before and is accepted as being substantially accurate. See Respondent's Exhibit No. 8, admitted into evidence. The ratings setting forth the principle elements of the bridge are taken from the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges, a copy of which is Respondent's Exhibit No. 12, admitted into evidence. This is a publication of U.S. Department of Transportation/Federal Highway Administration. By utilization of the code system set forth in Respondent's Exhibit No. 12, the rating which is established through the structure inventory and appraisal printout ranges from marginal condition in appraising the deck geometry, to fair condition in describing the substructure, to generally good condition in describing the deck surface, as examples. An estimate of the cost of improvements, as set forth in the Exhibit No. 12, would be $80,000. The $80,000 improvements cost relates to the suggested improvements set forth on page 29 of the Respondent's Exhibit No. 10 and would cover such matters as sealing cracks, repair to rip-rap, etc. Some of those improvements are constituted of periodic maintenance, a prioritized item by the Department of Transportation. The state had not reached the place of making the periodic maintenance improvements to the bridge at the time of the final hearing in this cause. For planning purposes, the Department of Transportation feels that the bridge would last at least five (5) years, from the date of the preparation of the structure inventory and appraisal information set forth in Respondent's Exhibit No. 12. In October, 1982, Petitioner, through its bridge inspection section, examined the Ortega River Bridge. This inspection did not entail examination below the waterline. The results of the inspection are set forth in the Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, which has been described, are photographs taken during the course of the inspection. Some of the highlights of this report indicate substantial deterioration at the ends of the bascule span, exposing the wire mesh used to bond the asphalt surfaces which are adjacent to the bascule span. It depicts the difference in elevation between the bascule span and the adjacent asphalt spans. Nonetheless, automobiles are able to safely utilize that portion of the bridge where the asphalt span and bascule span are joined. It points out the deterioration of the tender system which is made of timber and has been decimated by marine borer infestation. It specifically points out the disarray of electrical wiring in the area where the electrical motors are found, which constitutes a safety hazard. Per the report, the deflection of the ends of bascule leaves, when in operation, is causing impact loading and vibration in the movable sections, especially when used by heavier vehicles. Essentially, the Petitioner' a inspection is commensurate with the observations of the Respondent in its inspection reports, Respondent's Exhibits 9 and 10. The City's reported observations on the bridge condition are accurate. One of the support pillars for the bridge structure has rotated. The significance of this rotation was not established at the hearing; however, the rotation could reach a point where the pillar was no longer capable of bearing the load. Likewise, the significance of the numerous cracks in the bridge members was not clearly established, other than the common agreement by both parties that those items need attention. Neither the Respondent nor petitioner has done extensive testing such as core sampling of the concrete material, sonigrams or x-rays to determine the relative strength and condition of the bridge structural members. After considering the presentation of both parties on the subject of the bridge, and remainder of the road being transferred, as compared to other roads which are functionally classified in Duval County as collectors, the subject road is found to be physically comparable in its condition and appropriate for transfer. This determination relies on the fact that the road is being transferred as a unit. The bridge is not regarded as an item which warrants its own comparison to other bridges, when considering the transfer of the Grand Avenue section of State Road 211. Therefore, no factual discussion is made of a comparison of the Ortega River Bridge to other bridges in Duval County or out of the county.
