Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit aA.
The Issue The issue in this case is whether Plan Amendments 07-L08 and 07-L39, adopted by Marion County Ordinance 07-31, are "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Intervenors are the owners and developers of 359.30 acres of land south of Ocala in Marion County north of County Road (CR) 484, between Interstate Highway 75 (I-75) and the City of Belleview (the Golden Oaks site). They also own land in Marion County in the Ocala Ranchettes subdivision, which is in the extreme northeast corner of Marion County. On November 20, 2007, the Marion County Board of County Commissioners adopted Comprehensive Plan Amendments 07-L08 and 07-L39. Plan Amendment 07-L08 changes the Future Land Use Map (FLUM) designation for the Golden Oaks site from Rural Land to Medium Density Residential, which has an open space requirement of at least 350 square feet per residential unit. Plan Amendment 07-L39 is a text amendment to the Future Land Use Element (FLUE) limiting development on the Golden Oaks site to a maximum of 523 single-family residential units. Mr. and Mrs. Babcock own land and reside in Marion County near the 359.30 acres subject to the FLUM change. No evidence was presented during the hearing as to whether the other Petitioners own land or reside in Marion County. However, Respondents and Intervenors stipulated in their Joint PRO that all Petitioners are "affected," as defined in Section 163.3184(1)(a), Florida Statutes. Petitioners and Intervenors submitted oral or written comments on the Plan Amendments between the transmittal hearing and adoption of the Plan Amendments. Petitioners contend that, as a result of the Plan Amendments, the Marion County Comprehensive Plan fails to discourage urban sprawl, as required by Rule 9J-5.006(3)(b)8. 6. Rule 9J-5.003(134) states: "Urban sprawl" means urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: Leapfrog or scattered development; ribbon or strip commercial or other development; or large expanses of predominantly low- intensity, low-density, or single-use development. Whether a comprehensive plan or plan amendment fails to discourage urban sprawl is determined by Rule 9J-5.006(5), which includes a complicated method for evaluating 13 primary indicators of urban sprawl. The first primary indicator is a plan or plan amendment that: "Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low- intensity, low-density, or single-use development or uses in excess of demonstrated need." The Plan Amendments are not "in excess of demonstrated need" when considered on a county-wide basis because Intervenors and the County entered into a binding Developer's Agreement not to develop 475 lots in the Ocala Ranchettes subdivision (leaving just five vested lots in the subdivision).3 However, the 523 maximum allowable residential units under the Plan Amendments exceed demonstrated need in the County's Planning District 14, where Golden Oaks is located.4 The second primary indicator is a plan or plan amendment that: "Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Golden Oaks is in an area that is in transition. It is approximately three miles east of I-75 and approximately three miles southwest of Belleview (approximately four road miles along CR 484). It is approximately a half-mile west of the western edge of the Urban Reserve area that extends southwest from Belleview. Much of the land surrounding Golden Oaks is rural in character. The Golden Oaks site has a flag-like shape. It is narrow where it fronts on the north side of CR 484 (the "flagpole") and widens at a distance to the north of CR 484 (the "flag"). Much frontage along CR 484 is now in commercial/business use (including frontage immediately east of the "flagpole" of the Golden Oaks site and south of the "flag" part of Golden Oaks) or designated for future commercial or mixed use (including the Goolsby mixed-use development and a rural activity center, which are on CR 484 approximately two miles east and west of Golden Oaks, respectively). Several tracts in the CR 484 corridor between I-75 and Belleview are developed with residential densities as high as or higher than the densities designated for Golden Oaks by the Plan Amendments. One of these is a sprawling, non-conforming, but vested subdivision approximately a half-mile east of Golden Oaks called Belleview Heights. CR 484 is being four-laned between I-75 and the City of Belleview. Additional sewer and water capacity is being placed in the CR 484 corridor, which is transitioning into a more urban area. A new county library is being built along CR 484 approximately two miles east of Golden Oaks in the Goolsby mixed- use development. The evidence was that there is some land closer to existing urban areas than Golden Oaks that is available and suitable for development, but it was not clear from the evidence how much. There also are areas of urban infill that could be developed or redeveloped, but it was not clear from the evidence how much is available or if any would be suitable for large-scale development. The third primary indicator is a plan or plan amendment that: "Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments." The Plan Amendments are part of an emerging pattern of development in the CR 484 corridor. The fourth primary indicator is a plan or plan amendment that: "As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems." Much of Golden Oaks was part of the larger Belleview Forest that has been clear-cut. There are at least two hydrated air-filled caves on the Golden Oaks site--the Belleview Formation Cave and the Loquat Cave. It has not been conclusively determined that there are no other similar caves on the site. The two known caves are worthy of preservation for scientific and other reasons. If preserved, they would have to be buffered from development by setbacks, and surface water would have to be managed to prevent contaminants from entering the caves, which likely are connected to the underlying aquifer. Care would have to be taken to strike a balance so that surface water management activities both protect water quality and do not lower the water table enough to de- hydrate the caves. The evidence was that these objectives can be accomplished under the Marion County Comprehensive Plan, which requires springs protection. The Ocala Ranchettes subdivision is in an environmentally sensitive area of wet prairie. The environmental benefits of the Developer's Agreement offset any environmental detriment from the Plan Amendments. The fifth primary indicator is a plan or plan amendment that: "Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils." With the 523-unit maximum, it should be possible to develop Golden Oaks and adequately protect adjacent agricultural areas (mainly, horse farms and pastures) through buffers and limited road access to CR 484 (versus access through the rural areas to the immediate west, north, and east). One concern of Petitioners is the eventual conversion of more rural land to urban uses, which would be the subject of future land use decisions. The sixth primary indicator is a plan or plan amendment that: "Fails to maximize use of existing public facilities and services." The seventh is the same but for future public facilities and services. The eighth primary indicator is similar--a plan or plan amendment that: "Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government." Golden Oaks is several miles from most public facilities and services. However, closer public facilities and services are planned or being built (for example, the four-laning of CR 484, sewer force mains and lines, water lines, and schools). Because the Plan Amendments limit density at Golden Oaks, they do not maximize the use of public facilities and services. Excess capacity is planned and being added for future development in the CR 484 corridor in addition to Golden Oaks. The ninth primary indicator is a plan or plan amendment that: "Fails to provide a clear separation between rural and urban uses." Since the CR 484 corridor is in transition, urban uses are being introduced into what was a rural area. During the transition, there is not going to be a clear separation between rural and urban uses. The tenth primary indicator is a plan or plan amendment that: "Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities." Because they allow development that is not infill or redevelopment, the Plan Amendments discourage or inhibit infill or redevelopment to a limited extent. The eleventh primary indicator is a plan or plan amendment that: "Fails to encourage an attractive and functional mix of uses." The Plan Amendments themselves provide for residential use only. It was not proven that they will fail to encourage an attractive and functional mix of uses. Limiting access to Golden Oaks to CR 484 (versus access through the rural areas to the immediate west, north, and east) or through the existing commercial areas fronting CR 484 to the immediate south of Golden Oaks (east of the "flagpole" and south of the "flag" part of the site) could help encourage an attractive and functional mix of uses. The twelfth primary indicator is a plan or plan amendment that: "Results in poor accessibility among linked or related land uses." Golden Oaks is several miles from most existing linked or related land uses. As development proceeds in the emerging pattern along the CR 484 corridor, more linked or related land uses will be closer. The thirteenth primary indicator is a plan or plan amendment that: "Results in the loss of significant amounts of functional open space." To the extent that the Plan Amendments result in a loss of functional open space, the loss is countered by the Developer's Agreement on the Ocala Ranchettes subdivision. Considering the extent, amount and frequency of the indicators of urban sprawl, and the presence and potential effects of multiple indicators, it is fairly debatable whether the indicators of urban sprawl collectively reflect a failure of the Plan Amendments, and the Marion County Comprehensive Plan as a whole, to discourage urban sprawl. See Fla. Admin. Code R. 9J- 5.006(5)(d) and (h).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 19th day of November, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2009.
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 The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011.
The Issue The issues to be determined in this case are whether a development order approved by Lake County is consistent with the Lake County Comprehensive Plan, the Lake County land development regulations, and the Principles for Guiding Development in the Green Swamp Area of Critical State Concern.
Findings Of Fact The Parties Petitioner DEO is the state land planning agency with the authority and responsibility to review development orders issued in Areas of Critical State Concern. Respondent Lake County is a political subdivision of the State with jurisdiction over the affected property. Respondent Rubin Groves is a Florida limited liability company doing business in Lake County. Rubin Groves is the owner of the approximate 131 acres in Lake County (“the Property”) on which development was approved by the Ordinance. Background The Property is located within the Green Swamp Area of Critical State Concern and more particularly within the Lake Wales Ridge. The Property’s future land use designation under the Lake County Comprehensive Plan is Green Swamp Ridge. The topography of the Property is generally a hill, bounded by U.S Highway 27 to the east, a wetland to the west, and properties approved for mixed-use residential uses to the north. Existing elevations are approximately 130 feet NGVD at the wetland on the western boundary of the Property, 140 feet NGVD on eastern boundary at U.S. 27, with the top of the hill in the center portion of the property at an elevation of about 180 feet NGVD. In June 2010, Rubin Groves filed a pre-submittal application with Lake County that proposed a borrow pit (mining) operation for the Property. The County informed Rubin Groves that mining was prohibited in the Green Swamp Ridge and Rubin Groves took no further action on the pre-submittal application. In February 2013, Lake County approved Rubin Groves’ application to rezone the Property. Ordinance No. 2013-8 rezoned the Property from Agricultural to Planned Unit Development (“PUD”), allowing a mixed-use development of 490 single-family residential units and 24.54 acres of commercial uses. Less than a year later, Rubin Groves applied to amend the PUD to allow “mass grading” of the Property to make it relatively level to accommodate a residential development for the elderly and disabled (mobility-impaired). The Mass Grading Plan calls for removing 2.4 to 3.0 million cubic yards of sand from the Property. The average cut or change in elevation would be 11 to 12 feet. The deepest cut, near the center of the Property, would be about 30 feet. The contractor that Rubin Groves would hire to extract and remove the sand from the Property would sell the sand and the income would be applied to offset the costs charged to Rubin Groves for the work. The Lake County Community Design staff recommended denial of the application based upon the following: (1) the activities proposed in the Mass Grading Plan constitute mining; (2) mining is prohibited in the Green Swamp Ridge future land use category in the Lake County Comprehensive Plan (“Comp Plan”); (3) the Mass Grading would result in the property's elevation being lowered more than the 10-foot limit in the Lake County Code; (4) the applicant failed to demonstrate that the Mass Grading Plan was necessary to develop the site; and (5) the Mass Grading Plan did not comply with the Green Swamp Principles for Guiding Development, sections (1), (2) (7) and (10). On January 28, 2014, the Board of County Commissioners of Lake County approved the rezoning application, including the Mass Grading Plan, through the adoption of Ordinance No. 2014-7. Whether Sand Mining is Allowed in the Green Swamp Ridge In the previous version of the Comp Plan, mining was expressly prohibited in the Green Swamp Ridge future land use category. In the current Comp Plan, there are four future land use categories established within the Green Swamp: Green Swamp Ridge, Green Swamp Rural, Green Swamp Rural/Conservation, and Green Swamp Core/Conservation. For each category, the Comp Plan lists “Typical Uses” and “Typical Uses Requiring a Conditional Use Permit.” Mining is not listed as a typical use in any category, and it is not similar to any listed typical use. In all categories except Green Swamp Ridge, sand mining is listed as a typical use requiring a conditional use permit. The format of these Comp Plan provisions, together with the fact that sand mining was expressly prohibited in the previous version of the Comp Plan, plainly indicates that sand mining is not an allowed use in the Green Swamp Ridge future land use category. Whether the Proposed Mass Grading is Mining The Comp Plan defines “Mining Activities” as: The mining of materials, ore or other naturally occurring materials from the earth by whatever method, including the removal of overburden for the purpose of extracting and removing from the site such underlying deposits and all associated clearing, grading, construction, processing, transportation and reclamation on the property, and includes the term pre-mining activities and lake creation but shall not be deemed to include activities associated with site surveying, environmental monitoring, mineral exploration or the sinking or operation of test wells and similar activities. Section 6.06.01(F) of the Lake County Code creates eight exemptions to the requirement to obtain a mining conditional use permit and they are activities not commonly considered to be mining. For example, excavating and removing dirt to install a swimming pool does not require a mining conditional use permit. Excavating and removing dirt to install a swimming pool is not commonly considered to be a mining activity. The broad definition in the Comp Plan could allow for absurd applications, contrary to its ordinary meaning, if the term was interpreted to mean the removal of any amount of material from the ground for any purpose. The definition of “mining activities” must be read in conjunction with section 6.06.01(F) of the Lake County Code and the latter, along with common sense, provide guidance for what is mining. It is not mining to excavate soil to install a swimming pool because mining is commonly understood to involve more than the excavation of a small amount of material in a small amount of time. Mining is commonly understood to be an ongoing business of extracting and selling a large volume of material. One of the exemptions from the requirement to obtain a mining conditional use permit is excavation associated with construction activities: Excavation in conjunction with bona fide commercial, industrial or Subdivision Construction provided a Construction approval or Building Permit has been obtained from the County and Excavation is completed and Construction initiated within a reasonable period of time from the date that Excavation is initiated. Said time period shall be determined by the County based upon the type of Construction and shall be indicated on the written exemption document. Excess Overburden generated as a result of the bona fide Construction may be Removed offsite only as follows: Excess overburden generated as a result of the bona fide Construction may be removed offsite so long as the County Manager or designee is provided written notice during Construction approval or Building Permit application process and so long as the total amount of material removed offsite is not greater than two hundred (200) percent of the minimum stormwater retention/detention volume required. If the [200 percent limit] is exceeded or excavation is not storm water related, the County Manager or designee may give approval for removal of such excess Overburden if the applicant shows that removal of such excess Overburden is necessary for development of the Site due to physical factors of the Land or Permitting requirements from a governmental agency. In making this decision, the County Manager or designee shall consider the following factors: Unique physical characteristics and topography of the Land involved; Engineering and environmental factors requiring overburden removal; Whether excavation and removal of Overburden is necessary for access to the property; Permitting requirements of state, local and federal governmental agencies; or Such other matters that may be deemed appropriate by the County Manager or designee. Rubin Groves proposes to remove much more than 200 percent of the volume needed for stormwater retention/detention. Rubin Grove says it intends to seek the approval of the County Manager for exemption from the requirement to obtain a mining conditional use permit. However, as noted above, Ordinance 2014-7 approves the Mass Grading Plan and, therefore, already authorizes Rubin Groves to exceed the 200 percent criterion. Rubin Groves believes it qualifies for the exemption for excavation associated with construction because of its need to level the Property to make the subdivision suitable for mobility-impaired residents. However, that explanation falls short of demonstrating necessity because it does not explain why the Property could not be leveled by moving sand from higher areas of the Property to lower areas. Rubin Groves did not explain why so much sand has to be removed from the Property, but there is some evidence indicating the reason is to allow the residential development to be constructed upon the deeper soils that are denser and more stable. The exemption for bona fide construction activities, like the other activities exempted in Section 6.06.01(F) is not intended to allow mining. The Mass Grading Plan is sand mining because it involves activities that are indistinguishable from the business of sand mining. The estimated volume of sand to be removed, 2.4 to 3.0 million cubic yards, equates to 133,333 to 166,666 truckloads of sand. One of Rubin Groves’ experts stated that, if there was a road construction project which needed the sand, Rubin Groves might be able to extract and haul away the sand in nine or ten months. However, even at the lower figure of 133,333 truckloads, removal in 10 months would amount to about 444 truckloads per day with no days off; an ambitious pace. It is more reasonable to believe removal of the sand would take over a year to complete, perhaps much longer if there are no suitable road projects. A year-long or longer operation of extracting and hauling away sand in 133,333 to 166,666 truckloads, and selling it for roadbuilding and other construction projects, is indistinguishable from the business of sand mining. It conforms with the common meaning of “mining.” Rubin Groves argues that it does not matter how much sand it wants to remove (even “a zillion” cubic yards) because Rubin Groves’ purpose is not sand mining. According to that view, even if sand removal at the Rubin Groves site would (otherwise) amount to the largest sand mine in Florida, it could not be regulated as mining because Rubin Groves’ purpose is to build a residential subdivision afterward. However, the Mass Grading Plan is indistinguishable from sand mining by a landowner who has no plans to develop a residential subdivision afterward. The reason there are special regulations in the Comp Plan and Lake County Code (and elsewhere) for mining activities is to address the impacts associated with mining. The regulations are not concerned with the land use ambitions of landowners or with the profitability of their enterprises. Rubin Groves’ interpretation of the Lake County Code is inconsistent with the plain intent of the Comp Plan and Lake County Code because its interpretation would allow mining impacts, but not make them subject to the mining prohibitions and regulations that were adopted to address mining impacts. Rubin Groves’ argument about purpose is unpersuasive. Rubin Groves’ purpose is to mine sand and then build a subdivision. Rubin Groves’ argument that the Mass Grading Plan would not be regulated as mining by the Department of Environmental Protection (“DEP”) under Florida Administrative Code Rule 62C-39 is also unpersuasive. First, whether the Mass Grading Plan is subject to state regulation has not been determined by DEP. The term “extraction” is defined in rule 62C-39.002(7) to exclude excavation “solely” in aid of on-site construction, but that begs the question whether DEP would view the Mass Grading Plan as solely for on-site construction. Second, rule 62C-39 contains state reclamation standards and implements chapter 378, Florida Statutes, entitled “Land Reclamation.” Under DEP’s reclamation regulatory program, there is no obvious state reclamation issue associated with sand mining on lands approved for construction activities. That does not foreclose a local interest in regulating the land use impacts of mining activities. The Exemption Procedure Pursuant to section 6.06.01(F) of the Lake County Code, approval to remove overburden that exceeds 200 percent of the volume required for stormwater retention must be obtained from the County Manager. However, the County Manager did not approve Rubin Groves’ Mass Grading Plan. It was approved by the Board of County Commissioners in Ordinance 2014-7. Rubin Groves argues that it qualifies for an exemption under Section 6.06.01(F), but the Board of County Commissioners approved the Mass grading Plan without making any finding that the Mass Grading Plan was not mining or that it qualified for exemption from the requirement to obtain a mining conditional use permit. Lake County’s approval of the Mass Grading Plan is inconsistent with Section 6.06.01 of the Lake County Code. Ten Percent Lot Grading Limitation The Mass Grading Plan would change the elevation of the Property more than 10 feet. Section 9.07.00 of the Lake County Code addresses lot grading and prohibits elevation changes that exceed 10 feet. The parties disputed whether this section applies to the Property. DEO contends it applies; Rubin Groves disagrees. Section 9.07.00 states that it applies to “development that is wholly within or partially within any flood hazard area.” The Mass Grading Plan is not within a flood hazard area. The Lake County Engineer testified that the County does not interpret Section 9.07.14 as applicable to subdivision grading, but only to the grading of individual residential lots. The preponderance of the evidence shows Section 9.07.00 is not applicable to the Mass Grading Plan. Principles for Guiding Development The Green Swamp is one of the most significant sources for water recharge to the Floridan Aquifer. It is centered along the potentiometric high for the aquifer as well. The potentiometric high is the level to which water would rise in an open well and affects ground water flow because water flows from high-pressure areas to low-pressure areas. The Principles for Guiding Development in the Green Swamp Area of Critical State Concern adopted by the Administration Commission are set forth in Florida Administrative Code Rule 28-26.003. The Principles have also been adopted into the Lake County Comp Plan. Rule 28-26.003(1) sets forth the objectives to be achieved for the Green Swamp: Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. Protect the functions of the Green Swamp Potentiometric High of the Floridan Aquifer. Protect the normal supply of ground and surface water. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water-retention capabilities of wetlands. Protect the biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Protect the design capacity of flood- detention areas and the water-management objectives of these areas through the maintenance of hydrologic characteristics of drainage basins. DEO contends the Mass Grading Plan would violate the Principles for Guiding Development for the Green Swamp Area of Critical State Concern in rule 28-26.003(1)(a),(b), (c), (e), (g), (j), and (k). DEO objects to so much of the vadose zone being removed from the Property. The vadose zone is the layer of material between the land surface and the top of the water table. The vadose zone acts as a filter to remove contaminants as water moves through it. It stores water, creating a buffer for water recharge into the aquifer below it and regulates the rate at which water recharges. It also affects evapotranspiration and runoff. DEO contends the Mass Grading Plan would reduce storage capacity and filtration, cause “surges” of groundwater which would adversely affect the surrounding wetlands, reduce recharge and change the potentiometric high, adversely affect the water retention capabilities of wetlands, and alter the natural flow regime of drainage basins. The evidence presented by DEO was insufficient to prove that the storage capacity of the Property would be reduced by the Mass Grading Plan. In a scenario where the water table is near the ground surface, removal of soil can substantially reduce water storage, but DEO’s theory for loss of storage was not persuasively demonstrated in this situation where the vadose zone would still be about 24 feet deep after the Mass grading Plan. DEO’s evidence regarding the possibility of karst features on the Property was not compelling because it was not shown that the Mass Grading Plan would affect current water movement associated with any karst features. The proper placement of stormwater facilities to avoid karst features is a matter for stormwater permitting. The preponderance of the record evidence supports DEO’s claim that the filtration capacity of the Property would be reduced by the Mass Grading Plan. However, DEO did not rebut Rubin Groves’ evidence that nutrient loading to groundwater from the Property would decrease. DEO did not show that the reduction of filtration capacity would result in a measurable adverse impact to groundwater. The evidence presented by DEO was insufficient to prove that the Mass Grading Plan would cause “pulse” flow to the nearby wetlands. The Mass Grading Plan does not involve soil removal within four or five hundred feet of the wetlands. In a scenario where the water table is near the ground surface, removal of soil can affect water storage and the slow release of water to wetlands, but DEO’s theory for pulse flow was not persuasively demonstrated in this situation where the vadose zone would still be about 24 feet deep after the Mass Grading Plan. The evidence presented by DEO was insufficient to prove that the Mass Grading Plan would reduce recharge to the Floridan Aquifer. In summary, DEO did not prove that the Mass Grading Plan would have a measurable or more than de minimis adverse impact on the Floridan Aquifer and associated water resources which the Principles for Guiding Development are intended to protect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a final order determining that Ordinance 2014-7 is invalid because it is inconsistent with the Lake County Comprehensive Plan and land development regulations. DONE AND ENTERED this 21st day of August, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2015. COPIES FURNISHED: Jimmy D. Crawford, Esquire Merideth Nagel, P.A. 1201 West Highway 50 Clermont, Florida 34711 (eServed) Sanford A. Minkoff, Esquire Lake County Attorney`s Office 315 West Main Street, Suite 335 Post Office Box 7800 Tavares, Florida 32778-7800 Keith Austin, Esquire Rubin Groves of Clermont, LLC 223 Peruvian Avenue Palm Beach, Florida 33480 Barbara R. Leighty, Agency Clerk Transportation and Economic Development Policy Unit Room 1801, The Capitol Tallahassee, Florida 32399-0001 (eServed) Aaron Charles Dunlap, Esquire Department of Economic Opportunity Caldwell Building, MSC110 107 East Madison Street Tallahassee, Florida 32399 (eServed) Erin Hartigan, Esquire Office of the Lake County Attorney 315 West Main Street Tavares, Florida 32778 (eServed) Harry Thomas Hackney, Esquire Campione & Hackney, P.A. 2750 Dora Avenue Tavares, Florida 32778 (eServed) Cynthia Kelly, Secretary Florida Land and Water Adjudicatory Commission Room 1801, The Capitol Tallahassee, Florida 32399-0001 John P. “Jack” Heekin, General Counsel Office of the Governor Room 209, The Capitol Tallahassee, Florida 32399-0001 (eServed) James W. Poppell, General Counsel Department of Economic Opportunity 107 East Madison Street Caldwell Building, MSC110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent, while serving as an appointed member of the Ocoee Planning and Zoning Commission, violated section 112.313(7)(a), Florida Statutes (2015)1/ by having a contractual relationship that conflicted with his official responsibilities; and, if so, the appropriate penalty.
Findings Of Fact At all times material to the complaint, Respondent served as an appointed member of the Ocoee P & Z Commission. Respondent is subject to the requirements of part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure on the P & Z Commission. As a member of the P & Z Commission, Respondent is subject to the “Ocoee Florida Land Development Code, Section 3, Planning and Zoning Commission [Land Development Code].” Section 3-2 of Land Development Code provides in part as follows: Establishment and Membership The Planning and Zoning Commission shall consist of nine (9) members appointed by the City Commission and one member appointed by the School Board of Orange County as a non- voting member. The member appointed by the School Board of Orange County shall attend those meetings at which the Planning and Zoning Commission considers comprehensive plan amendments and rezonings that would, if approved, increase residential density on the property that is the subject of the application. No member shall be an employee of the City of Ocoee and all members, except the member appointed by the School Board of Orange County, shall be residents of the City of Ocoee. When selecting members to the Planning and Zoning Commission, the City Commission shall attempt to select persons from different geographical areas within the City so as to create geographical diversity and representation. * * * E. Compliance with Laws The Planning and Zoning Commission, and its individual members, shall comply with all applicable laws relative to public bodies, including disclosure of interests and procedure[s] for refraining from participation [when] a conflict of interest exists. * * * G. Duties and Responsibilities To act as the Local Planning Agency (LPA) of the City of Ocoee, pursuant to Section 163.3174, Florida Statutes, and to prepare on its own initiative recommendations for amendments to the Comprehensive Plan of the City of Ocoee, including text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to the Comprehensive Plan. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To prepare on its own initiative recommendations for amendments to this Code, text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to this Code, including applications for annexation or change of zoning. Pursuant to Section 163.3174(4)(c), Florida Statutes, the Planning and Zoning Commission shall also have the responsibility to review and make a finding as to the consistency of the proposed land development regulation with the adopted Comprehensive Plan and to report such finding to the City Commission. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for various development approvals or permits as provided within this Code, including, but not limited to Planned Unit Developments (PUD), special exceptions, subdivisions, and any other application for which the City Commission requests a report and/or recommendation. Where a public hearing is required by the applicable procedural section, no such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To act in an advisory capacity to the City Commission on land use and land development issues and to make such studies and to conduct such investigations as may be requested from time to time by the City Commission. To review zoning of newly annexed lands when it represents an increase in intensity of use or a conflict with the Comprehensive Plan pursuant to requirements of State law and City ordinance. In addition to serving on the P & Z Commission, Respondent buys and sells commercial real estate. Respondent is a manager and shareholder in W.O.R.Y. INVESTORS, LLC (WORY), an entity that is also in the business of buying and selling commercial real estate. Respondent, in his individual capacity, owned approximately four acres, which abutted six acres owned by WORY. Both properties have an address on West Road in Ocoee, Florida, and will be referred to collectively herein as the “West Road property.” The Contract On or about November 11, 2015, Respondent, in his individual capacity, and as manager for WORY, executed an “Agreement of Sale” wherein the West Road property was to be purchased by Charter Schools Development Group, LLC (buyer), for $1,890,540. According to the Agreement of Sale, the buyer wanted to “develop and construct on the Property a K-8 public charter school.” The Agreement of Sale contained a number of contingencies, referred to in the contract as “Buyer Required Approvals,” that Respondent was required to satisfy prior to finalization of the sale of the West Road property. Paragraph six of the Agreement to Sale sets forth a number of the pre-sale contingencies imposed on Respondent, and the same provides as follows: 6. Development The Buyer intends to develop and construct on the Property a K-8 public charter school and adjacent commercial development acceptable to Buyer consisting of buildings and other improvements including, but not limited to recreation fields, related landscaping, open space, storm water, and appropriate parking (the "Project"). Buyer's obligation to complete the purchase of the Property from Seller in accordance with the terms of this Agreement is contingent upon the satisfaction of each of the following conditions with regard to the Property (each of which may be waived in whole or in part in writing by Buyer): Buyer has obtained final, unappealed and unappealable approvals from all necessary governmental authorities (including governmental agencies), for zoning, utilities and any other approvals (including necessary parking requirements) Buyer deems necessary, in its sole discretion, permitting the construction and use of the improvements comprising the Project, including but not limited to any required special exception. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) so that the Property shall have immediate and adequate access to water, sewer and all other utilities in accordance with the final approved site development plan. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) for storm water management; including easements and agreements for constructing and maintaining storm water basins; all wetlands studies and approvals in such form that wetlands, if any, shall not preclude construction of roads, utilities, storm water management facilities, any other required improvements for erection of buildings on the Property. Buyer has obtained all permits and approvals, and all conditions thereof shall have been satisfied, so as to allow for recording of the final plan and issuance of building permits subject only to satisfaction of the following requirements by Buyer at or after Closing (i) submission of construction drawings in accordance with applicable law, (ii) execution by the Buyer of the necessary development agreements, (iii) execution and funding by Buyer of the necessary escrow agreements for municipal improvements, and sewer and water improvements, and (iv) payment by the Buyer of all municipal fees and charges associated therewith. Subject to Seller's obligation set forth in Section 6(f) below, Buyer has obtained any and all other easements, approvals and/or permits that may be necessary to construct and use the improvements comprising the Project. Buyer shall obtain, at no additional cost to Seller, all easements and roads that in Buyer's sole reasonable discretion are necessary for property access, utilities and signage to the Property in accordance with Buyer's final approved site development plan. The items referred to in subsections 6(a) through 6(f) hereof shall hereafter be referred to as the "Buyer Required Approvals." After the end of the Inspection Period, Buyer shall diligently proceed with the filing of all applications necessary for obtaining the Buyer Required Approvals. Seller agrees, at no expense to Seller, to cooperate with buyer in connection with the Buyer Required Approvals to the extent of signing all applications necessary for obtaining the buyer Required Approvals and appearing and testifying at the various hearings. Seller's cooperation as aforesaid shall not entitle Seller to any additional compensation. All permit fees, studies, deposit and investigation costs incurred in connection with the Buyer Required Approvals shall be the sole responsibility of buyer and buyer agrees to affirmatively use its good faith efforts to obtain all of the Buyer Required Approvals without delay and as expeditiously as reasonably possible. Seller hereby grants to Buyer a power of attorney to file, on Seller's behalf, all applications related to the Buyer Required Approvals; provided, however, that the Land shall not be rezoned prior to the expiration of the Inspection Period. Seller acknowledges that buyer will likely contact, meet with and/or obtain consents for the Project from neighboring property owners during the Inspection Period and in the process of obtaining the Buyer Required Approvals. (emphasis added). None of the provisions of paragraph six of the Agreement of Sale were waived by either party. Paragraph 15(b) of the Agreement of Sale provides as follows: (b) If Seller shall violate or fail (in breach of its obligations hereunder) to fulfill or perform any of the terms, conditions or undertaking set forth in this Agreement within ten (10) days written notice from Buyer or (five (5) days written notice in the event of a monetary default), Buyer shall be entitled to: (i) terminate this Agreement and receive the return of the Deposit and reimbursement of Buyer's documented out-of-pocket due diligence expenses up to $15,000.00, and, thereupon, the parties hereto will be released and relieved from all provisions of this Agreement, or (ii) pursue specific performance. Paragraph 17 of the Agreement of Sale states that “[b]uyer and Seller agree to cooperate with each other and to take such further actions as may be requested by the other in order to facilitate the timely purchase and sale of the Property.” Paragraphs 6, 15(b) and 17 of the Agreement of Sale obligated Respondent to take all steps necessary, including “appearing and testifying at the various hearings,” for ensuring that the “Buyer Required Approvals” were satisfied, which in turn would allow Respondent to receive his share of the purchase price for the West Road property. Section 112.311(1), provides in part that “[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law.” Rezoning and Respondent’s Role In order for a charter school to be built on the West Road property, it was necessary to rezone the existing planned unit development land use plan covering the property. Ocoee City Planner Michael Rumer testified that there are two types of rezoning. There is a straight rezoning to a zoning category listed in the land development code and there is rezoning to a planned unit development (PUD). Both types of zoning use the following process: an application is filed; then there is a review process by a development review committee, which is a staff level review; that review is forwarded to the P & Z Commission for a recommendation; and then it goes to the Ocoee City Commission for two readings of an ordinance for rezoning if the rezoning is approved. This is the process that was followed for the West Road property PUD. On February 9, 2016, the issue of whether to recommend rezoning of the West Road property to allow for the charter school referenced in the Agreement of Sale came before the P & Z Commission. Respondent was present for the meeting. During the meeting, Respondent spoke in favor of the rezoning request for the West Road property. When a fellow commissioner made a request for more time to review the rezoning issue, Respondent opposed the delay by stating “[i]f you don't give them a go now, you basically kill the deal because it's a time sensitive thing that they want the kids in there in August.” During the meeting, the commissioners struggled with whether to recommend denial of the West Road property zoning request, recommend approval of the request without conditions, or recommend approval of the request with conditions. After two previous motions regarding the zoning request died for lack of a “second,” a third motion was made wherein approval was recommended “with the condition that we’re all going to look at the traffic movement with the final site plan design.” When it appeared as though this motion was also likely to fail for lack of a “second,” Respondent encouraged the chairman of the P & Z Commission to voice a “second” for the motion since Respondent was unable to do so.2/ Respondent’s actions during the meeting of February 9, 2016, were consistent with his obligations under the Agreement of Sale to assist the buyer of the West Road property with securing the “Buyer Required Approvals.”
Recommendation Based on the Findings of Facts and Conclusions of Law, it is RECOMMENDED that a civil penalty of $10,000.00 be imposed against Respondent due to his violation of section 112.313(7)(a) and that Respondent also be publicly censured and reprimanded. DONE AND ENTERED this 10th day of April, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2017.
The Issue The issue is whether the City of Miami's small scale development amendment adopted by Ordinance No. 12776 on March 2, 2006,1 is in compliance, as defined by Section 163.3184(1)(b), Florida Statutes (2005).2
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Intervenor submitted an application to the City for an amendment to the FLUM which would change the land use designation from Industrial and Medium Density Multifamily Residential to Restricted Commercial on a parcel of property less than ten acres in size, determined by use of the City's "net lot area" calculation method. The application was submitted concurrently with applications for a zoning change and for a major use special permit (MUSP). Intervenor's property is located at 1583 Northwest 24th Avenue, Miami, and on the south side of the Miami River, which is its border to the north. To the immediate east of the parcel is Industrial property, but to the immediate west is Medium Density Multi-Family Residential, and to the immediate south and west is Duplex Residential. The Industrial use to the immediate east is known as Florida Detroit Diesel-Allison, an engine repair facility that services boats as well as buses. River Run, a multi-family residential development, is to the immediate west; and there are low density residential uses to the south, southwest, and west. A major park is to the north, across the river from Intervenor's property. The primary land use around Intervenor's property is residential. The applications were reviewed by the City's Planning and Zoning Department (Planning Department) and its Planning Advisory Board. Both recommended that the applications be approved. In doing so, they determined that the land use change furthers the objectives of the Plan, and that the land use pattern in the neighborhood should be changed. On February 23, 2006, the City Commission (Commission) voted to approve the FLUM, zoning, and MUSP applications. The FLUM change was adopted by Ordinance 12776, which was signed by the Mayor on March 2, 2006. Because the amendment is a small scale development amendment under Section 163.3187(1)(c), Florida Statutes, it was not reviewed by the Department. See § 163.3187(3)(a), Fla. Stat. On April 3, 2006, Petitioners filed their Petition challenging the FLUM amendment. The Petition generally alleged that the amendment was internally inconsistent with other provisions in the City's Plan, that the amendment was not supported by adequate data and analysis, and that the FLUM amendment was not "in compliance" for a variety of other reasons. The Parties DPNA is a non-profit corporation comprised of homeowners, residents, and businesses in the Durham Park neighborhood, which lies on the south side of the Miami River well to the east of the Intervenor's property, east of four-lane Northwest 22nd Avenue, and consists primarily of single-family residential uses. It is a voluntary organization with membership open to all residents of Durham Park, whether they own or rent. DPNA holds meetings at neighborhood homes or in local restaurants, occasionally disseminates fliers, holds an annual meeting, and files the annual report required by law. Its president, Stuart Aquirre, appeared before the City Commission at the adoption hearing on behalf of DPNA and offered comments in opposition to the FLUM Amendment. However, DPNA does not own property or own or operate a business in the City. See Final Order entered August 31, 2006, in Payne, et al. v. City of Miami, et al., DOAH Case No. 06-0759GM, adopting the Recommended Order, 2006 Fla. Div. Adm. Hear. LEXIS 378 (DOAH Aug. 2, 2006). Mr. Payne owns and operates a tug boat company named P & L Towing and Transportation, which is located in the Lower River portion of the Miami River in the City and operates along the Miami River in the City (and the County). Mr. Payne commented in opposition to the plan amendment at the adoption hearing on the FLUM amendment. In the past, Mr. Payne's company has delivered vessels to the property now owned by Intervenor. He has not used the property for any business since 2002, except once or twice during the last four-to-five years to tow some boats there for safe harbor during a hurricane. After suffering a downturn after the terrorist attack on September 11, 2001, Mr. Payne's business has grown in recent years, due in part to new business in the Gulf of Mexico, and has acquired another boat and additional crew. MRMG is a private, non-profit trade association. Most of its members own and operate businesses on the Miami River, both in the City and in the County. MRMG's purpose is to preserve the working river. Its executive director, Fran Bohnsack, appeared before the City Commission on behalf of her association and offered comments in opposition to the proposed amendment. The City is a political subdivision of the State of Florida. It initially adopted the Plan in 1989. The Plan has been amended from time to time. As indicated, Intervenor is the owner of the subject property. Intervenor submitted comments in support of the FLUM amendment for consideration at the adoption hearing. FLUM Amendment The FLUM Amendment changes the land use designation applicable to Intervenor's property from “Industrial” and "Medium Density Residential" to “Restricted Commercial.” The section of the Plan entitled "Interpretation of the Future Land Use Plan Map," at pages 13-16, describes the various land use categories in the Plan. It describes the Industrial land use category as follows: Industrial: The areas designated as "Industrial" allow manufacturing, assembly and storage activities. The "Industrial" designation generally includes activities that would otherwise generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact unless properly controlled. Stockyards, rendering works, smelting and refining plants and similar activities are excluded. Residential uses are not permitted in the "Industrial" designation, except for rescue missions, and live-aboards in commercial marinas. The section also describes the "Medium Density Multifamily Residential" land use classification as follows: Medium Density Multifamily Residential: Areas designated as "Medium Density Multifamily Residential" allow residential structures to a maximum density of 65 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. Supporting services such as community-based residential facilities (14 clients or less, not including drug, alcohol or correctional rehabilitation facilities) will be allowed pursuant to applicable state law, community- based residential facilities (15-50 clients) and day care centers for children and adults may be permissible in suitable locations. Permissible uses within medium density multifamily areas also include commercial activities that are intended to serve the retailing and personal services needs of the building or building complex, small scale limited commercial uses as accessory uses, subject to the detailed provisions and applicable land development regulations and the maintenance of required levels of service for such uses, places of worship, primary and secondary schools, and accessory post-secondary educational facilities. Professional offices, tourist and guest homes, museums, and private clubs or lodges are allowed only in contributing structures within historic sites or historic districts that have been designed by the Historical and Environmental Preservation Board and are suitable locations within medium density multifamily residential areas, pursuant to applicable land development regulations and the maintenance of required levels of service for such uses. Density and intensity limitations for said uses shall be restricted to those of the contributing structure(s). Finally, the section describes the "Restricted Commercial" land use category as follows: Restricted Commercial: Areas designated as "Restricted Commercial" allow residential uses (except rescue missions) to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions; any activity included in the "Office" designation as well as commercial activities that generally serve the daily retailing and service needs of the public, typically requiring easy access by personal auto, and often located along arterial or collector roadways, which include: general retailing, personal and professional services, real estate, banking and other financial services, restaurants, saloons and cafes, general entertainment facilities, private clubs and recreation facilities, major sports and exhibition or entertainment facilities and other commercial activities whose scale and land use impacts are similar in nature to those uses described above, places of worship, primary and secondary schools. This category also includes commercial marinas and living quarters on vessels as permissible. According to the Interpretation of the Future Land Use Plan Map, page 13, paragraph 4, the Plan is based on a pyramid structure. That is, each land use classification permits all land uses within previously listed categories, except as otherwise specifically provided in the Plan. Therefore, with the exception of residential uses, all uses permitted under the Restricted Commercial designation are permitted under the Industrial classification. The Restricted Commercial category is a logical designation for the property because of its proximity to residential neighborhoods. Those residential properties would clearly be more detrimentally affected by industrial activities that may generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact, which are now authorized under the Industrial designation. The Miami River The Miami River runs northwest to southeast for more than five miles from the Miami International Airport to Biscayne Bay (the mouth of the River). For planning purposes, it includes three sections: the Upper River, the Middle River, and the Lower River. Although the demarcations of those sections have been in dispute, the best evidence of the appropriate demarcations of the three sections is found in the Miami River Master Plan (MRMP), which was adopted by the City in 1992. This was the finding and conclusion in both DOAH Case No. 04-2754GM and DOAH Case No. 06-759GM. The MRMP clearly depicts the geographic scope of the Mid-River (or Middle River) as extending west to Northwest 27th Avenue and the Up River (or Upper River) as being that portion of the Miami River lying west of Northwest 27th Avenue. Based on these demarcations, the Lower River would run from the mouth of the Miami River to the 5th Street Bridge, the Middle River from the 5th Street Bridge to Northwest 27th Avenue, and the Upper River from Northwest 27th Avenue westward. Using these demarcations, Intervenor's property is located in the Middle River. In its discussion of the Middle River, the MRMP provides: The Mid-River area contains most of the existing housing located along the Miami River. The wide variety of dwelling types, ranging from single family homes to high- rise apartment/condominium buildings, are mostly occupied by middle-income households. This is an important segment of the population for the City to retain in order to support the local economy and tax base. A number of opportunities remain for development of new housing by building on vacant lots or by increasing the density of existing developed lots. New housing construction should be encouraged, except on lands reserved for water dependent uses. In the proposed SD-4.1 waterfront commercial zoning district (See page 1.14) residential development could be permitted as an accessory use to a marina. The property is located within the referenced proposed SD-4.1 waterfront commercial zoning district. According to the MRMP, the strategy for the Middle River is to "[b]ring the neighborhoods back to the river." The MRMP further provides that "[d]iverse residential neighborhoods interspersed with commercial districts make the Mid-River unusual. The strategy is to develop centers of activities at strategic locations that will become gateways to the river and give identity to the neighborhoods." In contrast, the MRMP describes the Up-River as "a working river." It also notes that "[m]arine industries in the Up-River area create a busy, economically vital district that is important to preserve. The challenge is to protect these industries from displacement by non-water-dependent uses and to nurture growth in marine industries without negatively impacting nearby residential neighborhoods." In describing the Upper River, the MRMP provides: The character of the river changes dramatically west of NW 27th Avenue bridge. In fact, it is not really the river there; it is the man-made Miami Canal (and the Tamiami Canal branching off to the west). In contrast to the gently curving paths and irregular edges of the natural river, the canal banks are rigidly straight and significantly closer together at 90 feet. The most striking difference in the up-river area is the change in land use. The Miami Canal is almost entirely industrial in character, with commercial shipping being the predominant use. Most of the larger cargo vessels on the Miami River are loaded and unloaded in this area, resulting in an incredibly busy, narrow river channel. Due to the industrial nature of the up-river corridor, many of the urban design recommendations made for the mid-river and downtown areas are not applicable. The emphasis in this area should be to promote growth in shipping and related industries and to provide adequate roadways for the vehicles and trucks associated with these businesses. Unlike the character of the Upper River, the portion of the River between Northwest 27th Avenue and Northwest 22nd Avenue is less than half industrial and exhibits the typical characteristics of the Middle River as a "transitional district" between the Upper River and the Lower River. Intervenor's Property is situated on the Miami River at Northwest 24th Avenue. Land uses surrounding the Subject Property include: industrial; duplex residential; and medium- density multi-family residential. There is a park across the river, and low density residential to the south, southwest, and west. River Run, a multi-family residential development is to the west. Industrial use is to the east, but to the east of that is the Riverside property, which is now Restricted Commercial as a result of the Final Order in Payne, et al. v. City of Miami, et al., DOAH Case No. 06-0759GM. Because the Middle River is “a mixed use transitional section of the river,” mixed-use development is intended to be used as a mechanism to revitalize and stabilize the Middle River and at the same time allow more people access to the river. It is also intended as a way to combat the crime that has existed in the Middle River for many years. Petitioners did not dispute that Restricted Commercial generally is a reasonable land use designation for the Middle River and offered no expert testimony to the contrary. Rather, their dispute is with the proper boundaries of the Middle River and the propriety of Restricted Commercial in the specific location of Intervenor's property. Petitioners contend that the more recent UIP, which places the boundary between the Upper River and the Middle River farther east at Northwest 22nd Avenue, should control. In addition to the other uses in this transitional area, until recently the UIP's boundary would have incorporated as part of the Middle River five contiguous industrial land uses fronting on the south side of River from approximately Northwest 21st Avenue to Northwest 24th Avenue (the River Marine property to the east of the 22nd Avenue bridge, the Riverside property to the west of the 22nd Avenue bridge, the Florida Detroit Diesel- Allison property, Intervenor's property that is the subject of this case, and the River Run South property to the west of Intervenor's property, from east to west). Collectively these properties were the single greatest concentration of Industrial land along the River in the City. The River Marine property is a shipping operation. The Detroit Diesel property remains in use as a repair facility for both private and commercial vessels, as well as buses and trucks. Neither the Riverside property nor Intervenor's property was in actual industrial use at the time of the applications to change their FLUM designations from Industrial, although both have operated as a location for repair and storage of large private and commercial vessels in the past. However, the Riverside property was changed from Industrial to Restricted Commercial as a result of the Final Order entered in Case No. 06-0759GM. The challenged FLUM amendments affecting Intervenor's property are not yet in effect. See § 163.3189(2)(a), Fla. Stat. The River Run South property to the west of Intervenor's property was changed from Industrial to Medium Density Multi-Family. Notwithstanding Petitioner's arguments, the fact remains that the City decided not to adopt the UIP's boundary between the Upper River and Middle River. While the City has adopted three other parts of the UIP, which are not pertinent to this proceeding, the City has declined to adopt the UIP's demarcation of the Upper River and the Middle River. Petitioners also argue in their PRO that the City and Intervenor overlook parts of the MRMP that would suggest that Restricted Commercial is inappropriate in the specific location of Intervenor's property. But they presented no expert land use testimony to support their arguments, and they failed to prove that the parts of the MRMP cited in their PRO outweigh the parts of the MRMP that would support the FLUM Amendment at issue. Urban Infill Area The City is designated as an urban infill area which assists the City in urban infill concepts of efficient use of utilities, infrastructure, and transportation systems. The City's designation as an urban infill area was made after adoption of the Comprehensive Plan and the MRMP and it adds importance to the MRMP's concept of the Middle River as a transition area having mixed-use development. The FLUM Amendment's Restricted Commercial land use classification is consistent with the City's urban infill designation and the Comprehensive Plan because it permits mixed- use development and increases the flexibility of Intervenor's property to be developed in a manner that is consistent with the City's urban infill designation. Consistency with City's Comprehensive Plan Petitioners failed to prove the alleged inconsistency of the FLUM Amendment with any of the following Comprehensive Plan objectives and policies, which are discussed in more detail below: Goal LU-1(1),(3), (4), and (5); Policy LU-1.1.2; Objective LU-1.2; Objective LU-1.3; Policy LU-1.3.6; Policy LU- 1.6.4; Goal CM-4; Objective CM-4.1; Policy CM-4.1.5; Objective NR-1.3; Objective NR-3.2; Policy NR-3.2.1; Policy NR-3.2.2; Policy NR-3.2.3; Objective PW-1.2; Policy PW-1.2.1; Policy CI- 1.2.3, Objective PA-3.2; Policy PA-3.2.1; Objective 3.3; Goal TR-1; and Policy TR-1.1.1. (Allegations of inconsistency with other plan provisions have been stricken.) Future Land Use Element Goal LU-1 is to: Maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city; (4) fosters the growth and development of downtown as a regional center of domestic and international commerce, culture and entertainment; (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's significant natural and coastal resources. Petitioners’ contention that the FLUM Amendment is inconsistent with Goal LU-1(1) is without merit. Intervenor's property is adjacent to low-density residential uses. The FLUM Amendment will eliminate the potential for development of industrial uses that may generate “excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact.” Ironically, and illogically, Petitioners contend that Industrial is better than Restricted Commercial for the quality of life of surrounding residential neighborhoods, while at the same time contending that Industrial use is incompatible with residential uses. Petitioners failed to prove that the FLUM Amendment is inconsistent with Goal LU- 1(1). To the contrary, it is consistent with that goal. With respect to Goal LU-1(3) concerning the promotion and facilitation of economic development and the growth of job opportunities in the City, Petitioners contended that the FLUM Amendment will negatively impact marine industrial uses along the river. To the contrary, Payne, who owns a marine-related business, testified that he has not used the Riverside property for any business purpose since 2002, except once or twice during the last four to five years for safe harbor during a hurricane. The FLUM Amendment is therefore not inconsistent with Goal LU- 1(3). Subpart (4) of Goal LU-1 is not relevant in this case because it pertains to the downtown area, and Intervenor's property is not located in the downtown area. Consequently, the FLUM Amendment cannot be inconsistent with Goal LU-1(4). The FLUM Amendment is consistent with Goal LU-1(5) by minimizing land use conflicts. The FLUM Amendment allows mixed uses that will create a transition zone between the more intensive industrial use and the less intensive residential use. The FLUM Amendment is also consistent with subpart (2) of Goal LU-1, which is concerned with the redevelopment and revitalization of declining areas. The neighborhood of Intervenor's property includes an area in decline, and mixed-use projects that include work force and affordable housing will help to stabilize the area by providing housing opportunities for employees at the Civic Center and in downtown who want to live nearer to where they work. Policy LU-1.1.1 provides: Development orders authorizing new development or redevelopment that results in an increase in the density or intensity of land use shall be contingent upon the availability of public facilities and services that meet or exceed the minimum LOS standards adopted in the CIE. Policy LU-1.1.2 provides: The City's Planning Department, with the assistance of various City departments and agencies, shall be responsible for monitoring the current and projected LOS provided by public facilities. The Planning Department shall perform the required concurrency review of proposed development for submittal to the State Department of Community Affairs (DCA), as required by Florida statutes and administrative rules. The City did a concurrency analysis of the FLUM Amendment. Petitioners presented no evidence to show that the concurrency analysis was defective in any way. The FLUM Amendment is therefore consistent with Policy LU-1.1.2. Objective LU-1.2 is to: Promote the redevelopment and revitalization of blighted, declining or threatened residential, commercial and industrial areas. Petitioners' introduced no evidence of inconsistency with this policy. To the contrary, there was evidence mixed-use projects allowed in Restricted Commercial could help reverse decline in the area. Objective LU-1.3 provides: The City will continue to encourage commercial, office and industrial development within existing commercial, office and industrial areas; increase the utilization and enhance the physical character and appearance of existing buildings; and concentrate new commercial and industrial activity in areas where the capacity of existing public facilities can meet or exceed the minimum standards for Level of Service (LOS) adopted in the Capital Improvement Element (CIE). The Restricted Commercial land use designation permits the types of land uses that Objective LU-1.3 seeks to encourage-- commercial and office uses. Moreover, the concurrency analysis performed by the City revealed that approval of the FLUM Amendment would not result in a failure of existing public facilities to meet or exceed applicable Level of Service minimum standards. Therefore, the FLUM Amendment is not inconsistent with Objective LU-1.3. Policy LU-1.3.6 provides: The City will continue to encourage a diversification in the mix of industrial and commercial activities and tenants through comprehensive marketing and promotion efforts so that the local economy is buffered from national and international cycles. Particular emphasis is on, but not limited to, Southeast Overtown/Park West, Latin quarter, Little Haiti, Little River Industrial District, River Corridor, the Garment District and the Omni area. The Restricted Commercial designation allows greater flexibility in the development of the Subject Property. Such greater flexibility is not inconsistent with encouraging a diversification in the mix of industrial and commercial activities. The mix of uses permitted under the Restricted Commercial land use classification will promote urban infill and serve to prevent urban sprawl. The FLUM Amendment is, therefore, not inconsistent with Policy LU-1.3.6. Policy LU-1.6.4 provides: Any proposal to amend the City's zoning ordinance that has been deemed to require an amendment to the Future Land Use Plan Map by the Planning Department, shall require a concurrency review and a finding from the Planning Department that the proposed amendment will not result in a LOS that falls below the adopted minimum standards, and will not be in conflict with any element of the Miami Comprehensive Neighborhood Plan. Based on its evaluation, and on other relevant planning considerations, the Planning Department will forward a recommended action on said amendment to the Planning Advisory Board, which will then forward its recommendation to the City Commission. The City’s concurrency analysis demonstrated that approval of the FLUM Amendment would not result in a failure of existing public facilities to meet or exceed applicable Level of Service minimum standards. Petitioners presented no evidence to refute that analysis. The FLUM Amendment was properly noticed for a public hearing before the City’s Planning Advisory Board. In accordance with City policy, the Planning Advisory Board held a public hearing on the FLUM Amendment and provided the Commission with its recommendation (of approval). The FLUM Amendment is therefore not inconsistent with Policy LU-1.6.4. Transportation Element Goal TR-1 is to: Maintain an effective and cost efficient traffic circulation network within the City of Miami that provides transportation for all persons and facilitates commercial activity, and which is consistent with, and furthers, neighborhood plans, supports economic development, conserves energy, and protects and enhances the natural environment. Petitioners failed to prove that the FLUM Amendment is inconsistent with this goal. The City’s concurrency analysis determined that the FLUM Amendment would not result in unacceptable level of service with respect to traffic circulation. Petitioners presented no evidence to refute this analysis. Policy TR-1.1.1 provides: The City hereby adopts designation of the City, excluding Virginia Key, Watson Island and the uninhabited islands of Biscayne Bay that have a land use and zoning classification of Conservation, as an Urban Infill Area pursuant to Miami-Dade County’s designation of an Urban Infill Area lying generally east of the Palmetto Expressway and including all of the City of Miami. Within this area, the concentration and intensification of development around centers of activity shall be emphasized with the goals of enhancing the livability of residential neighborhoods and the viability of commercial areas. Priority will be given to infill development on vacant parcels, adaptive reuse of underutilized land and structures, and the redevelopment of substandard sites. Maintenance of transportation levels of service within this designated Urban Infill Transportation Concurrency Exception Area shall be in accordance with the adopted Transportation Corridors level of service standards set forth in Policies TR-1.1.2 and TR-1.1.3 of the Transportation Element of the MCNP. (See Land Use Policy LU-1.1.11.) The fact that Intervenor's Property is within an urban infill area was a consideration of the City when adopting the FLUM Amendment. The FLUM Amendment--reclassifying land in the urban infill area from Industrial and Medium-Density Multifamily Residential to Restricted Commercial--is in no way inconsistent with this policy. Coastal Management Element Goal CM-4 is to: Ensure public safety and the protection of property within the coastal zone from the threat of hurricanes. Objective CM-4.1 is to: Minimize the potential for loss of human life and the destruction of property from hurricanes. Policy CM-4.1.5 provides: Each proposed land use and land development regulation change within the Coastal High Hazard area of the city will require an analysis of its potential impact on evacuation times and shelter needs in the event of a hurricane. Petitioners presented no evidence addressing this goal, objective, and policy and failed to prove that the FLUM Amendment is inconsistent with them. Natural Resources Element Objective NR-1.3 is to: Maintain and enhance the status of native species of fauna and flora. Petitioners failed to present any evidence showing that the FLUM Amendment is inconsistent with this objective. Objective NR-3.2 is to: Prevent the degradation of ambient air quality within the city. Policy NR-3.2.1 states: Establish vehicular transportation patterns that reduce the concentration of pollutants in areas known to have ambient air quality problems. Policy NR-3.2.2 provides: Support those elements of the Miami-Dade County Comprehensive Development Master Plan that encourage the use of Metrorail and Metromover by directing high density new development or redevelopment first to areas nearest Metrorail and Metromover stations, and those land use policies that do not foster the proliferation of employment centers in the suburban areas of the county. (See Transportation Objective TR-1.5 and associated policies.) Policy NR-3.2.3 provides: Work with the County transportation planning agencies to continue to increase the quality of mass transit services within the city. Petitioners failed to provide any evidence showing that the FLUM Amendment will have negative impact on the City’s air quality. To the contrary, the FLUM Amendment changes the land use classification from one that may involve “excessive amounts of noise, smoke, fumes,. . . , [and] hazardous wastes . . . .” It was not proven that the FLUM Amendment is inconsistent with Objective NR-3.2 or Policies NR-3.2.1, NR- 3.2.2, and NR-3.2.3 (which is irrelevant) and has no bearing on the City’s adoption of the FLUM Amendment. Potable Water Element Objective PW-1.2 and Policy PW- 1.2.1 both address availability of potable water. Objective PW- 1.2 is to: Ensure adequate levels of safe potable water are available to meet the needs of the City. Policy PW-1.2.1 is to: Ensure potable water supplies meet the established level of service standards for transmission capacity of 200 gallons per capita per day (GPCD). (See Natural Resource Conservation Policy NR-2.1.5 and Capital Improvements Policy CI-1.2.3.) The City’s concurrency analysis revealed that potable water supplies will be available to the City after the FLUM Amendment. Petitioners presented no evidence to the contrary, and therefore did not prove that the FLUM Amendment is inconsistent with Objective PW-1.2 and Policy PW-1.2.1. Capital Improvements Element Policy CI-1.2.3 provides: Acceptable Level of Service Standards for public facilities in the City of Miami are: Recreation and Open Space -- 1.3 acres of public park space per 1000 residents. Potable Water Transmission Capacity -- 200 gallons/resident/day. (See Potable Water Policy PW-1.2.1 and Natural Resource Conservation Policy NR-2.1.5.) Sanitary Sewer Transmission Capacity -- 100 gallons/resident/day. Storm Sewer Capacity -- Issuance of any development permit shall require compliance with a drainage level of service standard of a one-in-five-year storm event. For the storm drainage system as a whole, 20 percent of the existing system will be brought to a standard of a one-in-five-year storm event by the year 2000. Solid Waste Collection Capacity -- 1.28 tons/resident/year. Traffic Circulation -- The minimum level of service standard on limited access, arterial, and collector roadways that are not within designated Transportation Corridors is LOS E, with allowable exceptions and justifications therefore, with LOS measured by conventional V/C methodology. Within designated Transportation Corridors, which include approximately 95% of the roadway mileage within the City of Miami, a minimum LOS E is also maintained, but the measurement methodology is based on peak-hour person- trips wherein the capacities of all modes, including mass transit, are used in calculating the LOS. Specific levels of service by location and mode are set out in Policies 1.1.2 and 1.1.3 of the Transportation Policies in the Miami Comprehensive Neighborhood Plan 1989-2000. Petitioners presented no evidence with respect to this policy and did not prove that the FLUM Amendment is consistent with Policy CI-1.2.3. In sum, Petitioners failed to prove that the FLUM Amendment is inconsistent with any of the goals, objectives, or policies in the Comprehensive Plan. The Port of Miami River Petitioners also argue that the Port of Miami River Sub-Element must be considered in determining whether the amendment is in compliance. This Sub-Element is found in the Plan's Ports, Aviation and Related Facilities Element. It is an optional element not required under Chapter 163, Florida Statutes. Goal PA-3 of the Port of Miami River Sub-Element of the Plan refers to the Port as "a group of privately owned and operated commercial shipping companies located at specific sties along the Miami River." A footnote to the title of the Sub- Element defines the Port of Miami River as: Simply a legal name used to identify some 14 independent, privately-owned small shipping companies located along the Miami River, and is not a "port facility" within the usual meaning of the term. The identification of the shipping concerns as the "Port of Miami River" was made in 1986 for the sole purpose of satisfying a U.S. Coast Guard regulation governing bilge pump outs. The private shipping companies identified as comprising the Port of Miami River are listed in Volume II of the Plan. The location of each of those companies is also shown. See Petitioners' Exhibit 4, Section VIII, page 35. This information came from Miami-Dade County, where most of the shipping companies were located. Ten of the 14 were west of Northwest 27th Avenue. Four were east of the 5th Street Bridge. None were between Northwest 27th Avenue and 5th Street Bridge. Over the years, the City has consistently interpreted this Sub-Element as applying only to properties that are listed in Volume II of the Plan. Because Intervenor's property is not included within the City's definition of the Port of Miami River, in reviewing the application, the City adhered to its long-standing interpretation that the Sub-Element was not applicable or relevant to the analysis of the amendment's consistency with the Plan. See Payne, et al. v. City of Miami, et al., Final Order Number DCA06-GM-214, DOAH Case No. 06- 0759GM, (DOAH Aug. 2, 2006; DCA August 31, 2006); Payne, et al. v. City of Miami, et al., Final Order Number DCA06-GM-132, DOAH Case No. 04-2754GM, 2006 Fla. ENV LEXIS 75 (DOAH May 16, 2006; DCA June 21, 2006); Monkus et al. v. City of Miami et al., Final Order Number DCA04-GM-197, DOAH Case No. 04-1080GM, 2004 Fla. ENV LEXIS 105, *33-34 (DOAH Sept. 3, 2004; DCA Oct. 26, 2004). Petitioners contend that the Port of Miami River is more than just the 14 companies listed in the footnote to the Sub-Element. They point out that the footnote refers to "some 14," suggesting that, while referring to specific locations, there could have been more than 14, and presumably a change of ownership or name of a company would not "shrink" the Port. Similarly, they contend, the Port subject to the Sub-Element should grow in size as new shipping businesses opened at other locations on the river. In support of their argument, Petitioners point out that Objective PA-3.1 and Policy PA-3.1.2 of the Sub-Element contemplated the expansion and redevelopment of the Port over time. They also cite to Payne, et al. v. City of Miami, et al., 927 So. 2d 904 (Fla. 3d DCA 2005), which was an appeal from a circuit court order dismissing a complaint filed by Payne and MRMG under Section 163.3215, Florida Statutes, for lack of standing because they were not "substantially affected persons," and not in a proceeding under Section 163.3187, Florida Statutes, to determine whether an amendment was in compliance. Since the circuit court had granted a motion to dismiss, there was no evidentiary hearing, and no evidence was presented to either court regarding the Port of Miami River. In that context, the Payne court, in a majority opinion, considered the Sub-Element to be relevant and "intended to apply to the 'uses along the banks of the Miami River," and not just to specific companies named in the definition. The circuit court order was reversed, and the case was remanded for further proceedings. DCA's Final Order entered in DOAH Case No. 04-2754GM held that Payne was "based on a standing issue, with the discussion of the interpretation of the Port of Miami River Element and its related policies occurring as dicta." Payne, et al. v. City of Miami, et al., Final Order Number DCA06-GM-132, DOAH Case No. 04-2754GM, 2006 Fla. ENV LEXIS 75, at *9 (DOAH May 16, 2006; DCA June 21, 2006). In this case (unlike in DOAH Case No. 06-0759GM), the only evidence of an updated list of shipping companies on the Miami River was the UIP, which indicated that, as of 2002, there were 25 private shipping companies operating on the Miami River. No map accompanies the UIP's list. From the evidence, which was not clear, it appears that one shipping company still was operating just east of Northwest 27th Avenue and that two shipping companies still were operating just east of Northwest 22nd Avenue. The latter two appear to have been operating on the north side of the river. Even if the Port of Miami River is not limited to the 14 shipping companies or locations named in the Plan, it is clear from the evidence that Intervenor's property never functioned as a private shipping terminal, and neither did any of the other Industrial property on the south side of the river in the immediate vicinity of Intervenor's property. For that reason, the Port of Miami River Sub-Element does not apply to the FLUM amendment in this case. Petitioners also contend that all marine industrial uses on the river are part of the Port of Miami River, whether or not they would constitute shipping companies or businesses. Contrary to Petitioners' arguments, it is clear that the Port of Miami River Sub-Element does not apply to those other uses. Assuming that the Port of Miami River Sub-Element applied to this FLUM amendment, not all of it would apply. Objective PA-3.1, and underlying Policies PA-3.1.1, 3.1.2, and 3.1.3, all relate to the purpose and scope of land development regulations for the Port of Miami River and are therefore not relevant. See Payne, et al. v. City of Miami, et al., Final Order Number DCA06-GM-214, DOAH Case No. 06-0759GM, (DOAH Aug. 2, 2006; DCA August 31, 2006); Payne, et al. v. City of Miami, et al., Final Order Number DCA06-GM-132, DOAH Case No. 04- 2754GM, 2006 Fla. ENV LEXIS 75 (DOAH May 16, 2006; DCA June 21, 2006). Objective PA-3.2 and underlying Policy PA-3.2.1 pertain to the coordination of surface transportation access to the Miami River with the traffic and mass transit system shown on the traffic circulation map series and are not germane to this amendment. That leaves Goal PA-3 and Objective PA-3.3. It was found and concluded in the DCA's Final Order in DOAH Case No. 06-0759GM and in DOAH Case No. 04-2754GM, which constitute stare decisis and collateral estoppel as to these Petitioners, that only Objective PA-3.3 would require consideration. Objective PA-3.3 reads as follows: The City of Miami shall coordinate its Port of Miami River planning activities with those of ports facilities and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami. Petitioners failed to present any evidence concerning a lack of coordination activities relative to the FLUM amendment. Coordination does not mean that adjacent local governments or other interested persons have veto power over the City's ability to enact plan amendments. City of West Palm Beach et al. v. Department of Community Affairs et al., 2005 Fla. ENV LEXIS 191 at *34, DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM (DOAH July 18, 2005, DCA Oct. 21, 2005). Rather, the City needs only take into consideration input from interested persons. Id. at *35. The City established that pursuant to its Resolution No. 00-320, before any resolution, ordinance, or issue affecting the Miami River is considered, the City Manager is required to inform the Miami River Commission (MRC) of that impending matter. The MRC serves as a clearinghouse for all interests of the Miami River, including residential, economic, and industrial interests, as well as the other entities listed in the Objective. See §§ 163.06 et seq., Fla. Stat. The evidence shows that the MRC was notified before the amendment was considered, and that it provided a recommendation to the Commission. The MRC's input consisted of a 7-6 vote that the FLUM amendment was inconsistent with the UIP. As indicated, this voted was purely advisory, and there was no vote on whether the FLUM amendment was consistent with the City's Comprehensive Plan. While ruled not relevant in Case Nos. 06-0759GM and 04-2754GM, Goal PA-3 states that the Port of Miami River "shall be encouraged to continue operation as a valued and economically viable component of the city's maritime industrial base." Unlike in those cases, there was no expert land use testimony as to whether the FLUM Amendment in this case is inconsistent with the objectives of the Port of Miami River Sub-element that are directed at preserving and encouraging growth of the marine industry on the river because it impacts the “economic viability of the marine industries” by “invit[ing] speculation [on land] that makes it impossible for that industry to expand.” Mr. Payne testified in this case that the FLUM Amendment will negatively impact the marine industry on the Miami River, primarily because there is a shortage of dockage space. Mr. Payne further testified that land is needed for expansion of the marine industry. Notwithstanding Mr. Payne's testimony, Petitioners presented no evidence demonstrating that the FLUM Amendment will negatively impact the viability of the maritime industry. Mr. Payne, who is not a land use expert, conducted no analysis of the needs of the neighborhood in the area of Intervenor's property. Mr. Payne did not testify as how many jobs were available when Intervenor's Property was used for marine businesses some four-to-five years ago, or how many jobs will result from the FLUM Amendment. The City has no policy of "land banking" (i.e., reserving land for future growth and expansion of a particular use), nor does the Comprehensive Plan include such a policy. The UIP advocates "land banking" of waterfront industrial lands by the marine industry. But there was no evidence that either Mr. Payne or MRMG sought to purchase Intervenor's Property for that purpose. Indeed, the evidence was that Intervenor bought its property after several years of inactivity had turned the property into an eyesore. If Goal PA-3 is relevant, the issue would be whether the FLUM Amendment is consistent with it. Internal consistency does not require that a local comprehensive plan provision "further"--i.e., take action in the direction of realizing-- every other goal, objective, and policy in the plan. Contrast § 163.3177(10)(a), Fla. Stat. (defining consistency of local comprehensive plan with regional and state comprehensive plans). It is enough if a plan provision is "compatible with"--i.e., does not conflict with--other goals, objectives, and policies in the plan. See Cooper v. City of St. Petersburg, ACC-92-004, DOAH Case No. 90-8189GM, 1992 Fla. ENV LEXIS 111, *51 (ACC July 21, 1992; DOAH RO Dec. 13, 1991). A fortiori, a FLUM amendment need not "further" comprehensive plan goals, and it was not proven that the FLUM Amendment in this case conflicts with Goal PA-3, even assuming the goal applies and is relevant. Data and analysis Petitioners contend that the FLUM amendment in this case was not based on the best available, professionally acceptable, data and analysis, as required by Florida Administrative Code Rule 9J-5.005 and Section 163.3177, Florida Statutes. However, they presented no testimony from a land use expert to support their contention. Petitioners contend that the City was required to conduct a housing and industrial needs assessment before adopting the FLUM amendment. The City did not conduct a formal, amendment-specific assessment of the need for residential or industrial lands, or specifically, of the need for housing. It was not required to do so because Intervenor's Property is located within the City's urban infill area. The DCA may require a housing needs assessment if the proposed FLUM amendment will result in urban sprawl. But Petitioners did not present any evidence to prove allegations of urban sprawl (which would have had to result somehow from denser residential development within the urban infill area). The principal considerations for the City's decision to adopt a land use change are the provisions of the Comprehensive Plan and additional criteria set forth in the City's code. The City's analysis of the FLUM Amendment took into consideration that Intervenor's property is surrounded by low and medium density residential. The City primarily reviewed the Comprehensive Plan, Data and Analysis (Volumes II), the MRMP and the data contained in the City's Legistar system to determine whether the FLUM Amendment was consistent with the goals, objectives, and policies of the Comprehensive Plan. The City's determination of consistency was properly based upon a finding that the FLUM amendment would minimize potential land use conflicts in the area, taking into consideration that Intervenor's property abuts low density residential on two sides. In its analysis, the City noted that Intervenor's property was surrounded by lower density residential uses on two sides and industrial use on one side and, further, that the property itself was not all Industrial; it contains portions that were and remain designated Medium Density Multi-family Residential. The City's analysis of the FLUM Amendment noted that the two different designations on the property at present are mutually exclusive in what they permit. The Medium Density Multi-family Residential designation permits some accessory commercial uses to the principal use of residential; the Industrial designation allows commercial uses as its principal use, but specifically excludes residential. In order to revitalize and redevelop the property, it was necessary to change one of the land use designations. The City also determined in its analysis of the FLUM Amendment that the Restricted Commercial designation, a mixed- use classification, was a more flexible classification for the introduction of mixed uses to the area. Additionally, the City found that the Restricted Commercial designation functions as a transitional district between the industrial use and the residential use, which promotes good urban infill in the Middle River. Balancing all the factors in the Comprehensive Plan, the City found the FLUM Amendment consistent because the Restricted Commercial land use designation permits an array of uses that promote economic development. The City considered adequate data and analysis in its decision, including: documentation submitted by Brisas which consisted of its application, property survey, property deed, photographs of the property, and disclosure of property ownership; a future land use map of the area; a legal description of the property; City staff analysis of the proposed land use change; the recommendation of the City's Planning Advisory Board; an aerial photograph of the area; proposed draft legislation amending the Comprehensive Plan; a school impact analysis; and the recommendation of the Miami River Commission. In support of their argument that the FLUM Amendment at issue is not supported by data and analysis, Petitioners in their PRO cited to parts of the MRMP, to the UIP, and to 2005 legislation establishing the “Waterfronts Florida Program” and amending Section 163.3177(6)(a), Florida Statutes. (Other material cited in their PRO was not in evidence in this case.) The MRMP and UIP already have been discussed. As for the legislation, it requires coastal counties to include in the future land use elements of their comprehensive plans "regulatory incentives and criteria that encourage the preservation of recreational and commercial working waterfronts as defined in s. 342.07." By its terms, the legislation applies to counties, is not self-implementing, and adds nothing to the City's plan provisions. In addition, Restricted Commercial allows water-dependent and water-related uses, as defined by Section 342.07(2), Florida Statutes. As indicated, Petitioners also contend that the City ignored certain data which shows that the FLUM Amendment disrupts an existing land use pattern supporting water-dependent uses. However, as also noted above, the City performed an extensive land use study to consider, among other things, these very concerns and concluded that the new land use designation is compatible with adjacent properties and consistent with the Plan. For the foregoing reasons, Petitioners failed to prove that the FLUM Amendment is not supported by professionally acceptable data and analysis, or that the City failed to react to data and analysis in an appropriate manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the small scale development plan amendment adopted by Ordinance No. 12776 is in compliance. DONE AND ENTERED this 25th day of September, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2006.
The Issue The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2016.
The Issue The ultimate issues to be resolved in this proceeding are whether the Florida Land and Water Adjudicatory Commission should grant or deny permission to Key Large Investors, Inc., to develop and what, if any, conditions and restrictions should be attached to development approval or denial. The Department of Community Affairs contends that Monroe County improperly approved the preliminary development plan and final development plan because the plans did not comply with the requirements of local ordinances and rules of the Florida Administration Commission and that the development plans were inconsistent with the Monroe County Comprehensive Plan. Key Large Investors, Inc., contends that the appeal should be dismissed because it was not filed within the required time limits, that the Department of Community Affairs is estopped from maintaining the appeal, and that the development comports with local and state criteria. The Florida Audubon Society agrees with the contentions of the Department of Community Affairs, and Monroe County agrees with the contentions of Key Largo Investors, Inc.
Findings Of Fact Key Largo Investors, Inc. ("KLI" hereafter), owns approximately 129.2 acres of land in North Key Largo, Monroe County, Florida. The property is approximately three miles south of "Card Sound Road" and 5.5 miles north of U.S. Highway 1. It is divided by State Road 905; 84.5 acres of the parcel lying to the east of the highway, and 44.7 acres to the west. The property is within the Florida Keys Area of Critical State Concern. KLI is proposing to develop a residential and marina project on the property to be known as "Carysfort Yacht Club." The Department of Community Affairs is the state land planning agency designated to undertake statewide comprehensive planning. Members of the Florida Audubon Society participate in fishing, nature study, scientific research, and other such activities in the immediate vicinity of the proposed project. Members of the Society believe that the proposed development would adversely affect their interests by eliminating, disturbing, or otherwise adversely affecting their ability to engage in such activities. The proposed project lies within Monroe County, Florida. Monroe County is the local government agency which issued the development order respecting the proposed development. KLI filed an application with Monroe County for preliminary development plan approval for the Carysfort Yacht Club The staff of the Monroe County Planning and Zoning Board reviewed the plans and other submissions, and the Board conducted a public hearing on February 26, 1981. The Board took no action at that time, but continued the matter until a meeting conducted on March 27, 1981, so that KLI could provide additional information. On March 27, the matter was again continued. A public hearing was conducted by the Planning and Zoning Board on April 24, 1981. In considering the application for preliminary development approval, the Planning and Zoning Board had KLI's application before it. The application included an "Environmental Designation Survey," a "Community Impact Statement," and additional documentation. At its April 24, 1981, meeting, the Planning and Zoning Board approved the preliminary development plan. The only condition imposed by the Board was a requirement that KLI back fill a marina that had been dredged on the site by a prior owner. The Board's order approving the preliminary development plan was never formally transmitted to the Department of Community Affairs. Personnel of the Department were aware of the decision, but had not been formally advised of it. KLI applied to the Monroe County Planning and Zoning Board for final development plan approval for Phase 1A of the proposed project. The Zoning Board met on February 25, 1982, and approved the plans through its Resolution MD 81-3-19. On March 9, 1982, a copy of this order was transmitted to the Department of Community Affairs. In accordance with the Monroe County Code, the Florida Keys Citizens Coalition appealed the Zoning Board order to the County Commission. On or about August 9, 1982, the County Commission denied the Coalition's appeal. Reconsideration was requested and denied on or about August 23, 1982. On September 24, 1982, the Department of Community Affairs filed an appeal with the Florida Land and Water Adjudicatory Commission. These proceedings ensued. The preliminary development plans initially submitted to the Monroe County Planning and Zoning Board provided for approximately 700 dwelling units on both sides of State Road 905. While it is not clear from the documents, it appears that the Planning and Zoning Board intended to approve only those portions of the preliminary development plans that provided for development on the east side of the roadway. KLI has, for now, abandoned plans to develop on the west side of the roadway. The plans provide for construction of a total of 512 dwelling units on the 84.5 acres lying to the east of State Road 905. KLI is proposing to develop the project in three stages -- 203 dwelling units would be constructed during Phase 1, 188 units during Phase 2, and 121 units during Phase 3. In its application for final development plan approval which generated this proceeding, KLI is seeking approval to develop a substage of Phase 1, which it has designated Phase 1A. The KLI property which lies to the east of State Road 905 borders on the Atlantic Ocean. The land had been cleared and partially developed before KLI purchased it. A harbor and an upland lake had been dredged. In Phase 1A of the development, KLI is proposing to construct 31 dwelling units along the Atlantic Ocean adjacent to the harbor. The plans also provide for constructing roadways and parking facilities, drainage structures, sewage treatment structures, a water distribution system, and recreational amenities. Neither the preliminary development plans nor the final development plans for Phase 1A explicitly provide that the developer will bear the cost of the infrastructure (roadways, water distribution systems, wastewater treatment facilities, and recreational amenities) of the development. The development plans, however, appear to assume that the developer would maintain these costs. At the time that KLI purchased this property, the portion of the property to the west of State Road 905 was dominated by a native hardwood hammock. Approximately 8 acres of the property to the east of State Road 905 were dominated by such a hammock. KLI, or someone acting on its behalf, illegally cleared a portion of the hammock on the west of State Road 905. It will take more than 10 years for the hardwood hammock to reestablish itself completely, but that process is now occurring. Of the approximately 8 acres of hardwood hammock that remain on the east of State Road 905, KLI proposes to ultimately clear all but approximately 1 1/2 to 2 acres. That remaining hammock would be divided by an access road. It does not appear that clearing the hardwood hammock on the east side of State Road 905 is a necessary portion of Phase 1A of the development. There are two small wetland communities on the site to the east of State Road 905 which KLI proposes to preserve in a natural, although diked, condition. Hardwood hammocks such as exist in the Florida Keys Area of Critical State Concern are unique in North America. There is a long history of these terrestrial, botanical communities being diminished. Only a small portion of hardwood hammock area that was originally in the Keys remains. The finest examples of these communities that remain in the Florida Keys, and indeed in North America, are on Key Largo. Such communities serve numerous beneficial and environmental functions. They serve to retain soils, limit discharge of pollutants into surrounding water bodies, support wildlife communities, and protect wetlands from upland areas. Preservation of hardwood hammocks is aesthetically important, but is also important to protecting the environment of the Keys. The hammock areas provide food and shelter for a wide variety of animals, birds, and plants. At least 14 species of endangered, threatened, or rare species or species of special concern were observed on the project site. In addition, 7 species of birds that are either threatened, rare, or species of special concern; and 2 species of reptiles that are threatened are known to make use of the site for habitat. The portion of the property to the west of State Road 905 forms a part of the very limited habitat that exists for crocodiles in North America. Development of the KLI property can be accomplished in such a manner as to minimally impact the important hardwood hammock and wetland areas. KLI does propose to leave wetland areas undisturbed. If the hardwood hammocks were also left undisturbed, threatened and endangered wildlife species could continue to use the site as habitat, and the various beneficent environmental functions that hardwood hammocks perform would not be KLIminated. To accomplish these ends, the portion of the property to the west of State Road 905 should not be developed. The hardwood hammock areas that have been illegally cleared should be allowed and encouraged to reestablish themselves. The hardwood hammock areas that still exist to the east of State Road 905 should not be disturbed. Roadways and other structures should be reconfigured so as to not cross the hardwood hammock areas, and they should not be cleared. The harbor and upland lake that presently exist on the KLI site were constructed prior to KLI purchasing the site. The harbor was constructed in such a manner -- it is much too deep -- that it causes adverse water quality consequences in surrounding waters. As a condition for receiving approval of its preliminary development plans, KLI agreed to back fill the marina so that adverse water quality impacts would be reduced. KLI has pursued a permit to accomplish this operation from the Department of Environmental Regulation. The permit has been issued. If the back filling of the marina is not accomplished in conjunction with the proposed development, the adverse water quality consequences of the marina will be increased because more boat traffic will be brought to the marina as a result of development. As a part of its overall development plans, KLI proposes to construct docks in the presently existing upland lake and to provide access for boats docked in the lake to the harbor through some sort of tram system. The developer also proposes to construct two additional upland lakes on the east side of State Road 905. These construction activities are not a part of Phase 1A of the proposed development. Utilizing the present upland lake as a docking facility and constructing two new upland lakes is likely to have adverse water quality consequences. Even if properly vegetated, it would be difficult to maintain good water quality in the lakes. water in the lakes interacts with surrounding water bodies through groundwater percolation. Therefore, surrounding water bodies and groundwater in the area are likely to be adversely impacted. The preliminary development plans do not include an explanation of how water quality in these upland lakes will be maintained. Without such assurance being provided, development of the upland lakes should not be approved. KLI has plans to make a considerable expenditure to revegetate developed areas. KLI has told local zoning officials that it will revegetate the area with native species so that minimal fertilization will be required and so that the character of the area will be maintained. While there have been such statements made, it does not appear that any clear requirement to that effect has been imposed on KLI. It is appropriate that KLI's revegetation plans be required to utilize native vegetational species. KLI has invested considerable sums of money in obtaining the property and in paying for professional engineering, architectural, and legal services. After Monroe County approved its preliminary development plans, KLI changed its financing arrangements in order to obtain additional money for planning and initial development efforts. The change in financing arrangements was less advantageous to KLI from the perspective of KLI backing out of the project if for any reason development does not occur. It appears that the decision to restructure the financing was made in part based upon a statement made by an attorney who worked for Monroe County. There is no evidence from which it could be concluded that any official of the Department of Community Affairs or of the Florida Land and Water Adjudicatory Commission made any representation of any kind to KLI or any of its representatives, neither does it appear that the attorney had actual or apparent authority to bind even Monroe County to any course of conduct. It does not appear that the development proposed by KLI would adversely impact the provision of government services or require that any public facilities be expanded. Local officials appear assured that presently existing roadways, solid waste facilities, freshwater supplies, schools, and recreational facilities will not be overburdened as a result of the development. No evidence was presented at the hearing from which it could be concluded that the proposed project, either itself or in combination with other proposed projects, would unduly burden such public facilities. The Department of Community Affairs has asserted that the procedures followed by the Monroe County Planning and Zoning Board and by the Board of County Commissioners of Monroe County do not comport with requirements of law. To the `extent that any such failures have been established, there is no evidence from which it could be concluded that either the fairness of the proceedings or the correctness of the action taken by local government officials was in any way impaired by the errors. It does appear that all persons who wished to address the local zoning board and the local board of county commissioners were not allowed as much time to make presentations as they desired. It does not, however, appear that local officials prevented anyone from making presentations about the proposed project. The Department has asserted that the proposed development could adversely impact the John Pennekamp recreation area, which is located nearby. It does appear that the project would generate more boating activity in the region and that boating activity is potentially injurious to the dKLIcate reef ecosystems located underwater at Pennekamp. Increased boating activity at Pennekamp is being generated from numerous sources, including from the recreation area itself. Additional activity as a result of the proposed project would be negligible. Monroe County has adopted its Ordinance No. 21-1975, which pertains to the regulation of major development projects in Monroe County. The ordinance has been codified into Article VII (Sections 6-221 through 6-245) of the Monroe County Code. The County has also adopted a comprehensive plan which includes provisions relating to preservation of beaches and shorKLInes, and trees and vegetation. The Florida Administration Commission has adopted rules relating to developments in the Florida Keys Area of Critical State Concern. See: Rules 27F-8 through 27F-14, Florida Administrative Code.
