The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
The Issue The issues in this case are: Whether a Residential Office (RO) designation for the thirty acre parcel at the southeast corner of McMullen-Booth and Curlew Roads, which is owned by Gas Kwik (Petitioner), is consistent with the Countywide Comprehensive Plan for Pinellas County (Countywide Plan); or Whether a split designation of RO for the northern nine acres with Low Density Residential (LDR) for the southern twenty-one acres of the subject parcel, as recommended by the Pinellas Planning Council (PPC), is consistent with the Countywide Plan and supported by competent substantial evidence, and Whether the PPC is authorized to initiate this split designation amendment rather than limiting its review and recommendation to the RO designation which was approved by the City of Safety Harbor (City), and forwarded to the PPC by the City as a proposed amendment to the Countywide Plan.
Findings Of Fact The Petitioner owns a thirty acre parcel of property located in the City of Safety Harbor, Pinellas County, Florida, which is the subject of the proposed land use change at issue in this case. The PPC is the countywide land planning agency charged with development and implementation of the Countywide Plan. As it relates to this case, it is responsible for review of the proposed amendment to the Countywide Plan concerning Petitioner's parcel, and for recommending action on that amendment to the Board of County Commissioners. The City of Safety Harbor (City) received the Petitioner's application for a redesignation of the subject property from Suburban Low Density Residential (SLDR) to Residential/Office/Retail (ROR), and after review it approved an amendment to the City's land use plan map on March 6, 1989, which redesignated Petitioner's property to Residential/Office (RO). Thereafter, the City requested an amendment to the Countywide Plan to change the designation of the subject property to RO. After review, the PPC recommended denial of the City's request, and further, recommended an alternative split designation of Residential/Office - Low Density Residential (RO/LDR). Neither the City nor the Petitioner have agreed to the PPC's compromise alternative. The Petitioner timely filed its request for a hearing on the PPC's denial of the City's request, and its recommendation of the split alternative. The City did not seek to become a party to this action, but as the owner of the property in question, the Petitioner is substantially affected by the PPC's action, and its right to maintain this action without the participation of the City is not at issue. Location and Characteristics of the Property The subject property is located at the northwestern boundary of the City, bordered on the north by unincorporated Pinellas County, on the west by the City of Clearwater, and on the east, across the Lake Tarpon Outfall Canal, by the City of Oldsmar. The property lies at the intersection of McMullen- Booth and Curlew Roads, both of which are designated scenic, non- commercial corridors, although where it abuts the subject property Curlew Road is not so designated. The City does not recognize this portion of McMullen-Booth Road within its jurisdiction as a scenic, non-commercial corridor. Across Curlew Road to the north of the Petitioner's parcel is a vacant tract of about 7.5 acres in unincorporated Pinellas County that is currently designated SLDR, which allows 2.5 units per acre. The adjoining property to the south is also a vacant parcel in unincorporated Pinellas County, with a designation of SLDR, and is approximately 30 acres in size. Further to the south, is Mease Countryside Hospital and related office and health care facilities. Across the Lake Tarpon Outfall Canal to the east is a low density residential mobile home park in the City of Oldsmar with a land use designation that allows 7.5 units per acre. A residential subdivision in which one lot abuts the subject property is located to the southeast. Across McMullen-Booth Road to the west in the City of Clearwater are a single family residential area and nursing home, with land use designations which allow from 1 to 5 units per acre. Mease Countryside Hospital, and associated offices, are appropriately located along McMullen-Booth Road to the south of the subject property since this location is consistent with the relevant portion of the Countywide Plan that states, "Hospitals should continue to be built adjacent to freely moving traffic corridors so that they are conveniently accessible to emergency and private vehicular traffic." The siting of the nursing home to the west of the Petitioner's parcel, across McMullen-Booth Road, is consistent with those portions of the Countywide Plan which provide, "Nursing homes should be built near community hospitals whenever possible in order to encourage inter-institutional activities", and which encourage prospective builders of nursing homes to locate such facilities in residential settings. There is a clear potential for a substantial impact on surrounding jurisdictions from the development of the subject property. Approval of the proposed RO designation, with its allowable density of 15 units per acre, can reasonably be expected to result in pressure to redesignate the vacant parcel located to the immediate south of the subject property from its current SLDR designation, allowing 2.5 units per acre, to the higher density allowable under RO, which is, in fact, the highest density allowed in the unincorporated county. Concerns of other jurisdictions must be considered under the Countywide Plan, which sets forth the following guidelines for intergovernmental coordination: Evaluate the potential impacts proposed programs and activities may have on adjacent government entities before actively pursuing implementation. Consider the programs and activities of surrounding jurisdictions before making decisions which may have multi-jurisdictional affects. The subject property is vacant and consists of approximately thirty acres. Its current designation is SLDR, which allows up to 2.5 units per acre. This current designation is consistent with surrounding residential uses. The Possum Branch Creek drainageway traverses the property in an approximately east to west direction, with approximately nine acres lying to the north and twenty-one acres to the south. The original channel was meandering, but currently it is a straight line with a spoil bank on the north side. This is a channelized, natural drainageway which is classified as a major drainageway under the Drainage Element of the Countywide Plan, which includes the policy of restoring drainageways to their natural course whenever possible. Significant portions of the southern twenty-one acres of this parcel lie within the 100 year flood plain. Residential land use designations in the Countywide Plan provide that densities of greater than five units per acre are inappropriate for areas with significant environmental constraints, such as areas within the 100 year flood plain. While development in a flood plain is not prohibited, relevant portions of the Plan specifically list both SLDR and LDR, which allow densities of from 2.5 to 5 units per acre, as appropriate for flood zone restricted property. The southern portion of the property includes a portion of a five acre eagle protection area which extends to the south and southeast beyond the Petitioner's property, and which separates this property from the existing residential subdivision to the southeast and vacant property to the immediate south. It extends into the vacant parcel to the south The Eagle's continued use of this area is uncertain. Because the Countywide Plan allows for the transfer of development density out of this eagle protection area, the existence and location of this area does not favor any particular pattern of development on the subject property. The predominate vegetation on the parcel consists of oak trees located in the right-of-way of McMullen- Booth Road in the southwest corner of the site. Scenic Non-Commercial Corridor The purpose and intent of the scenic, non- commercial corridor policy in the Countywide Pan is to protect the corridor's traffic carrying capacity, to limit adjacent non- residential uses, and to encourage the scenic and natural qualities along the corridors. It is a policy of long-standing application, originally adopted in 1977, and covers six such corridors, including McMullen-Booth Road. Stability and control of land uses along such corridor is a significant component of transportation planning for the corridor. Commercial uses allowed under the RO land use designation are not permitted within 500 feet of the right-of-way of a designated scenic, non-commercial corridor, unless approved by plan amendment or recognized on the Future Land Use Plan. No dwelling units may be located within 350 feet of the scenic, non- commercial corridor right-of-way. Two parcels with an RO designation exist south of the Mease Hospital, but each of these were authorized while the PPC lacked authority to apply the scenic, non-commercial corridor policy and before the effective date of the Countywide Plan. Under the Countywide Plan, there have been no deviations from the protection of the scenic, non-commercial corridor policy along McMullen-Booth Road, and in several specific instances the PPC has, without exception, refused to recommend approval of amendments which would have been inconsistent with that policy. While there are instances of multi-family, office and commercial development along McMullen-Booth Road, the land use designations along this scenic, non-commercial corridor are predominantly residential intermixed with vacant parcels, particularly north from the intersection of State Road 580 with McMullen-Booth to Curlew Road where there is a total of only 12 to 15 acres of office uses and these offices are associated with Mease Hospital. Petitioner's proposed RO amendment would more than double the number of acres on this portion of the corridor presently designated for office use. The predominant land use along McMullen-Booth north of Curlew Road to State Road 584 is also residential intermixed with vacant parcels. The non-residential intensity level established as appropriate for preserving the traffic carrying capacity along the scenic, non-commercial corridor is similar to the LDR density of 5 units per acre. However, the RO designation sought by the Petitioner allows densities of 15 units per acre, and therefore, this scale of potential non-residential use would be inconsistent with the pattern of development along this portion of the McMullen-Booth corridor from State Roads 580 to 584, and with the Countywide Plan which states, "Land planning should weigh heavily the established character predominately developed in areas where changes of use or intensity of development is contemplated. It is the position of the Petitioner that the subject property falls within a commercial node, or commercial intersection, which should be excepted from the scenic, non- commercial corridor policy. However, that policy does not specifically include an exception for "commercial nodes", and in fact such commercial nodes were not shown to exist between State Roads 580 and 584 on McMullen-Booth. There is a nodal exception policy in the housing element of the Countywide Plan which provides that higher density residential areas should be located in proximity with commercial nodes, and in areas immediately served by arterial streets and mass transit. The scenic, non-commercial policy, in contrast, encourages low density residential development and discourages mass transit. In fact, the area surrounding the subject property is not planned to receive mass transit service. The intersection of Curlew and McMullen-Booth Roads is significantly different from commercial nodes recognized in the MPO long range plan where large areas of high density residential development are concentrated, such as at the intersection of State Roads 584 and 580, and at the intersection of State Roads 586 and 584. Unlike other nodes, the subject property has only one limited access point onto McMullen-Booth, and no access onto Curlew. It is also the position of Petitioner that there would be minimum impacts resulting from an RO designation on the year 2010 Plan levels of service along this corridor. However, this is based upon the unrealistic assumption that such designation of this parcel would not result in a proliferation of similar higher density redesignations for the vacant thirty acre parcel to the south, as well as for other vacant parcels along the corridor. Such a proliferation would result in the elimination of any visual relief and any scenic transition along McMullen-Booth Road. Traffic Considerations Curlew Road (State Road 586) is presently a two- lane road in the vicinity of the subject property, while McMullen-Booth is a four-lane divided road adjacent to the property. In the MPO Year 2010 Plan, Curlew Road is designated as a six-lane divided roadway, and McMullen-Booth is designated as a four-lane divided facility. Portions of McMullen-Booth south of State Road 580 are designated for six-laning. The right-of-way design for the intersection of McMullen-Booth and Curlew Roads abutting the subject property has been designed to accommodate an elevated six-lane urban interchange, and pavement width of McMullen-Booth at this intersection is sufficient to allow it to be striped as a six-lane divided roadway at some, undetermined time in the future. While these roadway improvements have been budgeted for construction through 1992-93, no assurance of funding was shown, and therefore, these improvements are considered to be planned, but not committed. According to David Healey, who was accepted as an expert in land use and municipal planning, approval of the RO designation sought by the Petitioner will result in a 750% increase in projected vehicle trips per day over what would result from the present designation of this property as SLDR upon which these roadway improvements were planned. According to Hubert Pascoe, who was called by the PPC arid was accepted as an expert in MPO planning, Petitioner's request would generate approximately 250% more vehicle trips per day than the alternative split designation recommended by the PPC. Nevertheless, under either proposal the levels of service for these adjacent roadways would remain acceptable under the MPO Year 2010 Plan, and while an RO designation would intensify use and lower service levels somewhat, it would not create an unacceptable level of service. However, the impact of an RO designation on existing traffic and upon these adjacent roadways as they presently exist would be substantial, and is reasonably estimated to result in as much as a 30% increase in existing traffic. The Countywide Plan specifies that the "scale of (any) proposed land use development should be compatible with the capacity of existing supporting facilities, such as roads and facilities." While roadway improvements are planned, as found above, the substantial impact on existing facilities of this RO designation, without those improvements in place, would threaten continued acceptable service levels for these unimproved, existing facilities, and would perpetuate a pattern of development preceding essential facility improvements which results in unacceptable levels of service for existing facilities until planned improvements can catch up with such growth. The designation of McMullen-Booth as a scenic, non-commercial corridor, with resulting limitations on commercial and high density development, has significantly influenced the transportation planning that has taken place with regard to this corridor, and the identification of appropriate roadway improvements, specified above. The present SLDR designation of this parcel is consistent with the low intensity transportation planning assumptions considered under the Countywide Plan. Significant changes in adjoining land uses, such as redesignating vacant parcels from SLDR to RO, would result in significant changes in projected impacts and render such planning less meaningful and relevant. The RO designation sought by the Petitioner is inconsistent with basic assumptions used in the identification of projected traffic impacts that lead to the development of proposed roadway improvements which both parties acknowledge and contend will be sufficient to handle expected traffic volumes. It is unrealistic since it ignores the basic fact that these anticipated improvements are premised upon the continued viability of this scenic, non-commercial corridor which excludes high density, commercial development. The Countywide Plan states that, "The transportation system should not dictate the form and future development pattern but should be a supporting service system for the area's development plan." The transportation system can only function as a "supporting service system" when the area's development plan remains consistent, and when long standing policies, such as a scenic, non-commercial corridor, are not abandoned on a piecemeal basis. The fact that Mease Hospital is appropriately located along the McMullen-Booth corridor, south of the subject property, is not a basis on which this RO designation should be approved. Such a designation would contribute to an increase in the traffic burden on the McMullen-Booth corridor, especially when the potential for additional RO amendments based upon this redesignation is considered, and this could reasonably be expected to result in the elimination of this as a "freely moving traffic corridor" upon which the hospital siting was based. There is limited accessibility to the subject property with only northbound traffic on McMullen-Booth Road having direct access to the site. All other traffic is required to go through the McMullen-Booth and Curlew Road intersection and make a left hand turn from McMullen-Booth southbound across northbound traffic onto the site. Given this very limited access, an RO designation, with its densities up to a maximum of 15 units per acre, is inappropriate. The fact that this parcel has limited accessibility was a significant factor in the transportation planning process. The Petitioner's analysis is based upon the unrealistic assumption that other land use changes would not occur on these adjacent roadways between the present and the year 2010, even if an RO designation is approved for this parcel. The reasonable likelihood that the owners of similar parcels along McMullen-Booth Road will seek higher densities for their properties, if this RO designation is approved, must be considered in any meaningful analysis. Development Potential Petitioner does not allege that the current SLDR designation of the subject property is confiscatory. Evidence offered by Petitioner that it has been unable to market this property for low density residential development was neither competent nor substantial. Additionally, the extent and diligence of these marketing efforts is suspect since Petitioner purchased this property for the purpose of high density, commercial and office development, despite its low density residential designation, as well as that of parcels to the south and east, and also since Petitioner remains primarily interested in office and high density development. According to the Petitioner, an RO designation would serve as an appropriate buffer, or step-down, between the existing low density mobile home park, residential area, and vacant SLDR parcel to the east, southeast and south, respectively, and the high intensity activity intersection of McMullen-Booth and Curlew Roads to the north. However, the pertinent provision in the Countywide Plan provides that "development patterns should recognize and support coherent neighborhoods. Neighborhoods should be insulated wherever possible from disruptive land uses and nuisances." Placing an RO designation on the subject property lying to the north and west of residential parcels would not serve as a buffer for those residential parcels designated SLDR, nor would it insulate them from potential commercial and office development which would then be authorized for the subject property. While RO is recognized in the Countywide Plan as an appropriate buffer between major traffic corridors and LDR (5 units per acre), it is not recognized to be an appropriate buffer between such high intensity activity areas and SLDR (2.5 units per acre). The fact that there is a fully developed and apparently successful, low density, residential subdivision to the west of the southern portion of the Petitioner's parcel, across McMullen-Booth Road, conclusively establishes that this area is appropriate for residential development. Additionally, to the west of the northern portion of the subject property, across McMullen-Booth, is a nursing home. While there was evidence that residents in the subdivision have blocked some access roads into their subdivision to limit traffic on residential streets entering the subdivision from McMullen-Booth, there was no competent substantial evidence to establish that residents have been selling their homes at below market value in order to leave the subdivision, whether the rate of home sales has been increasing, or that noise levels resulting from traffic along McMullen-Booth for residents of the subdivision or the nursing home are unacceptably high. The Countywide Plan requires site planning regulations which protect residential development from such noise concerns by providing buffers along arterial roadways, including berms, walls, or woody vegetation. The open space set-back requirement of the scenic, non-commercial corridor policy is well suited for use as a buffer. Most Appropriate Designation: RO vs. RO/LDR The Petitioner seeks approval from the Board of County Commissioners of the City's action redesignating the subject 30 acre parcel from SLDR (2.5 units per acre) to RO (15 units per acre). The PPC has recommended a split designation of RO on the northern 9 acres and LDR (5 units per acre) on the southern 21 acres of Petitioner's property. The split designation provides an appropriate buffer between low density residential development and vacant parcels to the east and south, as well as projected high volume traffic at the intersection of Curlew and McMullen-Booth Roads. The southern 21 acres of the property would provide an appropriate transition density of 5 units per acre from the 2.5 units per acre to the south, and the 15 units per acre which would be allowed in the northern RO portion of the subject property adjacent to the roadway interchange. Traffic volumes at the interchange do not justify redesignating the entire parcel RO, since this would ignore, and be inconsistent with, the Countywide Plan policy of buffering low density residential areas designated SLDR. The use of Possum Creek Branch drainageway to separate the RO and LDR designations on the subject property, as recommended by the PPC, is logical and consistent with the depth of other non-residential designations along Curlew Road, as well as with prior actions by the PPC in recognition of an interchange influence area. The RO designation sought by Petitioner is inconsistent with the fact that the southern 21 acres of this parcel lie within the 100 year flood plain where low density development under SLDR or LDR is allowed, as recommended under the PPC's split designation. The scale of allowable development under an RO designation of up to 15 units per acre is not consistent with the pattern of development along the McMullen-Booth scenic, non- commercial corridor, north of State Road 580 through the Curlew Road intersection to State Road 584, or with Countywide Plan policies which seek to protect existing development patterns. The split designation recommended by the PPC does provide for consistency with existing patterns of development along adjacent portions of McMullen-Booth. The LDR designation on the southern 21 acres of the subject property aligns with the residential subdivision to the west, across McMullen-Booth Road, and is consistent with residential densities in that subdivision, as well as densities to the east and southeast. The subject property's existing SLDR designation is consistent with surrounding residential uses, with concerns for intergovernmental coordination expressed in the Countywide Plan, and with the low intensity assumptions used for transportation planning. The PPC's split designation balances these concerns for intergovernmental impacts with the Petitioner's stated desire for high density development. An LDR designation for the southern 21 acres of this parcel will provide for a viable opportunity for development, consistent with other residential developments to the west, southeast and east, and with sound planning principles. The RO designation sought by Petitioner would result in unplanned, contiguous uses along McMullen-Booth and Curlew Roads which would be inconsistent with basic assumptions that have gone into planned improvements to these roadways. Stability and control of land uses along the adjoining scenic, non-commercial corridor is a significant aspect of transportation planning for the McMullen-Booth Road corridor, which is premised upon low density residential development. Petitioner's traffic projections, concluding that land use changes associated with an RO designation would have no significant impact on the functional capacity of these adjacent roadways and planned interchange improvements, were not based upon competent substantial evidence, and were conclusively rebutted by evidence of adverse, cumulative, unplanned impacts presented by the PPC. Due to this parcel's limited accessibility, an RO designation for the entire site is inappropriate because it will result in significant adverse impacts on the traffic carrying capacity of the adjacent scenic, non-commercial corridor. The PPC's split designation retains significant low density residential acreage, which is consistent with limited access points and protection of the corridor's traffic carrying capacity. The split designation recommended by the PPC is consistent with the scenic, non-commercial corridor policies of the Countywide Plan since it will prevent the proliferation of high density development, maintain visual relief and scenic transition along McMullen-Booth Road north from Mease Hospital, and limit non-residential development along the corridor. The development of 30 acres under an RO designation at this intersection would represent an isolated nodal increase in intensity which would be inconsistent with development along this portion of the McMullen-Booth corridor, and would occur without any plans to provide mass transit services to this area. Thus, this would be inconsistent with the nodal exception policy adopted by the PPC which identifies community nodes as areas immediately served by arterial streets and mass transit. The PPC split designation does allow limited intensification of development on the northern 9 acres of the subject property immediately adjacent to the McMullen-Booth and Curlew Road intersection, thereby recognizing a reasonable extent of impact from intersection traffic and improvements. This is a reasonable approach, consistent with the Countywide Plan. Approval of the Petitioner's request for RO designation of this entire 30 acre parcel would be inconsistent with prior decisions of the PPC under the scenic, non-commercial corridor policy. The split RO/LDR designation is a reasonable compromise of competing interests and policies, and is consistent with pertinent portions of the Countywide Plan.
Recommendation Based upon the foregoing, it is recommended that the Pinellas County Board of County Commissioners enter a Final Order disapproving an RO designation for Petitioner's subject property, and approving, as a compromise, the PPC's split designation of RO/LDR, subject to the Petitioner and the City of Safety Harbor affirmatively joining in said compromise. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1990. APPENDIX (DOAH CASE NO. 89-3438) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-4. Adopted in Finding 3. 5. Adopted in Finding 2. 6-7. Adopted in Finding 3. 8-9. Adopted in Findings 6 and 7. 10-11. Adopted in Finding 12. 12-13. Adopted in Finding 6. Adopted in Findings 5, 7, 10, 12. Rejected in Findings 8, 27, 35. Adopted in Findings 6, 21. Rejected in Findings 6, 30, and otherwise not based on competent substantial evidence. Rejected in Finding 12. Rejected in Findings 32-40, and otherwise as speculative. 20-23. Rejected as immaterial and unnecessary. 24-25. Adopted in Finding 21. 26. Rejected as immaterial and unnecessary. 27-29. Adopted in Finding 21. 30-31. Rejected as unnecessary. 32. Adopted in Finding 22. 33-37. Rejected as unnecessary. Adopted in Finding 22. Rejected in Findings 24, 26, and otherwise not based on competent substantial evidence. Rejected as irrelevant and as simply a summation of testimony rather than a proposed finding of fact. Rejected in Findings 24 and 26. 42--43. Rejected as irrelevant and immaterial. 44-45. Rejected in Finding 10. 46-47. Rejected as irrelevant and immaterial. 48. Adopted in Finding 11. 49-50. Rejected as speculative and not based on competent substantial evidence. 51-53. Rejected as irrelevant and immaterial. Rejected in Finding 19. Rejected in Findings 13-20, and 40. Rejected in Finding 16, and otherwise as irrelevant. Adopted in Finding 8. Rejected in Finding 16, and otherwise as irrelevant. Rejected in Findings 18, 19, 39. Adopted in Finding 14. Rejected as irrelevant and not based on competent substantial evidence. Rejected in Findings 16, 18, 19, 39. Adopted in Findings 33 and 39. 64-67. Rejected in Findings 13, 16, 18, 19, 34, 37-40. Adopted and Rejected in part in Findings 3, 33, 38-40. Rejected in Findings 18, 19 and 39. Adopted in Finding 13. Rejected as irrelevant and immaterial Rejected in Findings 18, 19 and 39. Adopted in Finding 14, but otherwise Rejected as speculative and immaterial. Adopted in Findings 17 and 24. 75-78. Rejected as immaterial. Rejected as irrelevant and immaterial. Rejected in Findings 18 and 19. Rejected in Finding 8, and otherwise as irrelevant and immaterial. Adopted in Finding 14. Rejected as irrelevant and immaterial. Adopted in Finding 5. Rejected as irrelevant and immaterial, and as not based on competent substantial evidence. Adopted in Finding 28. 87-88. Rejected in Findings 28 and 30. 89-90. Rejected as irrelevant and immaterial. Rejected as not based on competent substantial evidence. Rejected in Findings 28 and 30. Adopted in Finding 30. Rejected as not based on competent substantial evidence. Rejected in Findings 18, 19 and 39. Rejected in Finding 16 and otherwise as irrelevant and immaterial. Rejected as not based on competent substantial evidence. 98-99. Rejected as speculative and immaterial. Rejected in Finding 8. Adopted in Finding 5, but Rejected in Finding 16. Rejected in Finding 29. Rejected as immaterial, irrelevant and contrary to competent substantial evidence. Rejected in Findings 34-40 and otherwise as contrary to competent substantial evidence. 105-106. Rejected as unnecessary. Rejected in Findings 32-40. Rejected in Finding 29. Rejected in Findings 32-40, and otherwise as unnecessary and immaterial. Rejected in Finding 25, and as not based on competent substantial evidence. 111-112. Rejected in Findings 32-40. 113-165. Rejected in Findings 8, 9, 11, 12, 16-20, 22, 24-27, 29, 30 and 32-40, and otherwise as unnecessary, irrelevant, and needlessly cumulative and duplicative of previous proposed findings of fact. Rulings on the PPC's Proposed Findings of Fact: Adopted in Finding 2. Adopted in Finding 1. Adopted in Finding 4. 4-5. Adopted in Finding 8. 6. Adopted in Finding 5. 7-8. Adopted in Findings 11 and 33. 9-10. Adopted in Finding 10. 11. Adopted in Finding 33. 12. Adopted in Findings 9 and 10. 13. Adopted in Finding 33. 14. Adopted in Finding 12. 15. Adopted in Findings 6 and 12. 16-17. Adopted in Finding 6. 18. Adopted in Finding 16. 19. Adopted in Finding 30. 20-21. Adopted in Finding 7. 22-23. Adopted in Finding 16. 24. Adopted in Finding 15. 25-26. Adopted in Finding 16. 27. Adopted in Finding 17. 28. Adopted in Finding 9. 29. Adopted in Findings 17 and 34. 30-31. Adopted in Findings 29, 32 and 39. 32. Adopted in Findings 16 and 17. 33. Adopted in Finding 9. 34. Adopted in Finding 40. 35-40. Adopted in Findings 8, 20, 24, 27 and 35. 41-42. Adopted in Finding 28. 43-46. Adopted in Finding 30. Rejected as unnecessary and immaterial. Adopted in Finding 30. 49-50. Rejected as unnecessary and immaterial. Adopted in Finding 22. Adopted in Finding 23. 53-59. Adopted in Findings.24 and 36, but otherwise Rejected as cumulative and unnecessary. Adopted in Finding 26. Adopted in Finding 23. Adopted in Finding 27. Adopted in Finding 36. Rejected as unclear in the use of the term "particular amendment". Rejected as cumulative and unnecessary. Adopted in Finding 35. Adopted in Finding 39. 68-70. Adopted in Findings 13 and 16. Adopted in Finding 17. Adopted in Finding 20. 73-74. Adopted in Findings 21 and 23, but otherwise Rejected as cumulative and unnecessary. 75-76. Rejected as cumulative and unnecessary. 77-78. Adopted in Findings 37 and 40. 79-83. Rejected as cumulative and unnecessary. 84-85. Adopted in Finding 38. 86-87. Rejected as cumulative and unnecessary. 88-98. Adopted in Findings 18, 19 and 39, but otherwise Rejected as cumulative and unnecessary, 99-100. Adopted in Finding 40. 101-107. Rejected as cumulative and unnecessary. COPIES FURNISHED: James L. Bennett, Esquire Assistant County Attorney 315 Court Street Clearwater, FL 34616 Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350 Tampa, FL 33602 David P. Healey Executive Director Pinellas Planning Council 440 Court Street Clearwater, FL 34616
The Issue The issue in this case is whether Ft. Myers' comprehensive plan, as amended, is not in compliance for the reasons set forth in the prehearing stipulation, as amended during the final hearing.
Findings Of Fact Background The City of Ft. Myers, (Ft. Myers) adopted its comprehensive plan on February 13, 1989. The Department of Community Affairs (DCA) issued a Notice of Intent to find the plan not in compliance. Among other things, DCA alleged that the plan improperly omitted the Mid-Point Bridge and was inadequate in terms of intergovernmental coordination, at least with regard to the bridge. The City of Cape Coral (Cape Coral) and Lee County filed petitions to intervene. The petitions challenged the Ft. Myers plan based on its omission of the Mid-Point Bridge. DCA and Ft. Myers subsequently reached a settlement. On August 20, 1990, Ft. Myers adopted plan amendments pursuant to the settlement agreement. The plan, as amended, will be referred to as the Plan. DCA issued a Notice of Intent to find the plan amendments in compliance, but Lee County and Cape Coral, finding the plan amendments unsatisfactory, continued to prosecute their challenge to the Plan. Ft. Myers and Cape Coral are two of the three municipalities located in Lee County. /2 The two cities are divided by the Caloosahatchee River, which forms the western end of the Okeechobee Waterway. This waterway links the Gulf of Mexico to Lake Okeechobee, via the Caloosahatchee River, and Lake Okeechobee to the Atlantic Ocean. In the eastern part of Lee County, the Caloosahatchee River runs from east to west. In this area, the river is spanned by the State Road 31 Bridge and, further downstream, the Interstate 75 bridge. In the vicinity of Interstate 75, about two miles northeast of the city limits of Ft. Myers, the river widens, makes a slow turn, and takes a northeast-to-southwest course. Except for a railroad bridge about one mile downstream from the Interstate 75 bridge, the next bridge is the Edison Bridge, which is about 5 1/2 miles downstream from the Interstate 75 bridge. The Edison Bridge serves old U.S. 41. The southern landfall of this bridge runs into the northern end of the central business district of Ft. Myers. The Edison Bridge, which is presently two lanes, is planned to be widened to six lanes in the near future. About 1/2 mile downstream of the Edison Bridge is the Caloosahatchee Bridge, which serves new U.S. 41. The southern landfall of the Caloosahatchee Bridge, which is sometimes called the 41 Bridge, also runs into the central business district of Ft. Myers. The Caloosahatchee Bridge is four lanes. About seven miles downstream from the Caloosahatchee Bridge is the Cape Coral Bridge, which is the last bridge before the mouth of the river. The Cape Coral Bridge was recently expanded to four lanes. The proposed Mid-Point Bridge would be located 3.4 miles upstream from the Cape Coral Bridge and 3.8 miles downstream from the Caloosahatchee Bridge. At this point, the river runs more in a north-to-south direction. The bridge would connect central Cape Coral with south Ft. Myers. The Mid-Point Bridge project would include an east-west road corridor on both sides of the river. The corridor would connect Everest Parkway on the Cape Coral or west side of the river with Colonial Boulevard on the Ft. Myers or east side of the river. Everest Parkway is presently only about 12,000 feet long. The corridor would connect Everest Parkway with Miracle Parkway to the west, turn north at Malatcha Pass (the western boundary of Cape Coral), and extend to New Burnt Store Road. Everest Parkway and most of Miracle Parkway are four-lane divided collectors for which Cape Coral has jurisdiction. Colonial Boulevard is an arterial consisting of six lanes from McGregor Boulevard east to U.S. 41 and four lanes from U.S. 41 east to Interstate 75. The State had jurisdiction over all of Colonial Boulevard, but the County now has jurisdiction over the segment between McGregor Boulevard and U.S. 41. The west terminus of Colonial at McGregor Boulevard is about one- quarter mile east of the river. About 2000 feet east of McGregor is Summerlin Road. The next major intersection is U.S. 41, which is about 4000 feet east of Summerlin and less than 1.2 miles east of McGregor Boulevard. The Edison Mall, which is a major regional shopping mall, is less than one-half mile north of this intersection on the east side of U.S. 41. The next major intersection on Colonial is Metro Parkway, which is 1.3 miles east of U.S. 41. A little over 3.1 miles east of Metro Parkway is Interstate 75 where an interchange exists. From west to east, the major north-south roads are McGregor Boulevard, for which capacity improvements are constrained by historic and scenic factors; U.S. 41, which crosses the Caloosahatchee Bridge; Fowler Street and Evans Avenue, which are a one-way pair between the Edison Bridge and Colonial; Metro Parkway, which is proposed to be extended north to cross the proposed Metro Bridge; and Interstate 75, which is considerably east of the downtown area. Cape Coral is a relatively new community whose predominant land uses are residential. The relevant road network in Cape Coral consists of two major east-west roads: Pine Island Road, which is about four miles north of Everest, and Cape Coral Parkway, which is about three miles south of Everest. The major north-south roads are, from east to west, Del Prado Boulevard (at which point Everest presently ends), Country Club Boulevard, and Santa Barbara Boulevard. In contrast to Cape Coral, Ft. Myers has been more or less continuously occupied since the construction of a fort by the same name in 1850 between the Second and Third Seminole Wars. In 1887, Thomas A. Edison built his home alongside the Caloosahatchee River between the central business district and what is now Colonial Boulevard. Edison's home is located on McGregor Boulevard, which is attractively lined by Royal Palm trees. Aided by the arrival of Henry Plant's Coast Railroad in 1904 (and presumably a bridge to go with it), Ft. Myers began to grow rapidly in the early 1900's. The Colonial Boulevard area was not developed until the Florida land boom in the 1920's. Although the structures of historical interest are north of Colonial Boulevard, seven sextant structures on Rio Vista Way were constructed during the 1920's and 1930's and exemplify the prevailing Mediterranean revival architectural style. Running toward the river, Rio Vista Way intersects McGregor Boulevard about 250-500 feet of north of the western end of Colonial Boulevard. Data and Analysis February, 1989, Data and Analysis At the time of the adoption of the plan, Ft. Myers prepared a 45-page volume entitled "Traffic Circulation Data and Analysis." The document was dated August, 1988, and revised February, 1989. This document will be referred to as the 1989 Data and Analysis. The 1989 Data and Analysis reviews the city's current situation with respect to transportation facilities, especially roads. Table 1 of the document is a chart of daily traffic volumes based on Florida Department of Transportation traffic estimates issued April 10, 1987 Table 1 projects the peak hour level of services for various road segments for 2010. According to Table 1, by 2010, all of U.S. 41 is projected to be at level of service F, except for a segment south of downtown that is projected to deteriorate only to level of service D. All of Colonial Boulevard is projected to be at level of service F, except for the short segment between McGregor Boulevard and Summerlin Road, which is projected to deteriorate only to level of service C. McGregor Boulevard and Fowler Street are projected to be level of service F, except for the segment of Fowler Street beginning at the river, which is projected to be level of service E. Among the road segments already exceeding level of service standards are Colonial Boulevard west of U.S. 41 (level of service E) and McGregor Boulevard (level of service F). The 1989 Data and Analysis notes that the "intensified urbanization of Fort Myers will continue, and congestion problems will worsen." 1989 Data and Analysis, page 7. The 1989 Data and Analysis summarizes the "three major areas of major capacity deficiencies" as follows: Firstly, Fort Myers' downtown is the economic hub of Lee County and development attracts approximately 38,800 daily trip ends. [Fort Myers Downtown Plan, July 1986.] Second, the Edison Mall area which due to the major regional shopping mall is a main attractor of traffic congestions. Finally, McGregor Boulevard, the renowned historic and scenic highway, has capacity constraints. Id. at page 9. Map B in the 1989 Data and Analysis depicts future roadways and classifications. In addition to the existing Interstate 75, railroad, Edison, and Caloosahatchee bridges, the map shows the Metro Bridge. This bridge, which will be located just over one mile upstream from the Edison Bridge, will allow Metro Parkway to cross the river and intersect with Interstate 75 in north Lee County. According to the Future Land Use Map (FLUM), Metro Parkway presently extends from south of Colonial Boulevard to about two miles north of Colonial. Map B depicts Metro Parkway as continuing north until it meets the proposed landfall of the southern end of the proposed Metro Bridge. The proposed alignment of Metro Parkway between its present northern terminus and the proposed bridge takes it through economically distressed areas east of the railroad tracks and central, downtown area. Map F in the 1989 Data and Analysis depicts graphically travel desires lines for 1980 and 2010. The travel desires map shows the general direction and approximate volume of trips between 13 centroids for 1980 and 2010. The centroids aggregate up to 396 travel analysis zones. The 1989 Data and Analysis explains that the travel desires map "was produced as part of the MPO 2010 Needs plan update . . .." 1989 Data and Analysis, page 19. The 1980 travel desires line signifying the greatest number of trips runs in at northeast-southwest direction between south Ft. Myers near the river to north Ft. Myers a couple of miles inland. Other major 1980 travel desire lines cross the river in the vicinity of the Caloosahatchee, Edison, and proposed Metro Bridges cross the river between the center of Cape Coral and north Ft. Myers and connect north Ft. Myers to a point well east of Interstate 75 in the area of Lehigh Acres. The projected travel desires lines signifying the most travel in 2010 are the above-described line between south and north Ft. Myers and a line between south Ft. Myers and a point about six miles due south. The latter travel line depicts considerably less traffic in 1980. Compared to the two most significant 2010 travel lines, the travel lines crossing the river are projected to increase at a lesser rate. Table 3 in the 1989 Data and Analysis contains 1987 Traffic Counts. The table, which is derived from Lee County data, projects when various road segments will deteriorate to seasonal level of service E. Table 3 projects that Colonial Boulevard between Summerlin Road and U.S. 41 and Colonial east of Metro Parkway will deteriorate to peak season level of service E by 1988 and 1992, respectively. McGregor was already at an average level of service of E by 1987. Segments of Metro Parkway south and north of Colonial are projected to reach level of service E by 1991 and 1989, respectively. Also, U.S. 41 at the river is projected to deteriorate to level of service E by 1992. Other relevant segments are projected to be at seasonal level of service D or better. Map G in the 1989 Data and Analysis graphically depicts 1980 and 2010 levels of population and employment by area. In general, Map G shows that, in 1980 and 2010, Cape Coral experienced and is projected to continue to experience considerably greater population than employment opportunities. North and south Ft. Myers' figures show a much better balance between population and jobs. Addressing Map B in, the 1989 data and Analysis, which depicts future roadways, the 1989 Data and Analysis states: The City's Major Thoroughfare Plan (Map H[)] /4 has been developed to coordinate with the Metropolitan Planning Organization, State and County plans to the greatest extent possible. The most significant deviations from these plans are the terminus of the Evans/Fowler one-way pair and the exclusion of a "mid- point bridge." The proposal by other agency plans of a "mid-point bridge," at its current proposed location, conflicts overwhelmingly with other goals, objectives, and policies of the Comprehensive Plan. Conflicts with Land Use, Historic, and Community Appearance elements and internal conflicts with the Traffic Circulation element precludes the City from supporting the proposed bridge alignment. The present and future land use pat1terns have been coordinated to the greatest extent feasible with the Major Thoroughfare Plan. 1989 Data and Analysis, page 36. The 1989 Data and Analysis does not explain how the Major Thoroughfare Plan ``coordinates'' with the plans of the Metropolitan Planning Organizations' State, and County plans. Maps A and B of the 1989 Data and Analysis depict, respectively, present and future roads. Tables in the 1989 Data and Analysis following the Major Thoroughfare Plan--2010 list transportation projects included in the list of one organization or entity but excluded from that of another. Mentioning the Mid-Point Bridge and approaches, Table 12 states "The City of Fort Myers is adamantly opposed to this project on the basis of it being inconsistent with the City's Comprehensive Plan." The 1989 Data and Analysis concludes with a discussion of "issues and opportunities." This discussion mentions the maintenance or provision of "adequate road capacity for future traffic needs" and the preservation and protection of the "quality of residential areas, major activity centers, and recreation and environmental resources." Nothing in the 1989 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. Setember, 1990, Data and Analysis An updated version of the 1989 Data and Analysis was issued. The new version bears the date, "August 1988," but also states that it was "updated September 1990." This document will be referred to as the 1990 Data and Analysis. Table I in the 1990 Data and Analysis is based on the same Florida Department of Transportation estimates issued April 10, 1987, on which Table 1 in the 1989 data and Analysis was based. The above-noted segments are all projected to reach the same level of service, except that all segments of U.S. 41 are projected to reach level of service F by 2010. Other differences between the 1989 Data and Analysis and 1990 Data and Analysis appear fairly minor. /6 Table IV updates the 1987 Traffic Counts in the 1989 Data and Analysis with 1988 Traffic Counts, which are, also from Lee County. The differences as to when relevant road segments are projected to deteriorate to peak season level oil service E are as follows: Colonial Boulevard east of Metro Parkway, which is now projected to reach level of service E in 1993 instead of 1992; Metro Parkway north and south of Colonial, which are no longer "projected" to deteriorate to level of service E in 1988; and Colonial Boulevard just west of U.S. 41, which is now projected not to reach level of service E within the applicable timeframe instead of reaching it in 1988. There is no difference in the discussions in the 1989 Data and Analysis and 1990 Data and Analysis concerning the differences between the road network portrayed by the Major Thoroughfare Plan--2010 and the road networks portrayed by the plans of the Metropolitan Planning Organization, State, /7 and County. The conflict concerning the Mid-Point Bridge and corridor remains unresolved. Nothing in the 1990 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. The MPO Plans and Environmental Fact Statement Other sources of data and analysis existing in February, 1989, pertain to the Mid-Point Bridge and transportation planning issues. Much of these data nd analysis are associated with the work of the Lee County Metropolitan Planning Organization (MPO) and of Lee County and its consultants in the preparation of an environmental impact statement for the Mid-Point Bridge and corridor. When adopting the Plan, Ft. Myers representatives were aware of the data and analysis used or prepared by the MPO and the data and analysis used to prepared by Lee County and its consultants in connection with the environmental impact statement. Required by federal law, a metropolitan planning organization coordinates transportation planning in areas governed by more than one local jurisdiction to ensure that federal and state transportation funds are spent effectively. The MPO consists of 12 voting members: five Lee County Commissioners, the Mayor and two City Council members of Ft. Myers, the Mayor and two City Council members of Cape Coral, and the Mayor or a City Council member of Sanibel. The MPO is also served by a Technical Advisory Committee (TAC), which consists largely of planning and engineering employees of each of the member jurisdictions. The TAC analyzes data and presents to the MPO for consideration. The MPO prepared its initial transportation plan in 1974. The MPO first included the Mid-Point Bridge in its 1978 transportation plan. The MPO later dropped the Mid-Point Bridge project, but reinstated it in 1983. The Mid-Point Bridge remained in the MPO's transportation plans until March, 1991. At an early stage, Lee County was opposed to the bridge, but later reversed its position. The positions of Cape Coral and Ft. Myers appear to have remained constant. In 1987, the MPO began to run computer simulations of various transportation improvements. These modeling runs, or assignments, were integral to the preparation of the MPO 2010 Needs Plan (Needs Plan) and MPO 2010 Financially Feasible Plan (Financially Feasible Plan). Although some text is associated with these plans, they generally consist of two maps of road networks with indications as to the number of lanes and type of facility (e.g., freeway or collector). The Needs Plan depicts the system needed "to accommodate projected travel demand efficiently and conveniently at acceptable levels of service, but unconstrained by cost considerations." Financially Feasible Plan. Based upon cost-benefit analyses, the Financially Feasible Plan prioritizes the facilities shown in the Needs Plan. It is arguable whether the Financially Feasible Plan depicts road improvements that are, in fact, financially feasible. The plan concedes that the MPO has proposed improvements whose cost nearly doubles projected available revenues: The estimated $993 million cost of the Financially Feasible Plan, while $442 million less than that of the 2010 Needs Plan, still exceeds projected financial resources from traditional or existing Sources by -some $313 million. In order to pay for the implementation of the Financially Feasible Plan, a number of options for raising additional revenue available under current Florida law have been identified. Financially Feasible Plan. Although a number of the revenue options involve Ft. Myers, such as through the use of impact fees or local option gas taxes and infrastructure sales taxes, the proposed Mid-Point Bridge and corridor would not Ft. Myers to contribute directly to its cost. The record does not address whether the commitment of Lee County to the project prevents the County from sharing in other transportation expenses otherwise borne to a greater extent by Ft. Myers. Lee County intends to pay for the Mid-Point Bridge and the corridor between Del Prado-Boulevard and Interstate 75. The Lee County schedule of capital improvements, which are contained in the Lee County plan, includes the $168.4 million cost of the Mid-Point Bridge and corridor from Del Prado to Interstate 75. The capital improvement schedule identifies the revenue source as toll revenue bond proceeds. Cape Coral intends to pay for the corridor west of Del Prado Boulevard. The Cape Coral schedule of capital improvements includes $17.8 million for the design and construction of the east-west expressway from Del Prado to Santa Barbara and includes another $6.9 million for related right-of- way acquisition. The Cape Coral plan, as amended August 27, 1990, identifies impact fees and gas taxes as sources for the needed revenue, although later amendments identify other sources as well. In running computer simulations, the MPO used the Florida Standard Model to process socioeconomic data inputs and project levels of service for various network alternatives. The TAC validated the modeling by comparing projections to current travel conditions. The MPO or TAC approved the model after reviewing the validation results. After approving the model, the MPO and TAC unanimously approved the socioeconomic data in December, 1986. In addition to the specified transportation network, the data inputs include such socioeconomic data as projected populations, numbers of housing units by type, pp categories by type, and school enrollments. Generally, each TAC member supplied the socioeconomic data for the jurisdiction represented by that member. Decisions concerning the evaluation of data were by majority vote. The TAC and its outside consultant, Wilbur Smith and Associates, selected alternatives to test, although it appears that the TAC had considerable discretion in `the choice of alternatives. The socioeconomic data were correlated to applicable land uses, which were derived from land use plans then in effect for the various jurisdictions. None of these land use plans contained the comprehensive revisions required by the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (the Act). By running traffic simulation models, Wilbur Smith and Associates determined the relationship of population to employment for 1980 and projected the relationship to 2010. This work was reflected in Map G of the 1989 Data and Analysis and 1990 Data and Analysis. Wilbur Smith and Associates then simulated the travel projected to occur in the area and the routes to accommodate such travel. This work eventually was incorporated into the travel desires map, which, is Map F of the 1989 Data and Analysis and 1990 Data and Analysis. The modeling process is iterative. The first network model led was the existing and committed road network, as of February, 1987. This system, as expected, was grossly inadequate to handle projected growth through 2010. The existing and committed network consisted of, the following committed projects: the Edison Bridge six-laning, the cape Coral Bridge four-laning, an extension of Colonial Avenue, and multi-laning of State Road 80. The next network modelled was the MPO 2000 Long Range Transportation Plan. The predecessor to the 2010 Needs Plan, the 2000 Long Range Transportation Plan, which included the Mid-Point Bridge, provided an ample road network. A total of 15 assignments were run prior to the preparation and adoption of the Needs Plan. The computer modelling represents the first time that the MPO undertook such work on its own or with an outside consultant. By the latter half of 1987, the TAC and Wilbur Smith and Associates had prepared Assignment D, which included much of what was eventually included in the Needs Plan. Assignment D became a base against which other alternatives were tested. At the request of Ft. Myers, the TAC and Wilbur Smith and Associates ran an assignment without the Mid-Point Bridge. This assignment included the Iona Cove Bridge expanded to four lanes and served by a freeway. /8 As ultimately adopted in the Needs Plan, the Iona Cove Bridge and Southern Corridor would consist of a two-lane bridge downstream from the Cape Coral Bridge and about 2 1/2 miles upstream from the mouth of the Caloosahatchee River. On the Cape Coral side, the Southern Corridor would connect indirectly to the Cape Coral Parkway well west of the Cape Coral Bridge. On the Ft. Myers side, the Southern Corridor would be a new four-lane expressway in south Lee County that, from west to east, would intersect Metro Parkway and then Interstate 75. As a two-lane expressway, the Southern Corridor would turn north, passing south of the regional airport, and teirminate at Lehigh Acres in east Lee County. The simulation without the Mid-Point Bridge was Assignment G. Due to faulty data inputs, 9 possibly concerning one or more developments of regional impact in south Lee County, the MPO reran the requested alternative as Assignment J. Assignment J is the only valid assignment excluding the Mid-Point Bridge except for the initial run of the base network. Table A-I of Technical Report 3, which was prepared by Wilbur Smith and Associates, compares projected traffic volumes on various road segments based on Assignment D and Assignment J. In Assignment D, the Iona Cove Bridge would be a two-lane facility with expressway approaches, rather than freeway approaches. Treating the Edison, Caloosahatchee, and Metro Bridges as a single corridor with a capacity of 138,000 trips per day, Table A-I projects that these bridges would handle, under Assignment D, 142,864 trips per bay and, under Assignment J, 153,605 trips per day. The respective volume to capacity ratios are 1.04 and 1.11. The Mid-Point Bridge in Assignment D would have a capacity of 76,000 trips per day and would carry 36,542 for a volume to capacity ratio of 0.48. The Cape Coral Bridge, with a capacity of 33,600, is projected to serve 34,565 trips per day under Assignment D and 43,778 trips per day under Assignment J. The respective volume to capacity ratios are 1.03 and 1.30. Table A-I considers a group of three north-south roads in Ft. Myers, including U.S. 41, in three segments as they travel south from the river. The range of volume to capacity ratios, under Assignment D, from 0.76 to 1.00 and, under Assignment J, from 0.84 to 1.06. Table A-I reports the results for 18 other segments in Cape Coral or Ft. Myers. All but four of these segments are below a volume to capacity ratio of 0.95 under Assignment D. With Assignment J, eight segments exceed 1.0 and two more exceed 0.95. The MPO adopted the Needs Plan on January 21, 1988. After running 14 more assignments, the MPO adopted the Financially Feasible Plan on November 17, 1988. The more elaborate Needs Plan contains a four-lane Metro Bridge with Metro Parkway as, a divided six-lane arterial south of the bridge and a four-lane expressway to U.S. 41 north of the bridge. The Caloosahatchee Bridge remains four lanes, as would be the proposed Mid-Point Bridge. To the west, Everest Parkway is a four-lane freeway to Del Prado Boulevard, then Everest turns into a four-lane expressway as it is extended west to join the existing Miracle Parkway. As the new expressway turns north toward New Burnt Store Road, it is reduced from four to two lanes. To the east of the Mid-Point Bridge, the Needs Plan converts Colonial Boulevard to a four-lane freeway with a pair of one-way service roads and elevated interchanges at Summerlin Road, U.S. 41, and Metro Parkway. The one-way service roads continue east to the vicinity of Interstate 75, but Colonial becomes a four-lane expressway east of Metro. The Financially Feasible Plan retains the four- lane Metro Bridge, but reduces the capacity of the adjoining corridor to the north. Mid-Point Bridge remains four lanes, but, on the Cape Coral side, the expressway is reduced from four lanes to two lanes at Santa Barbara Boulevard rather than at New Burnt Store Road. To the east of the Mid-Point Bridge, Colonial remains unchanged from the Needs Plan. The Financially Feasible Plan eliminates the Iona Cove Bridge and the eastern half of the Southern Corridor. The southern half of the expressway is shown, but is reduced to two lanes and ends west of Interstate 75. Another important source of data and analysis relating to the Mid- Point Bridge and approaches is a draft environmental impact statement prepared by Lee County for the Mid-Point Bridge and corridor. The Draft EIS considers the proposed Mid-Point Bridge in the context of two alternatives: "no action" and the construction of the Iona Cove Bridge and Southern Corridor. Exhibit 7 of the Draft EIS /10 portrays the Colonial corridor east of the Mid-Point Bridge. Consistent with the MPO Needs Plan's depiction of elevated interchanges at Summerlin, U.S. 41, and Metro Parkway, Exhibit 7 also shows overpasses at McGregor, Fowler, Evans, and the railroad track. By the summer of 1987, Lee County had retained Greiner, Inc. as a consultant to assist in the preparation of the Draft EIS. Cape Coral, which joined Lee County in proposing the project, hired Kimley-Horn & Associates, Inc. to assist in projecting transportation planning impacts west of Del Prado Boulevard. The Coast Guard, which served as the lease agency, approved the final environmental impact statement in September, 1990 (EIS). Greiner retained Wilbur Smith and Associates as a subconsultant to perform traffic modeling for roads east of Del Prado, and Kimley Horn performed modeling for Cape Coral for roads west of Del Prado. Either Griner or Wilbur Smith and Associates prepared Exhibit 5 /11 in the Draft EIS. Exhibit 5 identifies various existing and proposed river crossings, supplies actual 1986 traffic volumes, and projects traffic volumes for 2010 if no action were taken, if the Mid-Point Bridge were constructed, and if the Iona Cove Bridge and Southern Corridor were built. For 2010 projections, Exhibit 5 presumed that the Edison Bridge would be six lanes, Caloosahatchee Bridge would be four lanes, Cape Coral Bridge would be four lanes, and Metro Bridge would be added. For 1986, Exhibit 5 shows the Edison Bridge as handling 19,700 trips daily for a level of service of E, the Caloosahatchee Bridge as handling 45,800 trips daily for a level of service of D, and the Cape Coral Bridge as handling 45,400 trips daily for a level of service F. If no action were taken, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 59,400 and C; Caloosahatchee Bridge 59,500 and E; and Cape Coral Bridge (which was widened after 1986) 65,950 and If the Mid-Point Bridge were built and the Iona Cove Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 53,140 and B; Caloosahatchee Bridge 52,400 and D; Mid-Point Bridge 47,400 and C; and Cape Coral Bridge 41,870 and C. If the Iona Cove Bridge were built and the Mid-Point Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 56,427 and C; Caloosahatchee Bridge 56,250 and D; Cape Coral Bridge 45,740 and D; and Iona Cove Bridge 34,600 and B. Composite Exhibit 4 of the Draft EIS /12 projects average annual daily traffic for over 100 road links /13 mostly on the Ft. Myers side of the river and bounded on the east by Interstate 75 and the south by the Southern Corridor. The projections address alternatives of no-action, the Mid-Point Bridge, and the Iona Cove Bridge. Twenty of the Ft. Myers links most directly affected the addition or deletion of the Mid-Point Bridge yield 537,398 trips under the no-action alternative, 614,280 trips under the Mid-Point Bridge alternative, and 522,425 trips under the Iona Cove Bridge alternative. /14 With the Mid-Point Bridge, the new elevated freeway is projected to receive about one-third and two-thirds more traffic than Colonial presently experiences just west of Metro Parkway and just west of U.S. 41, respectively. With the Mid-Point Bridge, the projected number of trips on these two links are, respectively, 40,900 and 52,700. Just west of Summerlin, the traffic volume on Colonial increases from 6400 to 43,300 trips. Even if the three Colonial links are excluded from the 20 links, the total volume remains greatest under the Mid- Point Bridge and corridor alternative, which is projected to have 477,380 trips. For the remaining 17 links, the no-action alternative generates 469,038 trips and the Iona Cove Bridge and Southern Corridor alternative generates 455,345 trips. Analyzing the same data, Transportation Planner and Engineer Marty Wells, who is an employee of Gorove-Slade, testified on behalf of Ft. Myers that he examined the links identified by the Draft EIS that are in the City limits. These links yield the following volumes under the three alternatives: no action--1.84 million trips; Mid-Point Bridge and corridor-- 2.1 million trips; and Iona Cove Bridge and Southen Corridor-- 1.8 million trips. May 15 Transcript, pages 29 et seq. Using existing data, Mr. Wells also calculated the capacities for these links. Based on the volumes in the preceding paragraph, the overall volume-to-capacity ratios for Ft. Myers' links are as follows for the three alternatives: no action--0.60; Mid-Point Bridge and corridor--0.68; and Iona Cove Bridge and Southern Corridor--0.59. In other words, the Mid-Point Bridge and corridor, if built, would mean that overall traffic would absorb 68% of the capacity of Ft. Myers links most affected by the proposed project. The no-action alternative, on the other hand, would mean that overall traffic would absorb only 60% of the capacity of the same links. Table 415 of the Draft EIS reports other variables among the three alternatives. The first is that total daily river crossings in 2010 are greatest if the Mid-Point Bridge is built. The Mid-Point Bridge alternative generates 196,110 river crossings daily. The Iona Cove Bridge alternative generates 193,020 daily river crossings, and the no-action alternative generates only 186,090 daily river crossings. Under total vehicle hours of operation, Table 4 projects for 2010 the following figures: no-action alternative-- 656,902 hours; Mid-Point Bridge alternative--638,433 hours; and Iona Cove Bridge alternative--660,483 hours. Total vehicle miles are projected as follows: no-action alternative--14,466,600; Mid-Point Bridge alternative--14,437,100; and Iona Cove Bridge alternative--15,013,456. Table 5 of the EIS compares the Mid-Point and Iona Cove alternatives. These data were available by February, 1989. The Mid-Point Bridge and corridor would require 8.8 miles of corridor and 1.5 miles of bridge over the river, reduce vehicle miles traveled from the no-action alternative, by 30,000 daily, bypass wetlands, cost about $170 million, and require the relocation of 100-350 residences, 2' 6-56 businesses, and 1-4 nonprofit operations. The Iona Cove Bridge' and Southern Corridor would require 19.3 miles of corridor and 2.4 miles of bridge over the river, increase vehicle miles traveled from the no-action alternative by 550,000 daily, require the removal of 10-30 acres of wetlands, cost about $266 million, and require the relocation of 317-361 residences and 10 businesses. Table 5 of the EIS concludes that the Mid-Point Bridge would result in "more efficient distribution of traffic across combined bridges," and the Iona Cove Bridge would result in "[s]omewhat less efficient distribution of traffic across combined bridges." Table 5 reports that the "Mid-Point Bridge alternative "[c]omplies with existing land use plan; supports existing business communities," and the Iona Cove Bridge alternative would be "[non-compliant with land use plan; bypasses existing business communities." The Draft EIS concludes that the Iona Cove Bridge alternative is not a "reasonable or feasible" alternative to the Mid-Point Bridge alternative. The, EIS later cautions, however, that the Iona Cove Bridge alternative may have a role in the "very long term" transportation network. After rejecting the Iona Cove Bridge alternative, the Draft EIS reports that the "`No Action' Alternative is the base caste against which the [Mid Point Bridge project) is compared in order to determine the benefits and impacts of the project." The EIS reveals more of the analysis undertaken by the Coast Guard in reaching its latter conclusion that the no- action alternative "is not a reasonable alternative." EIS, page 171. To the extent that any data are implicit in such analysis, the data were available in February 1989. Offering a somewhat `expanded version of a discussion of community impact contained in the Draft EIS, the EIS notes that the State of Florida has designated as an "historic highway" McGregor Boulevard from U.S. 41 to College Parkway, which leads to the Cape Coral Bridge. The EIS acknowledges that Lee County and Ft. Myers have ordinances similar to state law with one key difference. The County ordinance specifically allows construction of an overpass for the Mid-Point Bridge corridor, and the City ordinance specifically prohibits such crossings. The EIS observes that litigation is pending over the controversy concerning the McGregor overpass, which would require the removal of about seven Royal Palms along McGregor according to the EIS. EIS, page 2-41. In a similar vein, the EIS reports that the Colonial corridor would mean, due in large part to the existing Colonial arterial, little community- disruption from "proximity" effects, such as "air and noise pollution, visual impacts, access changes, and other considerations." EIS, page 2-37. The EIS anticipates that 75 acres would be required for additional right-of-way along Colonial Boulevard. Id. at page; 2-38. The EIS considers in some detail the impact of noise pollution. The corridor would result in noise levels in excess of those set for residential use and would affect 26 dwelling units along the Colonial corridor. EIS, page 4-56 and Tables 35 and 36. Sound barriers are not technically feasible for the road surface between the river and McGregor and Summerlin and U.S. 41. EIS, page 4-57. For the remainder, cost barriers are implicitly deemed cost ineffective. The EIS envisions a 288'-330' right-of-way along Colonial Boulevard. The right-of-way would be within about 150' of Rio Vista Way. The corridor would be elevated 22'-24'. Turning to the Cape Coral side of the project, the EIS states: It is envisioned that a direct east-west roadway corridor [on the Cape Coral side of the river would enhance future residential development in the area. EIS, page 4-2. The EIS generally fails to address any need for the development in Cape Coral of commercial, industrial, recreational, or institutional uses. The EIS contains detailed comments from Ft. Myers' counsel with an appendix containing, among other things, comments from Ft. Myers' transportation consultant, Gorove-Slade Associates, Inc. Ft. Myers' counsel submitted these comments to the Coast Guard on September 22, 1989, and the EIS also contains the Coast Guard's undated responses. One suggestion of the Gorove-Slade representative is that reversible lanes on the existing bridges could accommodate the present and future demand. The Gorove-Slade letter suggests that reversible lanes are feasible as long as the directional imbalance on a bridge is "normally 2:1 to 3:1." The Gorove-Slade letter asserts that the imbalance is 67/33, which is of course within the above-stated range. Rejecting the suggestion of reversible lanes, the Coast Guard first erroneously concludes that the 67/33 split is not greater than 2:1. Then the Coast Guard states that the more recent directional imbalance is 58/42. The source of the Coast Guard's data is undisclosed. However, the evidence is abundant that the cross-river traffic is at least 2:1 toward Ft. Myers on weekday mornings and 2:1 toward Cape Coral on weekday afternoons. Even Lee County's witness, Ronald Talone, who was formerly employed in the Lee County Planning Department, testified to a 67/33 split based on data that Lee County had collected./ 16 The Coast Guard response also relies upon "potential shifts in land use patterns [in connection with) land use plans, which were the basis for [the Draft EIS] analysis. The results show an overwhelming need for the Midpoint Bridge Corridor." EIS, page 151. The basis for this statement apparently is the work of Lee County's consultant, who replicated future land uses under the settlement agreement between DCA and Lee County. However, this work was "unofficial" and offered only "initial results." EIS, page 159. The EIS notes that the settlement between Lee County and DCA required the county to reduce densities in outlying areas, such as those served by the Southern Corridor proposed by Ft. Myers. The reductions reportedly were as much as 10,000 percent, "further reducing the travel production/attraction base in those areas." EIS, page 160. The consultant also considered the plans of "cities in the region." EIS, page 146. However, it is unlikely that the consultant considered the plans adopted pursuant to the Act. It is difficult to determine the extent to which any traffic modeling in this case was informed by the future land use designations contained in the plans of Lee County, Cape Coral, and Ft. Myers under the Act. If not done, it is impossible to determine the impact of changed future land uses, which could result in large changes in the distributions of new residents. /17 However, later modeling--presumably incorporating changed future land uses--reportedly did not generate significantly different traffic volumes, at least for the various river crossings. Such later modeling includes that performed by Gorove- Slade for Ft. Myers. Focusing directly on land use planning concerns, the Coast Guard explains one of the reasons why it did not oppose the Mid-Point Bridge proposed by Lee County and Cape Coral: The concept of intentionally prohibiting construction of a bridge to force development on one side of a river is inappropriate and contrary to urban development concepts. In this instance, the no-bridge alternative would not stimulate development, given the interdependent nature of the Lee County economy. EIS, page 151. Lee County did not attempt to tell the city governments to change their Future Land Use elements, as the Fort Myers comments suggest that Cape Coral be instructed to do. * * * Alternative land use planning is not the purview of the transportation planner and is outside the scope of the project to plan this single bridge crossing. Instead, a project such as this is required to accept the adopted land use plans and the projected travel demand based on them. EIS, pages 169 and 171. Alluding to the land-use planning responsibilities placed upon local governments by the Act, the Coast Guard notes: Since the publication of the [Draft EIS], an important event has taken place in regard to this specific issue, rendering [a fatteners'] comment obsolete. The top state land planning agency, the Department of Community Affairs, found the Fort Myers' Comprehensive Plan to be non-compliant with state land planning guidelines because it prohibited the Midpoint Bridge, which is include in the plans of the county, the region, /18 and the City of Cape Coral. Administrative hearing procedures were scheduled to settle the issue but, instead of defending its opposition to the bridge, the city elected to remove the wording obstructing the project from the Comprehensive Plan. Instead, the city agreed to enter binding arbitration on the issue. Id. at page 153. Specifically addressing urban sprawl, the Coast Guard response states: Lee County Future Land Use plans since 1984 have aimed at containing urban sprawl through encouraging compact development patterns. The 1984 Lee Plan was based upon an urban service area concept, which focused future growth on the existing urbanized areas and their environs through a combination of land use categories, density allocations, infrastructure policies, and environmental protection standards. The 1989 Lee Plan continued to stress the importance of existing and permitted urban areas as the focal points for more intensive future growth. The major existing and permitted urban areas in Lee County, in terms of size, are clearly Cape Coral, Fort Myers (including its Urban Reserve area for future growth), and Lehigh Acres. . . . Both the 1984 and 1989 Lee Plans recognized these three major urban areas as givens, where preexisting investments and governmental approvals dictated the need for public services and infrastructure. Together, they constitute a tier of urban areas extending across the northern central part of the county, which is served by the east-west alignment of the Midpoint Bridge Corridor as extended to connect with Lee Boulevard in Lehigh Acres, as shown on the [Financially Feasible Plan]. The logic of connecting the population concentrations of Fort Myers and Cape Coral, the two largest urban areas in the County, with a primary east-west route is clear; with the extension to Lee Boulevard in Lehigh Acres, the logic of the Midpoint Bridge is even stronger. EIS, page 168. Summarizing its findings as to the planning decisions made by Lee County, the EIS concludes: The 1989 Lee Plan builds upon the 1984 Lee Plan. It was adopted as a result of the mandatory process of participation and review. It contains a responsible strategy for managing the large and rapid growth of the county. It sets forth numerous policies for providing the infrastructure necessary to support future populations, for projecting the sensitive natural environment, for paying for future public facilities, for maintaining a reasonable and compact, future land use pattern, and for buildings the necessary transportation network to allow its citizens to move efficiently between their homes, work, recreation, and shopping destinations. It is not a utopian document based upon unsubstantiated opinions, but a practical guide to development based upon the best available data and information. Following the amendments from the Stipulated Agreement, [the 1989 Lee Plan) will be fully consistent with Florida law and an even more effective guide for future development, in terms of reducing sprawl, protecting the environment, maintaining desirable land use patterns, and providing orderly expansion of roads and infrastructure. EIS, pages 169-70. Other Sources of Data and Analysis The Regional Comprehensive Policy Plan of the Southwest Florida Regional Planning Council (Regional Plan) contains land use analysis. Prepared no later than May 21, 1987, when the current version of the Regional Plan was adopted, the land use analysis was in existence at the time of the adoption of the Plan. In its analysis of the regional issue of Balanced and Planned Development under Land Use, the Regional Plan notes: The growth that has occurred [during the recent period of rapid growth that the region has experienced] can also", be considered "imbalanced." This imbalance is of two natures: inadequate development of certain common aspects of urban areas and inadequate distribution of certain types of urban areas. A lack of manufacturing is sometimes considered an indication of the urban inadequacies. More commonly, the problem is described as a lack of suitable jobs within industrial, office, education, and research facilities. The uneven distribution of urban uses is best (but not solely) depicted by an aerial view of the Region's major subdivisions, entire townships devoted to residential uses. Such areas have only limited commercial uses, few of the necessary public use site's, and high demand for transportation improvements for access to other areas. This lack of diversity is the result of private sector planning, namely large development projects, and traditional zoning techniques which discourage the use of planned unit developments by making them special exceptions and by segregating uses into separate zoning categories instead of using a performance zoning approach. Regional Plan, page 16-2. Another source of data and analysis is the Cape Coral comprehensive plan. Both the operative provisions and data and analysis provide a potential source of data and analysis in support of the Ft. Myers Plan. Adopted on February 13, 1989, the Cape Coral plan was in existence when the Ft. Myers plan was adopted. Amended August 27, 1990, the Cape Coral plan amendments were likely available, given noticed and public participation requirements, when Ft. Myers amended, its plan one week earlier. Cape Coral's Transportation Data and Analysis discloses that the city's strategy through 2000 is to direct future growth into the Infill and Transition areas. The Infill Area is located in Cape Coral's southeast quadrant, which has historically served as the growth center from which new growth emanated. The eastern two miles off Everest Parkway run through the Infill Area, dividing its northern third from its southern two-thirds. The Transition Areas is a band of land north and west of the Infill Area. Although Everest Parkway presently ends at the west limit of the Infill Area, the southern end of the Transition Area encompasses about 1 1/3 miles of the proposed Everest Parkway extension. Cape Coral's Transportation Data and Analysis rejects the MPO data concerning population projections for Cape Coral. The differences are significant. Rejecting the MPO projection as "lack[ing] any credibility, and . . . of no value as a planning tool," Cape Coral projects that its population would reach 100,000 persons by 2000, not 2010. Transportation Data and Analysis, pages 6-7. Cape Coral also contests other important socioeconomic data on which the MPO models rely, such as where Cape Coral residents actually reside or will reside. The MPO study "projected" that about 70% of-the population "lives" in the Infill and Transition Areas. The Cape Coral existing land use map provides that at least 90% of the population lives in these two areas. Cape Coral's Transportation Data and Analysis notes that the present location of commercial/office and other employment activities in Cape Coral is generally along the most heavily traveled roads, especially the Del Prado Boulevard, Cape Coral Parkway, and the Downtown Business District. This "strip commercial development" has engendered traffic congestion along these critical arterials. Without its own data or analysis as to employment trends, Cape Coral adopts the MPO data and analysis concerning, employment trends. This includes a projection that total employment within Cape Coral will increase from an estimated 8000 persons in 1980 to over 27,000 persons, presumably by 2000. Also, the ratio of Cape Coral residents to jobs in Cape Coral is expected to decrease from 4.2:1 in 1980 to 3.7:1 in 2000. The data and analysis add: "If the City commercial acreage estimates are realized, however, an even more favorable ratio would result." Transportation Data and Analysis, page 9. In any event, "Employment growth is expected to increase twice as fast as residential growth." Id. at page 8. Cape Coral's Transportation Data and Analysis acknowledges a clear directional flow or modal split of cross- river traffic: Until [the Cape Coral Bridge) is widened to four lanes (scheduled by the County for 1989), mile long traffic queues will continue to exist on the Cape Coral side of the bridge during the morning peak period and on the Fort Myers side during the afternoon peak. Transportation Data and Analysis, page 20. Through 2000, the destination of tries will remain largely outside the City of Cape Coral. Lacking "high intensity employment centers, airports or other facilities that attract County residents [to Cape Coral], the prime reason for travel into Cape Coral by nonresidents is to provide services, such as construction. Transportation Data and Analysis, page B-2. But this factor is relatively insignificant, as the data and analysis predict that, by 2000, there will be twice the number of trips to points outside the city than to points within the city. Transportation Data and Analysis, page 44. In the meantime, however, intensive growth will outstrip the capacity of Cape Coral's internal parkway system, id. at page 49, and Cape Coral's strategy in "road programming has been to the major roads into the two new proposed County Bridges". Id. at page 60. The Cape Coral plan contains operative provisions that, to some extent, address the historic absence of employment and regional shopping opportunities in the city. These provisions generally involve the attempt to deal with vacant, platted land and promote a mixture of uses in the city. /19 The Lee County plan was most recently amended on September 17, 1990. Based on the above mentioned notice and participation requirements, it is likely that all provisions were in existence when Ft. Myers adopted its amendments on August 20, 1990. The Lee County plan contains a number of provisions encouraging the development and redevelopment of mixed uses. /20 Lee County's traffic circulation element policy 21.1.1 adopts the Financially Feasible Plan with five minor changes. /21 Policy 21.1.3 is for the county's current Thoroughfare Alignment Project to reexamine the transportation model used to generate the MPO plans. Concerning the Mid-Point Bridge and associated corridor, the Lee County traffic circulation element states in relevant part: GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION CORRIDORS. To provide for efficient intra- county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county. OBJECTIVE 24.1 MID-POINT CORRIDOR. Create a new east-west transportation corridor, possibly of limited access design, across central Lee Counts in order to alleviate existing congestion of traffic crossing the Caloosahatchee River. POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-Point Bridge. POLICY 24.1.2: The construction of this east-west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity. POLICY 24.1.3: Due to the public need to provide this critically important corridor so as to solve roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment, which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility. POLICY 24.1.4: Because of the high priority Lee County placed on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993. * * * The Lee County intergovernmental coordination element provides, in relevant part: GOAL 28: INTERGOVERNMENTAL COORDINATION. Lee County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County. OBJECTIVE 28.1: PLANNING. Lee County will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT. POLICY 28.1.1: The county will participate in the MPO and Regional Planning Council planning processes for system-wide facility needs. POLICY 28.1.2: The County will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued. * * * Various other sources of data and analysis were in existence when the Plan was adopted. As Colonial proceeds east of McGregor, the prevailing and planned land uses are predominantly commercial, and the existing commercial uses are dependent upon direct access to Colonial Boulevard. The addition of an elevated freeway or expressway would tend to reduce business for some of these roadsides commercial uses due to, among other factors, the presence of one-way service roads in place of two-way traffic, less on-site parking, and less visibility from the road. However, the record establishes no more than a temporary reduction in commercial property values. It is unclear whether, in the longer term, commercial uses, especially the older ones along the western part of Colonial, would be impaired by a freeway. The record does not preclude the possibility that the corridor could lead to commercial revitalization, especially at the Summerlin, U.S. 41, and Metro Parkway interchanges. The existing and planned land uses on both sides of McGregor north and south of Colonial are low density residential. The record establishes that the elevated freeway would, through noise and visual impact, have a negative impact upon these and possibly other residential areas. However, the record does not establish the extent of such an impact. The record does not establish that the freeway would impair access between points within the affected area. Presently, motorists, pedestrians, and bicyclists must cross Colonial, which is an at-grade six-lane arterial west of U.S. 41. Accessibility with the Mid-Point Bridge corridor would depend upon a variety of factors, such as the design of the service roads and three interchanges, the sign of the other overpasses, the traffic on the service roads, and the traffic on the north- south roads in the vicinity of the corridor. Provisions of Ft. Myers Plan Traffic Circulation Element (TCE) Objective 1 is "To meet the transportation needs of the incorporated area through a balanced system of roadway, rail, air, boating, public transportation, and bicycle and pedestrian facilities." TCE Objective 2 is, "To maintain or provide adequate road capacity to meet present and anticipated future traffic needs." TCE Policy 2.4 is: "New roadway corridors will be provided when justified by needs where feasible, and when exiting corridors cannot meet the need. TCE Policy 2.6 is: "The City will obtain traffic counts and intersection studies to determine current service levels." Standard 2.6.3 mentions capacity constraints on McGregor Boulevard and all roads in the downtown area; for those, the peak hour, peak season acceptable level of service is "Maintain and improve." The downtown area is limited to the immediate vicinity of the Caloosahatchee and Edison Bridges. TCE Objective 5 is: "To preserve the integrity and quality of residential areas, major activity centers, and recreational and environmental resources." TCE Policy 5.1 is: "Proposed transportation improvements will be coordinated with existing land uses and the Future Land Use Map." TCE Action 5.1.1 is: "Changes to the Future Functional Classification Map (Map F) that would change proposed rights-of-way requirements, will be developed in accord with adjacent land uses as well as bin accord with the City's overall needs." TCE Action 5.1.2, which was amended at least to add the language concerning the Mid-Point Bridge, states: No new transportation corridors or improvements will be permitted which could preclude those indicated on the Major Thoroughfare Map (Map G)--unless, with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. Any proposed amendment to the Thoroughfare Plan must be consistent with all Traffic Circulation policies as well as other Comprehensive Plan Elements. TCE Policy 5.2 is: "Any transportation improvements proposed for McGregor Boulevard shall consider its qualities as a special historic and scenic corridor." Action 5.2.1 provides that, except under certain conditions, there shall be no new street connections, road connections, road intersection, or the widening of any existing, intersections and no overpasses or underpasses, made either with, under, or over McGregor Boulevard or any alteration of the physical dimensions, appearance, or location of this corridor . . . However, new street connections, road connections, road intersections, or widening of any existing intersections and overpasses or underpasses may be made either with, under, or over McGregor Boulevard or alteration of the physical dimensions, appearance, or location of this corridor with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, if the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. At least the language following the ellipses is the result of a plan amendment. TCE Policy 5.3 is: "Transportation improvements proposed in or near residential arenas will contain appropriate mitigation measures." TCE Objective 6 is: "To obtain the cooperation and active participation of all responsible governments in the coordinated implementation of the metropolitan transportation plan." TCE Policy 6.1 is: "All proposed major transportation improvements, including all improvements which extend beyond the limits of the City, will be coordinated with the other affected jurisdictions prior to City approval of the improvement." TCE Action 6.1.1 is: "The City will participate in the committees of the Metropolitan Planning Organization to ensure that this policy is met." TCE Policy 6.2 is: "The City will actively participate in the development and review of transportation improvements proposed by other jurisdictions." TCE Action 6.2.1 is: "The City will participate in the County's Planning Technical Advisory Committee to ensure that this policy is met." Intergovernmental Coordination Element (ICE) Goal 2, which, together with its objectives and policy, was added by amendment, states in its entirety: It is the goal of the City of Fort Myers to resolve the conflict with Lee County. and the City of Cape Coral concerning the Mid-point Bridge through ban independent, objective, equitable, efficient and binding process as an alternative to the litigation in Lee County vs. City of Fort Myer, Circuit Court Case No. 88-5598 CA-RWP pending in the 20th Judicial Circuit for Lee County, that will ensure that all relevant factors and concerns are fairly and objectively evaluated. Objective 1. In order to achieve the City's goal of resolving the conflict over the proposed Mid-Point Bridge, it is the objective of the City of Fort Myers to abate the pending litigation between the County and the City in regard to the Mid-Point Bridge and to enter into a binding conflict resolution process that will provide a balanced determination of the need for and appropriateness of the proposed Mid-Point Bridge in terms of the following factors: county-wide transportation needs; the comparative effectiveness and cost benefit of reasonable alternative transportation solutions; social, cultural economic and environmental impacts on the City of Fort Myers and Lee County; and long-term financial feasibility and cost-effectiveness. Policy 1.1 It is the policy of the City of Fort Myers in regard to the conflict over the proposed Mid-Point Bridge to submit the conflict to a conflict resolution process that contains the, following elements: An objective, independent decision maker who has substantive, and/or technical familiarity with land use and transportation issues; A fair and reasonable opportunity for all affected persons including the City of Fort Myers to submit substantive information in regard to the merits of the proposed Mid- Point Bridge; A resolution of the conflict and the merits of the proposed Mid-Point Bridge based on the following principles: the proposed Mid-Point Bridge should not be constructed if it can be reasonably demonstrated that implementation of the comprehensive plans of Lee County, the City of Fort Myers and the City of Cape Coral will result in a shift in land use patterns, transportation management systems, or increased modal splits that will reduce the projected number of rivers crossings so that there is no need for the proposed Mid-Point Bridge; the proposed Mid-Point Bridge should not be constructed if peak hour levels of service on existing and committee river crossings, with or without operational improvements such as reversible lanes, will provide an acceptable level of service; the proposed Mid-Point Bridge should not be constructed if there are reasonable alternatives that have the following characteristics: reduced or equal costs; equal or superior transportation capacity too serve county wide transportation needs; arid reduced social, cultural, economic or environmental impacts on the residents of the City of Fort Myers. For the purposes of this paragraph, reasonable alternatives Shall include, but not be limited to, river crossings at other locations, a county-wide beltway or circumferential road system and non-geometric improvements such as transportation management systems, reversible lanes and the like. 4) Any determination-of fact shall be based on a standard of preponderance of the evidence. The Future Land Use Element (FLUE) Objective 1 is: "Coordinate land development with the public and private provision of community services and facilities, soil suitability, and topography." FLUE Objective 2 is: "Protect distinct functional areas from intrusion and encroachment of incompatible uses." FLUE Objective 3 is: "Protect significant natural and historic resources from intrusion and encroachment of incompatible uses." FLUE Objective 4 is: "Ensure a balanced distribution and allocation of the various land uses in newly developing areas." FLUE Objective 5 is: "Revitalize declining areas through rehabilitation, redevelopment, and infill strategies as appropriate." Map C, which accompanies the FLUE, designates the following corridors as part of the "corridor improvement strategy": U.S. 41 on both sides of Colonial, Evans Avenue north of Colonial to the river, Fowler south from the river but only about halfway to Colonial, and three east-west routes including Palm Beach Boulevard, which runs along the river, from Interstate 75 to the proposed landfall of the Metro Bridge. Map C designates the following corridors as part of the "corridor conscious" development strategy. Less in need of redevelopment than those named in the preceding paragraph, the corridor conscious corridors include Colonial Boulevard, Winkler Avenue, Summerlin Road south of Colonial Boulevard, Metro Parkway north and south of Colonial and in the vicinity of the Metro Bridge, and Palmetto, Marsh and Ortiz Avenues on both sides of Colonial. FLUE Policy 5.2 is for the central business district to be "redeveloped as the pre-eminent regional center." Provisions of Regional Plan Goal 19, Regional Issue B, of the Regional Plan concerns transportation and growth management. Policy 1 is: All regional transportation systems should be designed, upgraded or maintained to enable roadways to operate at, or above, a service level acceptable to the agency with land use authority, with operational maintenance responsibility, and with the affected surrounding local government, when such standards incorporate the minimum standards set by the agency having operational, and maintenance responsibility for that public facility, unless designated a special transportation area by those agencies and governments. Policy 3.d. is that transportation improvements are to be "related to seasonal and area needs in order to minimize disruption of the existing road network during periods of highest use." Policy 6 is: "Transportation plans should preserve, to the greatest extent possible, the integrity of residential areas." Policy 9 is: `"Transportation investments should be directed in such a way so that they contribute to efficient urban development." Goal 20, Regional Issue A, of the Regional Plan addresses intergovernmental coordination. The policies suggest the improvement of intergovernmental coordination through the use of interlocal agreements, technical assistance, and solicitation of review and comments. Regional Issue D speaks in stronger terms, but only requires, by 1996, that "each jurisdiction will have enacted the appropriate administrative arrangement to ensure coordination occurs." Pursuant to this Issue, Policy D states: "Mediation of jurisdictional disputes should be pursued by local governments as a first alternative to judicial action." Goal 16 of the Regional Plan concerns land uses. Regional Issue A relates to balanced and planned development. The first policy is: "The plans of all jurisdictions should promote balanced and planned development." Policy 3.e. suggests that comprehensive plans "ensure existing urban areas are protected from the adverse impacts of future growth." Policy 3.i. suggests that plans "provide for effective intergovernmental coordination methods for siting public and private locally unpopular land uses." Policy 3.1. suggests that plans "provide for new central business districts, as needed by urban growth." Policy 9 states: Comprehensive plans and land development regulations should provide incentives to develop and redevelop land downtown including allowing mixed uses, higher densities, shared parking, and improved vehicular access. Regional Issue C, which concerns the problem of already-platted, vacant lands in the region, contains Policy 3, which states: "Additional urban uses and protection of threatened resources within existing platted areas should be pursed through reassembly or other techniques." Policy 8 adds: "Each local government should provide alternatives to traditional development of platted lands." The Regional Plan does not recommend the construction of the Mid- Point Bridge. Map IV-10 of the volume entitled, "Description of the Region," identifies the bridge and corridor as a regional roadway "not yet constructed." Neither the map nor the surrounding text suggests that the Regional Planning Council has determined that the bridge and corridor should be built. /22 Ultimate Findings of Fact Sorting Data and Analysis TCE Policies 5.1, 5.2, and 5.3, and the implementing actions thereunder, prohibit the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. Lee County is unwilling to agree to the conditions set forth in ICE Goal 2. The refusal is justified because, for reasons set forth below, the offer to arbitrate contains an unreasonable condition. The Plan's treatment of the Mid-Point Bridge and corridor can be characterized as an intentional omission of these improvements from any road network for the city, and the Plan's offer to arbitrate, in effect, leaves the resolution of the Mid-Point Bridge dispute to the courts or voters. However, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor from the Plan is not supported by data and analysis. The data and analysis contained in the 1989 Data and Analysis and 1990 Data and Analysis are sparse in terms of support for the omission or inclusion of the bridge and corridor. Ft. Myers failed to incorporate into its data and analysis, verbatim or by reference, the best "available existing data, which were those generated by Lee County bin preparing the EIS, especially Composite Exhibit 4 of the EIS. However, the 1989 Data and Analysis and 1990 Data and Analysis contain analysis in support of the omission of the Mid-Point Bridge and corridor. The analysis consists mostly of consideration of the effect of the proposed project on various provisions of the Plan and the conclusion that the project would be inconsistent with these provisions. The Ft. Myers' planning strategy emphasizes more than the preservation of the historic and aesthetic values of McGregor Boulevard and nearby Rio Vista Way. The analysis justifies the omission of the ride and corridor by at least implicitly construing the Plan as part of an urban containment strategy that, if successful, benefits the region by promoting existing, close-in commercial uses and promoting the attractiveness of Ft. Myers as a place to live. This analysis finds some support in the data concerning the noise and visual impact of the corridor upon nearby residential areas. The most important sources of data and analysis in support of the omission of the Mid-Point Bridge and corridor are the Draft EIS and EIS, especially Composite Exhibit 4. Although Ft. Myers was aware of these data, it failed to include and analyze them, in the 1989 Data and Analysis or 1990 Data and Analysis. The most likely explanation for this omission is that the exclusion of the bridge and corridor was a foregone conclusion at the beginning of the planning process, and, until plan litigation became imminent Ft. Myers felt no need to explicate its opposition to the project. However, for reasons set forth in the Conclusions of Law, the sources of data and analysis available to support the plan are not limited to those identified or even actually relied upon by Ft. Myers in the plan-adoption process. The data and analysis contained in the Draft EIS and EIS support the exclusion of the Mid-Point Bridge and corridor because this project would tap, to some degree, latent travel demand and would result, to , a significant extent, in more traffic on Ft. Myers' roads. The corridor would also displace, at least in the short term, viable commercial uses whose proximity to downtown Ft. Myers and nearby residential areas is useful in maintaining a mixture of uses in Ft. Myers. The data and analysis do not, however, address the possibility of renewed commercial development along the corridor. It is therefore impossible to determine if the data and analysis suggesting the possible displacement of existing commercial uses are offset by data and analysis indicative of a possible revitalization of aging commercial uses. In short, data and analysis exist to support a decision by Ft. Myers to omit the bridge and corridor, and data and analysis also exist to support a decision by Ft. Myers to include the bridge and corridor, had it wished to do so. Little, if any, data and analysis exist that comprehensively net the benefits of the Mid-Point Bridge alternative against the benefits of the no-action or Iona Cove Bridge alternative. In large part, the conflict is between transportation and land use strategies whose competing sets of underlying data and analysis have not been evaluated in a process designed to identify the superior data and analysis from an appropriately broad perspective. In such a proceeding, no deference could be given to the planning preference of any individual local government. This is the first shortcoming of the EIS process in which due deference to the prerogative of local governments in local land use planning provided a procedural advantage to the proponents of the project, Lee County and Cape Coral. In any event, the conclusions of the EIS are supported by its data and analysis to the extent that the Coast Guard concludes that the decision of Lee County and Cape Coral to build the bridge is reasonable. The conclusions of the EIS that the other alternatives, especially the no-action, are unreasonable from a regional perspective, if even relevant to the present case involving only Ft. Myers' Plan, are based predominantly upon transportation considerations. These conclusions clearly are not based upon a comprehensive, objective, and informed review of comprehensive land use strategies, of which transportation strategies are a part. To the extent that the EIS concludes that the no-action alternative is an unreasonable land use strategy, such a conclusion is unsupported even by the data and analysis contained in the EIS. To some extent, Lee County and especially Cape Coral, although responsible for preparing nearly all of the relevant data in this case, have not sufficiently focused their data and analysis so as to justify a finding that the Plan's omission of the bridge and corridor is not supported by the data and analysis. The Lee County and Cape Coral data and analysis supporting the Mid-Point Bridge and corridor justify a transportation strategy linking more efficiently the bedroom communities to the east and west with each other and to shopping and jobs. By contrast, the omission of the bridge and corridor is based on more comprehensive land use planning considerations. Data and analysis supporting the exclusion of the Mid-Point Bridge and corridor address an overall land use strategy, to which transportation planning is properly subordinated. To some extent, the differing emphases reflect that Ft. Myers is a more established community than the fast- growing Cape Coral and Lee County. To some extent, the increased emphasis upon overall land use planning by Ft. Myers, as opposed to the focus upon transportation planning by Cape Coral in particular, may reflect varying planning philosophies. Cape Coral has suffered from the lack of an effective land use strategy to overcome the burdens of urban sprawl, which has engendered a monolithic land use dominated by low-density residential. The Cape Coral plan and data and analysis point to some improvement dealing with this problem. But to meet the burden of showing that the Ft. Myers strategy, which excludes the bridge and corridor, is supported by data and analysis, Cape Coral must offer data and analysis more effectively addressing land use planning issues, rather than merely transportation planning issues. Cape Coral cannot meet its burden in this case by presenting data and analysis supporting a transportation strategy of linking its internal parkways to bridges and building more bridges. Although such data and analysis may support Cape Coral's planning solutions, they are not so compelling as to displace the data and analysis presently supporting Ft. Myers' land use strategy of preserving a viable mixture of uses. The support for Ft. Myers' land use strategy excluding the Mid-Point Bridge and corridor is not overwhelming in terms of data and analysis. The increased traffic on city roads, noise pollution, and the visual impact support the decision. Other factors, such as impaired physical accessibility, commercial decline, and the extent of the negative impact upon residential integrity, do not so clearly support the decision. Even if present conditions clearly were to support the decision to exclude the bridge and corridor, changing conditions could later deprive Ft. Myers' decision of support from the data and analysis. New developments, such as Omni Park, could leave Colonial and nearby collectors, as well as McGregor, choked in traffic during nonpeak season, nonpeak hours. The decline of commercial uses along the western part of Colonial may in time require revitalization through redevelopment If so, imaginative planning solutions may :,"identify corridor-connected uses whose scale and type promote, rather than threaten, Ft. Myers' status as a viable mixed-use center. If sufficiently compelling under then-existing conditions, such solutions may even compel a bridge and corridor. But the data and analysis do not portray these conditions presently. Internal Consistency Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Action 5.2.1 is inconsistent with FLUE Objective 1. TCE Action 5.2.1 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. FLUE Objective 1 is, to coordinate land development with the adequate provision of facilities, which include roads. FLUE Objective 1 and its policy cluster require adequate levels of service for facilities (presumably for which concurrency is required), the availability of land for public facilities, development patterns that maximize, the use of existing public facilities, and coordination with Lee County and the Florida Department of Transportation regarding tide intensity of land uses and their location relative to collectors and arterials. There is nothing inherently contradictory between TCE Action 5.2.1 and FLUE objective 1. FLUE Objective 1 does not require the construction of the Mid-Point Bridge and corridor, just as it does not require that downtown segments of U.S. 41 or Fowler be widened to 12 lanes if there is sufficient traffic demand. FLUE Objective 1 does not requiring reducing the planning exercise to promising invariably to widening existing roads or building new roads in urban areas upon the identification of traffic congestion. Taking a wider view, FLUE Goal 1 is to ensure the achievement of acceptable "general patterns and relationships (distribution, allocation, and intensity) of all land uses" in the city. The record does not establish that the omission of the Mid-Point Bridge and corridor is inconsistent with FLUE Objective 1. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1, on the one hand, are inconsistent with TCE Objective 6, Policy 6.1, Auction 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand. TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1 will bet referred to as Modified TCE Objective 5. Modified TCE Objective 5 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant tot the binding arbitration described in ICE Goal 2. ICE Goal 2, Objective 2, arc Policy 1.1 set the conditions of such arbitration. With one exception, these conditions are reasonable. The goal to obtain a fair, objective, and binding resolution of the bridge dispute outside of court is salutary. The objective is also reasonable, assuming that the reference to the socioeconomic and environmental, impacts on Ft. Myers and Lee County includes Cape Coral. Policy 1.1 establishes specific conditions. The first calls for an objective, disinterested decision-maker with expertise in land use and transportation planning. The second condition ensures that all parties have a chance to be heard. The fourth condition provides that the standard of proof is the preponderance of the evidence. These conditions are obviously reasonable. The substantive guidelines for the decision-maker are set forth in ICE Policy 1.1(3). The first guideline prohibits the bridge if the land use plans of Cape Coral, Ft. Myers, and Lee County can be implemented so as to reduce the number of river crossings by shifting land use patterns, introducing or expanding transportation management systems, or increasing modal splits. The second guideline prohibits the bridge if existing and committed river crossings will provide an acceptable level of service regardless of operational improvements such as reversible lanes. In general, these conditions are reasonable. The effectiveness of transportation management systems and operational improvements, especially reversible lanes, should be considered as relatively inexpensive alternatives to the construction of a new bridge and corridor. Changing land use patterns presumably requires each local government to address through comprehensive planning any deficiencies that it may suffer in terms of a lack of mixed land uses. The guideline does not specify the extent to which a local government must remediate a lack of mixed uses. For example, it might be effective but prohibitively costly for Cape Coral to solve its mixed land use problems by purchasing and reassembling vacant and developed platted land suitable for commercial or industrial development. The reasonableness of the guideline of changing land use patterns depends upon its interpretation. The third guideline, prohibits the construction of the Mid-Point Bridge if "reasonable" alternatives exist at reduced or equal costs, with equal or superior transportation capacity to serve County-wide transportation needs, and with reduced socioeconomic and environmental impacts on Ft. Myers residents. The factors of reduced or equal costs and equal or superior transportation capacity are reasonable and address regional concerns. The guideline focusing on the socioeconomic and environmental impacts of Ft. Myers' residents exclusively undermines the viability of ICE goal 2 and Ft. Myers' putative "offer" to submit to binding arbitration. Just as it is reasonable for Ft. Myers to concern itself exclusively with the socioeconomic and environmental welfare of itself and its residents, so it is reasonable for Lee County and Cape Coral to concern themselves with the socioeconomic and environmental welfare of themselves and their residents. This guideline is unreasonable and effectively relegates the parties to whatever judicial or political solutions that may be available. Notwithstanding the failure of the offer to arbitrate, Modified Objective 5 is not inconsistent with TCE Objective 6 and its policies and actions. The latter provisions do not preclude the judicial option for this longstanding dispute. TCE Objective 6 is to obtain the cooperation of all governmental entities in the implementation of MPO plan. Except for TCE Policy 6.1, the policy and actions under this objective require merely participation in transportation planning processes. The arbitration process described in Modified TCE Objective 5 does not preclude participation in transportation planning processes; Modified TCE objective 5 merely identifies one approach to resolving disputes not resolved by normal transportation planning processes. Policy 6.1 requires the "coordination" of "major transportation improvements" with other affected governmental entities. The simple resolution of this issue is that the policy requires coordination only of projects that Ft. Myers proposes to undertake, not of projects sponsored by other entities that Ft. Myers proposes to ignore or resist. Even if the omission of a project sponsored by others triggers the coordination requirement of Policy 6.1, Modified TCE Objective 5 is not inconsistent with such a requirement. Coordination does not require the successful achievement of a consensus for each transportation project that each local government or regional entity may propose. "Coordinate" means: To place in the same order, class, or rank. To arrange in the proper relative position. To harmonize in an action or effort. American Heritage Dictionary. In this case, Ft. Myers participated in the normal transportation planning processes. Consensus was reached as to a considerable number of road projects, although the Mid-Point Bridge and corridor are extremely large projects in the County. "Coordinate" does not mean "approve," and Ft. Myers is not required by TCE Policy 6.1 to obtain the approval of all other governmental entities for projects proposed by Ft. Myers or to give its approval for projects proposed by any or even all of the others. The facts of this case do not reveal a series of disputes involving numerous proposed road projects. The three local governments have not had systemwide impasse that defeats their ability to design and implement a coordinated transportation network. Although the Mid-Point project is of considerable magnitude, the Major Thoroughfare Plan--2010 does not prevent the transportation plans of Lee County and Cape Coral from working. The size of a project proposed by a majority of area local governments does not alone compel a lone opponent to capitulate to attain intergovernmental coordination. Neither does the inclusion of the Mid-Point Bridge and corridor in the financially Feasible Plan compel Ft. Myers to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its Plan. The MPO's data and analysis support its adoption of the Mid-Point Bridge and corridor. But the purpose of the MPO is not to restate the positions of its constituent members and, even if they are supported by data and analysis, thereby compel dissenters to conform their plans to the plans of the majority. The MPO has served a valuable purpose in this case by collecting and disseminating important data and providing the parties with a forum in which to exchange their data and analysis; inform and, if necessary, revise their positions; and, if possible, form a consensus. Like Lee County and Cape Coral, Ft. Myers participated in this process in good faith and thereby engaged in intergovernmental coordination. The unreasonableness of requiring local governments invariably to conform their plans to those of the MPO is illustrated by another factor in this case. The Financially Feasible Plan describes a road network that is financially feasible only if existing available revenues are nearly doubled. The present facts do not support a construction of intergovernmental coordination that mandates strict compliance with a Financially Feasible Plan that requires local governments to raise additional revenues. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 1. TCE Objective 1 is to meet the city's transportation needs through a "balanced system" of road, rail, air, boat, bicycle, pedestrian, and public transportation. For the reasons set forth above, the preclusion of the Mid-Point Bridge and corridor does not preclude the attainment of such a balanced system. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3. TCE Objective 2 is to "maintain or provide adequate road capacity to meet present and anticipated future needs." Policy 2.4 is to construct new roadway corridors when existing corridors cannot meet the need. Policy 2.6 is for the city to "pursue acceptable level of service standards for its roadways, and coordinate the standards with Lee County and the Florida Department of Transportation." Standard 2.6.3 acknowledges constraints on capacity improvements for McGregor and the central business district and adopts a peak season, peak hour level of service for these roads of "maintain and improve." The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with these provisions. The evidence shows that traffic would actually increase on city roads with the Mid-Point Bridge. Consistency with Regional Plan Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the TCE, in omitting the Mid-Point Bridge and corridor, is not consistent with the Regional Plan. The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with the Regional Plan considered as a whole. The Plan's treatment of the bridge and corridor is consistent with provisions in the Regional Plan regarding balanced land uses and intergovernmental coordination. Consistency with Other Minimum Criteria For the reasons set forth above, Lee County and Cape Coral have failed to prove by, a preponderance of the evidence that the Plan is not consistent with the criterion of, "to the maximum extent feasible as determined by the local government," analysis compatible with the plans of the Florida Department of Transportation and MPO, as well as the criteria of analysis of projecting levels of service for roads based on the FLUM, the need for new roads, and the adopted level of service standards and plans of the Florida Department of Transportation and MPO. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that TCE Policies 5.1, 5.2, and 5.3, with their implementing actions, in omitting the Mid-Point Bridge and corridor, are not consistent with the criteria of an objective coordinating transportation planning with the metropolitan planning organization and a future traffic circulation map showing the location of arterial and limited access facilities. The issue of coordination has already been addressed. The Major Thoroughfare Plan--2010 is consistent with the latter criterion. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the FLUE or TCE Action 5.2.1 is not consistent with the criterion of discouraging the proliferation of urban sprawl. The strategy of urban containment is not limited to planning for undeveloped or underdeveloped areas. The maintenance of existing mixed-use centers also assists in deterring urban sprawl. By preserving and enhancing close-in residential areas, some of the pressure toward urban sprawl may be alleviated. The omission of the Mid-Point Bridge and corridor may be viewed as part of a reasonable planning strategy designed to promote the mixture of uses presently characterizing the city. For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with the criteria of establishing principles and guidelines to be used in attaining coordination with the plans of adjacent municipalities and the county, ensuring coordination in setting level of service standards for public facilities with any governmental entity with operational or maintenance responsibility for such facility, and resolving conflicts with other local governments through the Regional Planning Council's informal mediation process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order determining that the Ft. Myers plan, as amended, is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. ENTERED this 7 day of January, 1992, 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 7 of January, 1992.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Marion County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioner, William B. Hunt, owns property and resides within the County. Petitioner also submitted written comments to the County during the public hearing held on April 7, 1994, concerning the adoption of an amendment to the County's comprehensive plan. Therefore, he is an affected person within the meaning of the law and has standing to bring this action. The nature of the dispute In July 1991, the County initially transmitted its proposed comprehensive land use plan to the DCA. The DCA issued an Objections, Recommendations, and Comments (ORC) report for the County's plan on October 18, 1991. The County issued a response to the DCA's ORC report and adopted its comprehensive plan in January 1992. In April 1992, the DCA issued a notice of intent to find the comprehensive plan not in compliance. In an attempt to bring the County's plan into compliance, the DCA and County entered into a settlement agreement in March 1993. Pursuant to the agreement, the County was supposed to adopt certain remedial amendments to its comprehensive plan. In August 1993, the County adopted remedial amendments to its comprehensive plan. In October 1993, the DCA issued a notice of intent to find the remedial amendments not in compliance. In another attempt to bring the County's plan into compliance, the DCA and County entered into another settlement agreement in February 1994, and into an addendum thereto in April 1994. Pursuant to this agreement, the County adopted the agreed-upon remedial amendments to its comprehensive plan by Ordinance No. 94-12 on April 7, 1994. On May 30, 1994, the DCA issued a cumulative notice of intent to find the County's comprehensive plan and remedial amendments in compliance. On June 18, 1994, petitioner filed a petition to intervene with the Division of Administrative Hearings seeking to challenge the newly amended plan. After being advised that the petition was filed in the wrong forum, and that he incorrectly sought to intervene rather than to initiate a new proceeding, on December 13, 1994, petitioner filed a petition for an administrative hearing with the DCA. In his lengthy petition, which contains allegations running some fifty-four pages in length, petitioner has challenged the County's plan, as amended, in numerous respects. In his proposed order, however, petitioner has summarized his complaints into the following categories: (a) "many" of the plan objectives are not "specific or measurable," (b) "many" policies in the plan are not "adequate," (c) "many" of the required objectives and policies are not found within a particular element, (d) "many" policies in the plan defer implementation to the land development regulations, or to other kinds of regulations, that are to be adopted after the plan is adopted, (e) "publications" adopted by reference in the plan "have not been adequately cited," (f) "the plan does not control growth," and it "designates an over- allocation of land that can be developed at non-rural densities and intensities," (g) the plan violates the concurrency provision on State Road 200, and (h) the plan fails to include an analysis of projected mass transit level of service and system needs. Is the Plan, as Amended, in Compliance? Generally In attempting to prove the allegations in his petition, petitioner offered only the testimony of a DCA land use planning manager and the County's acting planning director, both of whom concluded that the plan, as amended, was in compliance. Because both witnesses generally refuted all allegations raised in the petition, and they disagreed with the theories advanced by petitioner through his direct examination, the record in this case clearly supports a finding that the plan, as amended, is in compliance. Notwithstanding this state of the record, the undersigned will address in general terms the broad issues raised in the petition, namely, the adequacy of the plan's supporting data and analysis, the adequacy of the goals, objectives and policies, the plan's internal consistency, and the plan's consistency with the state comprehensive plan. In addition, the undersigned will address the more specific objections raised by petitioner in his proposed recommended order. Adequate data and analyses Petitioner has alleged that the County's plan, as amended, is not in compliance because ten elements were not supported by adequate data and analyses, as required by Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Goals, objectives and policies Petitioner further alleged that the County's plan, as amended, is not in compliance because a number of the goals, objectives and policies (GOPs) contained in the various elements were inadequate in that they did not meet some of the requirements for GOPs in Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Internal consistency of plan Petitioner next alleged that the County's plan, as amended, is not in compliance because the internal consistency requirements in Chapter 9J-5, Florida Administrative Code, had not been met. Based on the findings of fact above, however, it is clear that the evidence failed to show to the exclusion of fair debate that the County's plan contained GOPs that were in conflict with each other, thereby rendering the plan internally inconsistent. Consistency with state comprehensive plan Petitioner has also alleged that the County's plan, as amended, is not in compliance because it is not compatible with, and does not further, a number of goals and policies of the State Comprehensive Plan, which are contained in Section 187.201, Florida Statutes. Petitioner failed to present any evidence showing that the County's plan, as amended, is not compatible with, and does not further, the State Comprehensive Plan. Other objections Petitioner has alleged in his proposed recommended order that some of the objectives and policies used by the County do not conform to the definition of those terms in Rule 9J-5.003, Florida Administrative Code. However, the evidence established that those definitions are not mandatory, they merely provide clarification for the local government, and the local government is free to use other definitions in its plan so long as they generally conform with the codified definition. Since the challenged objectives and policies generally conform with the above rule, and they provide the means for their achievement, they are found to be in compliance. Petitioner also alleges that some elements in the plan lack certain policies and objectives required by chapter 9J-5 and thus are deficient. The more persuasive evidence shows, however, that each of the challenged elements was adequate in terms of containing the necessary policies and objectives, and thus the requirements of chapter 9J-5 have been satisfied. Petitioner next alleges that many of the policies in the plan defer implementation to the land development regulations (LDRs) or other regulations that will not be adopted until after this plan becomes effective. Contrary to petitioner's assertion, however, some of the policies do not defer to the LDRs. In cases where they do, the LDRs must still be adopted in accordance with strict time limitations established by Chapter 163, Florida Statutes, and thus the necessary guidance in the plan is not lacking. Petitioner further contends that "publications" adopted by reference in the plan "have not been adequately cited." He specifically refers to policy 1.5 of the Traffic Circulation Element which adopts by reference, and without specific citation to a page number, a manual entitled Institute of Traffic Engineers Trip Generation. Through testimony of witness Manning, however, it was established that it is impractical and unnecessary for the local government to cite specific page numbers of the manual in the plan itself. Indeed, reference to the title of the manual is sufficient. Therefore, those provisions of the plan which incorporate by reference other publications without detailed citations are found to be in compliance. Petitioner has also complained that the plan does not control growth, and it over allocates land to non-rural purposes. In this regard, the County's future allocation of land use was made through the use of a multiplier, which is a planning technique for assessing future land use needs. This technique, and the accompanying calculations, were not shown to be unreasonable or to produce inappropriate results. It was further established that, in making its projections, the County exceeded the requirements of chapter 163. Indeed, in the words of a DCA planner, the County made one of the "most honest assessments of development of any plan in the state." Petitioner next asserts that policy 2.1 of the Traffic Circulation Element allows a 20 percent degradation to the existing level of service for two segments on State Road 200, and thus it "violates the concurrency provision of the act and Rule 9J-5." While the level of service for roads must be consistent with Department of Transportation standards to the maximum extent possible, if it cannot meet them, the local government may show justification for deviation from those standards. In this case, the County presented justification for deviating from those standards by 20 percent on State Road 200 as authorized by Rules 9J-5.0055(1)(d) and 9J-5.007(2)(b), Florida Administrative Code. Therefore, the questioned policy is deemed to be in compliance. Finally, petitioner alleges that the plan fails to include an analysis of projected mass transit level of service and system needs. Admittedly, such an analysis is not found in the plan. However, this is because the County does not operate a public mass transit system. In circumstances such as these, the County is required by chapter 163 to have a mass transit element in its plan, but it is not required to adopt an objective on this subject. Therefore, the absence of such an analysis does not render the plan not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Marion County's comprehensive plan, as amended by Ordinance No. 94-12, is in compliance. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, 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 29th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7071GM Petitioner: 1. Partially accepted in finding of fact 2. 2-3. Partially accepted in finding of fact 1. 4a.-4c. Partially accepted in finding of fact 14. 4d. Partially accepted in finding of fact 15. 4e. Partially accepted in finding of fact 16. 4f. Partially accepted in finding of fact 17. 4g. Partially accepted in finding of fact 18. 5. Partially accepted in finding of fact 19. 6. Partially accepted in finding of fact 20. 7-9. Covered in conclusions of law. Respondents: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 6. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 10. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 13. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: William B. Hunt 3531 S. E. 30th Terrace Ocala, Florida 34471 Gordon B. Johnston, Esquire 601 S. E. 25th Avenue Ocala, Florida 34471-2690 Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida. LARRY J. SARTIN, 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 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
The Issue The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use- 3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.) The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface." On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development," such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable." Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Subject Property West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject property, the remainder of the southern boundary of Creekstone's property faces four single-family homes. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie around a mile away) which is classified as commercial; the remainder is either mixed use or residential. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped. Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2. Petitioner's Objections As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points. At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property. Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2055.1 is not in compliance. DONE AND ENTERED this 19th day of August, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2005.
Findings Of Fact The Department as the State Land Planning Agency is charged with the responsibility of reviewing the Comprehensive Plans submitted by local governments. Following such review conducted pursuant to Chapter 163, Part II, Florida Statutes, the Department is to determine whether the plan submitted is "in compliance" or "not in compliance" with applicable statutes and rules employed in the review process. McIntosh is a local government which adopted its Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The McIntosh Comprehensive Plan was adopted was received by the Department on July 24, 1992. On September 4, 1992, the Department published Notice of Intent to find the Comprehensive Plan "in compliance" with applicable statutes and rules. McIntosh is a town of approximately 450 acres in size, which had a residential population in 1990 of 411 and was projected to increase population by the year 2000 to 418 people. Single family residential and agricultural land uses are the predominant land uses in the community. Petitioner Harris owns property within the incorporated limits of McIntosh. He owns and operates Sportsman Cove, a business located on Orange Lake. Portions of Orange Lake are found within the corporate limits of McIntosh where Harris conducts his business. Harris owns blocks 35 and 36 and portions of blocks 37, 53 and 54 within the corporate limits. His business involves 49 licensed mobile home sites and a number of "RV" sites located on approximately 4.648 acres along the shore of Orange Lake. He also operates a fish camp there. When the Comprehensive Plan was being prepared Harris submitted written and oral comments, objections and recommendations pertaining to the plan. He is a person affected by the adopted Comprehensive Plan. Colwell owns property in the incorporated limits of McIntosh. She owns and operates the McIntosh Fish Camp which has 8 mobile home sites and 5 "RV" sites along the shore line of Orange Lake within the town limits. Colwell submitted written and oral comments, objections and recommendations during the process of review and adoption of the Comprehensive Plan. Colwell is a person affected by the adopted Comprehensive Plan. The fish camp operations and "RV" sites of Harris and Colwell are classified in the Comprehensive Plan as lakefront commercial. The Stott's own property in the incorporated limits of McIntosh. That ownership includes blocks 1, 2, 13, 14 and 15 constituted of 13.6 acres, a portion of which is located on the shore of Orange Lake. In 1986 part of their property was used as a restaurant for about a year. The Stott's engaged in a bait business for approximately a year beyond that point. In the past prior to the plan adoption, there had been a fish camp located at blocks 1 and 15 with cabins and camper sites. These blocks are located adjacent to Orange Lake and are classified lake front residential in the Comprehensive Plan. At the time of hearing the property was not being operated as a fish camp. In the past lots 2, 13 and 14 had been used by the Stott's for unspecified light industry. The Stotts submitted written and oral comments, objections and recommendations during the plan review and adoption process. The Stotts are persons affected by the adoption of the Comprehensive Plan. The notice that was provided on September 4, 1992 concerning the intent to find the Comprehensive Plan "in compliance" made mention that the adopted plan would be available for public inspection Monday through Friday, with the exception of legal holidays. The location contemplated for inspection was the McIntosh Town Hall, Clerk's Office, at 5975 Avenue G, McIntosh, Florida. A problem arose concerning the opportunity to inspect the adopted Comprehensive Plan. The problem was occasioned by an illness to the Town Clerk. This influenced petitioners' ability to review the adopted plan and to timely submit their challenges to the decision to find the Plan in compliance. Under the circumstances a slight delay in conforming to the 21 day requirement for filing the petitions in challenge to the Comprehensive Plan is acceptable. With some inconvenience to Petitioners, persons other than the Town Clerk offered assistance in making the adopted plan available for inspection. Nonetheless, petitioners were afforded sufficient opportunity to apprise themselves concerning the contents of the adopted plan when considered in the context of their participation in the overall process for adopting the McIntosh Comprehensive Plan. The complications experienced in reviewing the adopted Comprehensive Plan did not compromise the ability of these petitioners to advance their claims in a setting in which other procedural requirements for plan adoption, review and approval have been met. The inconvenience experienced by the petitioners in reviewing the adopted plan do not evidence a quality of prejudice that should form the basis for deciding that the plan is not in compliance with applicable statutes and rules. When the Town Council adopted the plan and established Policy 2.1.4.5 it intended to use the word "abandonment" where the written text found within the adopted plan at Page 2-23 uses the word "suspension." This mistake is evidenced by the minutes of the meeting for adoption where a motion was made to change the word "suspension" to "abandonment." In the course of the hearing the attorney for McIntosh stipulated that this was an error and that the written text would be changed to reflect the proper wording. With that change Policy 2.1.4.5 would read: Provisions in the Land Development Regulations shall discourage the continuance of existing inconsistent land uses within designated land uses. These provisions shall limit the expansion of inconsistent land usage and, upon a 90 days abandonment of the incompatible land use, require reversion to designated land uses. Petitioner Harris is not satisfied that the Figure 2-6, Page 2-11, which is a map of the wetlands within the incorporated town limits, in the Comprehensive Plan, is accurate. He claims that a lobe, which is an RV site on his property known as site 9C is not within the wetlands as shown on that map. He also takes issue with the designation in Figure 2-9, page 2-17, of the future land map which shows this lobe of property as conservation/open space. He perceives this property at site 9C to be uplands. By virtue of his own activities in May 1991 in which he arranged to have a survey performed on his property in the incorporated limits of McIntosh, Harris asserts that site 9C was not found to be wetlands then and is not wetlands now. When McIntosh designated the wetlands in the community through the use of the wetlands map and identified conservation/open space in the future land use map it was acting in accordance with legal requirements incumbent upon it in adopting the Comprehensive Plan. The specific designations of wetlands and conservation/open space areas are based upon appropriate data and analysis. The data was taken from a professionally accepted existing source and was the best available data. The work that was done in preparing the wetland mapping requirements was done by the same consulting firm which Harris had employed in May 1991, that is to say Environmental Service and Permitting, Inc. In preparing the wetlands survey for McIntosh the private consulting firm used ground-truthing, as well as a review of wetland mapping data sources to delineate the wetlands. The data consulted included the U.S.D.A. Soil Conservation Service Soil Survey of Marion County, U.S.G.S. Quadrangle maps for the Town of McIntosh, as well as a review of the McIntosh Land Planning Agency Drainage Map. Although Harris takes issue with the clarity of some of the maps depicting the lobe of property for his site 9C, the adopted plan is acceptable as it describes wetlands and conservation/open space to include his site 9C. Objective 7.1.1 at Page 7.4 establishes wetland setbacks within the town where it states: The Town of McIntosh shall protect the natural drainage features within and adjacent to the Town limits, by the establishment of the wetland setbacks, and compliance with State Water Quality standards, to be a part of the Land Development Regulation. In furtherance of this Objective, Policy 7.1.1.1 is set out at page 7- 4 where it states: Setbacks shall be established from the limit of wetlands landward to buildings, septic tanks and land coverage. The following setbacks shall be a part of the Land Development Regulations. Buildings shall be set back at a minimum of 75 feet. Septic tanks and drain fields shall be set back at a minimum of 200 feet. Impervious areas shall be set back at a minimum of 50 feet. Drainage Retention Areas shall be set back 25 feet. These set backs were arrived at by the Town Council having heard from the petitioners. In the face of remarks by the petitioners made in the adoption process the council reduced the set backs. While no specific data and analysis was offered to support the set backs, they are within limits which would be recommended by the Department to protect the wetlands resources. According to the Department, from a planning viewpoint, the mere existence of wetlands is sufficient to promote protections through the use of set backs. The set backs found within this Comprehensive Plan are appropriate. Moreover, the set backs associated with the protections of wetlands have the additional benefit of protecting Orange Lake, a Class III Outstanding Florida Water Body, entitled to special water quality protection. Protection of that water body is the responsibility of McIntosh in its comprehensive planning, together with other local governments and environmental regulators. Future land use classifications in the Comprehensive Plan are set out at Page 2-14. Property which abuts Lake Orange is classified as lake front residential and lake front commercial. Lake front residential is defined as: [T]his category allows a maximum of 2 units per acre. Dwelling units includes: single family houses and mobile homes. Maximum coverage of 35% and maximum building height of 35 feet. Lake front commercial is defined as: this category allows fish camps, marinas, and recreational vehicle parks. Maximum coverage of 50% and a maximum building height of 35 feet." These classifications and densities protect natural resources to include the wetlands and Orange Lake and are appropriate. Petitioners Harris and Colwell may take advantage of the lake front commercial for their fish camp operations and "RV" sites. Stott is not entitled to take advantage of the lake front commercial classification in that her property did not include a fish camp and recreational vehicle operations at the time the plan was adopted. Petitioners have failed to show to the exclusion of fair debate that the adopted Comprehensive Plan is not "in compliance" with applicable statutes and rules concerning the issues raised in the challenges to the determination to find the Comprehensive Plan "in compliance."
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Town of McIntosh Comprehensive Plan to be "in compliance" and dismisses the petitions. DONE and ENTERED this 30th day of March, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1993. APPENDIX The following discussion is given concerning the proposed facts of the parties: Harris' Facts: This paragraph is not relevant in that it was not alleged in the petition. This paragraph in its various parts concerning available low and moderate income housing and the densities is rejected in its suggestion that the Comprehensive Plan is not acceptable. This paragraph is rejected in its suggestion that the seasonal population for dwelling units affiliated with fish camp operations should cause a reconsideration of the classifications and densities for land use. This paragraph is ejected in its legal conclusion. 5-8 These paragraphs are not relevant in that these issues were not set out in the petition. 9, 10 To the extent that paragraphs 9 and 10 describe concerns about the treatment in the Comprehensive Plan of wetlands and comment critically on wetlands protections, the proposed findings of facts are rejected. Colwell's Facts: The unnumbered facts proposed are subordinate to facts found, with the exception that the changes in Orange Lake described even if true do not persuade that the wetlands protection of Orange Lake contemplated by the Comprehensive Plan is inappropriate. Stott's Facts: 1-2 Paragraphs 1 and 2 are subordinate to facts found. 3-5 Constitute legal argument. 6 It is acknowledged that the Orange Lake is used for fishing. 7-11 To the extent that paragraphs 7 through 11 suggest inappropriate identification and protection of the wetlands through the adopted Comprehensive Plan, the proposed facts are rejected. McIntosh's Facts: A-E, A-C, A-E Are subordinate to facts found with exception that the word "increase" in fact should be "decrease" when describing residential density. Department's Facts: 1, 2 Subordinate to facts found. Subordinate to facts found with exception that the reference to the property being within "unincorporated" limits should read "incorporated" limits. - 6 Subordinate to facts found. Subordinate to facts found with exception to the suggestion that the petitioners had to contact city council members to obtain a copy of the adopted plan in the absence of the clerk. - 20 Subordinate to facts found. Not necessary to the resolution of the dispute. - 26 Subordinate to facts found. COPIES FURNISHED: R. Jerry Harris P. O. Box 107 McIntosh, FL 32664 Anna Colwell P. O. Box 135 McIntosh, FL 32664 Thomas C. Stott Marie Stott P. O. Box 551 McIntosh, FL 32664 David Wilcox, Esquire 425 Pleasant Grove Road Inverness, FL 32652 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue By the filing of an application with the Department of Environmental Protection ("DEP" or the "Department"), Florida Power and Light Company ("FP&L") initiated a proceeding for the certification of the siting of its proposed West County Energy Center Power Plant (the "WCEC Project" or the "Project" or the "WCEC") in Palm Beach County. This order follows the "land use hearing1" mandated by Chapter 403, Part II, Florida Statutes, as a step in the consideration of the application. Pursuant to Section 403.508(2), Florida Statutes,2 the sole issue for determination in this order is whether the site proposed for the WCEC Project "is consistent and in compliance with the existing land use plans and zoning ordinances."
Findings Of Fact The Applicant Florida Power & Light Company has provided electric service in Florida since 1926. It presently operates power plants at 14 sites in the state in a service area that covers the eastern coastline and the southern portion of the Florida Peninsula. With 4.3 million customer accounts, FP&L provides electric power to more than 8 million people in the State of Florida. FP&L proposes to construct and operate the WCEC on a site in western Palm Beach County. The Site A 220-acre site (the "Site") located on State Road 80 (also known as Southern Boulevard), "close to a feature known as the 20-mile bend" (tr. 19) on State Road 80, the Site is northwest of the Village of Wellington in the unincorporated area of Palm Beach County, Florida. See FP&L Exs. JG-3 and JG- 4, a map and aerial photograph of the Site. Until recently, the Site has been in agricultural use. Currently comprised of lands that were partially reclaimed and restored following mining of lime rock on the northern portion of the Site, there are no onsite activities or facilities on the Site. The land uses to the west of the Site are agriculture and electrical transmission facilities, to the east, predominately mining, and to the north, mining and transmission facilities. Lands to the east and north have been extensively mined for lime rock. Lands to the east are slated for use by the South Florida Water Management District as water storage ponds. The nearest occupied residence is three-quarters of a mile away from on-site infrastructure. The WCEC Project is compatible with those existing adjacent land uses and sufficiently buffered from the nearby residential area. The WCEC The WCEC will provide an initial 2,200 megawatts ("MW") of electrical generating capacity with an ultimate capacity of 3,300 MW. Initially the WCEC will consist of two 1,100 MW, natural gas-fired, combined-cycle generating units. The units will utilize new combustion turbines (similar to a large jet engine, they produce electricity by direct connection to an electric generator), new heat recovery steam generators ("HRSGs"), and new steam turbine generators. The exhaust heat from the combustion turbines will be routed through the HRSGs to produce steam for the new steam turbine which is attached to another electric generator. Natural gas will be the primary fuel for the new units, with ultra low-sulfur distillate as an alternate fuel. FP&L is considering two different designs for the WCEC Project, based upon the particular combustion turbine to be selected in the fall of 2005. FP&L is also considering two different classes of advanced combustion turbines. A layout using one class of turbines, rated at around 180 MW each, would result in four combustion turbines and HRSG and one steam turbine per unit, or a “four-on-one” configuration. A second layout for the other class of turbines, rated at around 230 MW each, would include only three combustion turbines and heat recovery steam generators per unit and a single steam turbine, for a “three-on-one” configuration. Either configuration would be consistent with the local land use approvals for the Site. Facilities for construction and operation of the new units will be located within the Site. The first two units will be located at the northern end. The third future unit will be located to the south of the first two units. Other onsite facilities will include cooling towers, fuel oil storage tanks, stormwater ponds, administration and maintenance facilities and parking areas. Natural gas will be supplied to the Project by an interstate natural gas pipeline, whose owner will be responsible for licensing and constructing the supply pipeline to the Site. Connection to the Transmission Network The Project will interconnect with FP&L’s existing electrical transmission network at the existing FP&L Corbett system substation, which is located adjacent to the north edge of the project Site. No new offsite transmission lines are required for the proposed 2,200 MW Project. The County's Comprehensive Plan, Zoning Ordinances and Zoning Approvals Palm Beach County has adopted a Comprehensive Plan to meet the requirements of the Local Governmental Comprehensive Planning and Land Development Regulation Act. Palm Beach County has also adopted local zoning ordinances and zoning approvals that apply to the project Site. The Palm Beach County Commission has issued site- specific zoning approvals for the project Site. They approved the Site’s use for electrical generating capacity, and determined that the Site is consistent with the Palm Beach County Comprehensive Plan and the Palm Beach County Unified Land Development Code, which contains the County’s zoning ordinances and regulations. Board of County Commissioner's Action, Resolution 2004-0401 On March 29, 2004, the Palm Beach County Board of County Commissioners adopted its Resolution 2004-0401, approving an amendment to an existing County-issued development order. The amendment approved the use of the project Site for an electrical generating plant using 12 combustion turbines and the use of low sulfur distillate as a backup fuel. The 2004 Resolution determined that the development order amendment approving the Project was consistent with the Palm Beach County Comprehensive Plan. Under that Plan, the Site was designated RR10 on the County’s Future Land Use Map, which remains the future land use designation for the Site. Electrical power plants were an allowed use in this land use category at the time the County Commission first adopted its resolution approving the use of the project Site for electrical power plants. The County Commission also determined the 2004 development order amendment for the Site was consistent with the County’s Unified Land Development Code, which contains the County’s zoning regulations. Under that Code, the Site was and remains zoned as Specialized Agriculture ("SA"). Electrical power plants were allowed as Class A conditional uses at the time the County Commission adopted its resolution approving the site for use by electrical generation facilities. The SA zoning district has been deleted by Palm Beach County but lands in the SA zoning district in this area of Palm Beach County are now deemed to be in the Agricultural Production ("AP") zoning district. Electrical power plants remain a conditional use in the AP zoning district. Palm Beach County Resolution 2004-0401 amended an existing Palm Beach County development order that constitutes a Class A conditional use approval of the Site for use by electrical generating facilities. The Palm Beach County Commission has also issued two other Class A conditional use approvals for electrical generating facilities on the Site. The WCEC Project as proposed by FP&L and the Site with an ultimate capacity of 3300 MW will comply with the Palm Beach County zoning ordinances and with the amended development order issued by the Palm Beach County Commission for the Site. Notice Notice of the land use and zoning hearing was published by FP&L in The Palm Beach Post on June 16, 2005. Notice of the land use hearing was also published by DEP on its Official Notices website on June 17, 2005, pursuant to Chapter 2003-145, Laws of Florida. (FP&L Ex. 1)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Siting Board find that Florida Power and Light Company's West County Energy Center Project, as described by the evidence presented at the hearing, and its Site at an ultimate capacity of 3,300 MW are consistent and in compliance with existing land use plans and zoning ordinances and site-specific zoning approvals of Palm Beach County as they apply to the Site, pursuant to Section 403.508(2), Florida Statutes. DONE AND ENTERED this 2nd day of September 2005, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2005.
Findings Of Fact No changes have been made in the land use plans applicable to the proposed site for Unit No. 3, Power plant No. 3, since the initial public hearing held on November 8, 1974. By Ordinance No. 1914, the City Commission of the City of Lakeland, Florida, has classified and zoned the proposed site for Unit No. 3, Power Plant No. 3; as "Industrial," which classification and zoning allows an electrical power generating facility.
