The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005.
The Issue Whether Respondent violated Subsections 481.325(1)(g), 481.325(1)(j), 481.325(1)(k), and 455.227(1)(a), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Maestre was licensed as a landscape architect in the State of Florida, having been issued license number LA 00001744. Maestre provided landscape architectural services through Tropicare Landscape, Inc. (Tropicare). Tropicare has never possessed a certificate of authorization for the practice of landscape architecture in the State of Florida. Stephen Kidd (Kidd) and his wife Jaqueline Hansen (Hansen) contacted Maestre to help them with a landscaping project in their backyard. Hansen found Maestre using the yellow pages in the telephone directory. Maestre came to the Kidd/Hansen residence sometime in June 2001 to discuss the project. Hansen provided Maestre with a sketch for the design of the project, which included a deck, a koi pond, a stream, and a waterfall. Hansen paid Maestre $40 for the consultation, although she and Kidd understood that the initial consultation was to be free. On June 15, 2001, Kidd and Hansen entered into a contract with Maestre for landscape architectural design services. The cover letter which accompanied the contract was on Tropicare letterhead. The contract provided that Maestre was to "examine surrounding conditions, locate and identify all existing amenities for the purpose of producing the necessary site plan." After the owners approved the preliminary phase, Maestre was to prepare working plans, which were to include the following: Planting: Shall name quantity and size all plantings {proposed & existing}, as well as depicting all proposed site amenities (sitting areas, walkways/deck, pond . . .) for various areas of the project site. Lighting: This plan shall show the location and type of light fixture to be used as decorative landscape lighting. Wiring and routing of electrical circuits are not part of this plan. If practical, this information will be depicted on the captioned planting plan. Layout & Details: As required, for all proposed hard-scape items referenced above, and such elements of the design solution proposed, shall be provided as needed for construction. The contract provided that Maestre may provide other services as requested by the owners such as obtaining subcontractor bids and making changes to completed working drawings. Maestre's role during the project installation was set forth in the contract as follows: Upon authorization of budgets & estimates by Owner, Tropicare Landscapes, Inc., shall implement and contract the Project, as phased by the Owner. The Landscape Architect shall oversee all work in progress. [50% of the Professional Fees disbursed by Owner as shown in Section II.b, shall be credited appropriately towards project installation.] Maestre's hourly fees were to be billed at $45 per hour for the preliminary work and other services and $65 per hour for the working plans. Hansen and Kidd provided Maestre with a copy of the deed restrictions for the subdivision in which the Kidd/Hansen residence was located. Kidd and Hansen received a statement from Maestre dated June 26, 2001, for $287.50, which represented 3.5 hours for site analysis and conceptual plan at $45 per hour and two hours for working drawings and base sheets at $65 per hour. Hansen paid Maestre $300 based on this statement. On his second meeting with Hansen, Maestre provided her with a conceptual plan, which was similar to the drawing that Hansen had originally provided to Maestre, except that Maestre had included gravel in some open areas where Hansen had wanted sod. Maestre sent Kidd and Hansen a statement dated July 5, 2001, for $393.75, which represented 6.25 hours for working drawings of the layout and planting design. Hansen paid Maestre $400 based on this statement. Kidd and Hansen provided Maestre with a copy of the survey of the property after the first site plan was completed. Maestre sent a statement to Kidd and Hansen dated July 10, 2001, in which he charged them $2,391.25, representing a project implementation deposit of $2,115 and 4.25 hours for working drawings for a new layout. Hansen paid Maestre $3,000 based on this statement. By letter dated July 11, 2001, Maestre advised Kidd and Hansen that the $2,115 deposit would be applied toward implementation of the project and that 50 percent of the professional fees paid for the working drawings would be credited toward project implementation. By statement dated July 23, 2001, Maestre charged Kidd and Hansen $650 for the working drawing of the final plan, representing ten hours of work. Hansen paid Maestre $650 based on this statement, bringing the total amount paid to Maestre to $4,390. By mid-August 2001, Hansen became nervous because no physical work was being done on the project. Maestre had not given her a project schedule, and she was uncomfortable with his work on the project. On August 20, 2001, Hansen advised Maestre by telephone that she and her husband no longer desired to continue with the project due to their financial circumstances. Kidd and Hansen were not having financial problems, but Hansen did not want to tell Maestre that they did not trust him. By letter on Tropicare letterhead dated August 20, 2001, Maestre advised Kidd and Hansen that the deposit that had been made for the installation had been applied towards an oriental wooden bridge and bamboo plants. Neither the bridge nor the purchase of the bamboo had been authorized by Hansen or Kidd. The letter included a statement of the costs for the bamboo and bridge and for six hours of additional services for meeting with potential subcontractors and for blueprints. The charge for the bamboo was $2,016, and the charge for the bridge was $372.80. As of the final hearing, Kidd and Hansen have not received either the bridge or the bamboo. By letter dated August 22, 2001, Hansen and Kidd advised Maestre that they were terminating the contract and wanted their money returned minus the money that had been paid for the plans. The correspondence and statements from Maestre to Kidd and Hansen were either on Tropicare's letterhead or a hybrid letterhead which showed both Maestre and Tropicare. It is clear that Tropicare was offering landscape architectural services with Maestre as the registered landscape architect. Maestre produced a layout plan dated August 2, 2001, and a plan with a plant list and construction notes (plant plan) dated June 5, 2001, with revisions on July 10 and 23, 2001. The plans were not in conformance with the deed restrictions for the subdivision in which the Kidd/Hansen residence is located. The deed restrictions required that "no structure of any kind, including but not limited to dwellings, garages, swimming pools, and screened cages, shall be erected nearer . . . than 8 feet from any side lot line, nor nearer than 15 feet from the rear lot line of any lot." The planting plan last revised on July 23, 2001, shows a mansard screened enclosure with eight-foot set backs from the rear lot line and a side line. The layout plan shows a setback of less than five feet from the mansard enclosure and the rear lot line. Both plans are in violation of the deed restrictions which require a 15-foot set back from the rear lot line. The waterfall structure has a five-foot set back from the rear lot line on the layout plan and an eight-foot set back on the planting plan. Both plans are violations of the deed restrictions requiring a 15-foot set back. The planting plan should contain the common names and the botanical names of the plants to be used in the project. The planting plan prepared by Maestre did not contain both the botanical and common names of the plants. The planting plan should specify the size, spacing, quality, and quantity of the plants. Maestre's planting plan did not specify the size, spacing, quality, or quantity of the plants to be used. The inadequate plant and planting specifications would not have permitted contractors to bid appropriately in the interests of Kidd and Hansen. Maestre's plans should have included specifications of location or of the type, size, and spacing of beams, joists, decking, and fasteners necessary for the construction of the deck structure. The plans prepared by Maestre did not include this information, which would be necessary to bid the deck portion of the project. Plans for water features such as the waterfall for the Kidd/Hansen residence should consider spray height or water fall, free board and operating water levels, water depth, water level and wave action, pool shape, color, materials for pipes and fittings, water volume and pressure, pump sizing, pump types and filtration systems. Maestre's plans did not specify or inadequately specified the characteristics of water flow, the water depth of the pond, pool shape, weir elevations, height of the waterfall, waterfall structure and components, pumping requirements, characteristics of the piping, and pump specifications. Maestre's plans for the deck were inadequate. The plans did not include specifications or details such as type, size, and spacing of beams, joists, decking, and fasteners for the construction of the deck structure. Additionally, the plans did not include the type of deck finish that would be applied after construction. The plans were inadequate in that they did not show how the bamboo screens were to be constructed or the height of the structures. This information would have been necessary to bid the bamboo structure portion of the project. Maestre met with potential subcontractors. The evidence does not clearly and convincingly show that these meetings were improper. However, Maestre did improperly charge Kidd and Hansen for the time he spent meeting with the subcontractors. Maestre charged Kidd and Hansen six hours for meeting with potential subcontractors at the rate of $65 per hour. The contract specified that the rate for such services was $45 per hour.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manny F. Maestre violated Subsections 481.325(1)(g) and (j), Florida Statutes (2001); finding that he did not violate Subsections 481.325(1)(k) and 455.227(1)(a), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(g), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(j), Florida Statutes; issuing a written reprimand; and imposing two years of probation with conditions as the Board of Architecture and Interior Design deems necessary. DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 23rd day of February, 2004. COPIES FURNISHED: Manny F. Maestre, Jr. Post Office Box 20816 Bradenton, Florida 34204 Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues for determination are whether, as alleged in the Amended Administrative Complaint, Walter L. Moyer, violated Section 472.033(1)(g) and (h) F.S. and Rule 21 HH-2.01(3) by performing a land survey in a negligent or incompetent manner, without due care and without due regard for acceptable professional standards, and violated Section 472.033(1)(e), (g) and (h) F.S., and Rule 21HH- 2.01(3) and (5) FAC, by providing a false or deliberately inaccurate survey sketch to a client on two separate occasions.
Findings Of Fact Walter L. Moyer has been licensed by the State of Florida as a registered surveyor from approximately August 1977 until present, and holds license number LS 0002828. His address for license purposes is Palm Bay, Florida, in Brevard County. His practice as a surveyor has been primarily in construction-related surveys and lot surveys, with very few parcel surveys. THE CHILCOTT SURVEY (COUNT I) In June 1984, Charles and Robin Chilcott purchased property on Grant Road, in Brevard County, consisting of approximately 1.44 acres of undeveloped land. The Chilcotts acquired the parcel with the intent to construct a home and keep their horses. Shortly after purchase, the Chilcotts retained Moyer to prepare a boundary survey of the parcel. The cost of the survey was $315.00 including $7.50 extra cost for two concrete monuments, rather than iron rods, at the front corners, as requested by the Chilcotts. The survey was performed on July 27, 1984, and Moyer was paid. He furnished the Chilcotts several sketches of survey which he had signed and sealed. In 1985, the Chilcotts hired a contractor, Casey Jones, and commenced building their house. At the request of Casey Jones, Moyer prepared both the foundation and final surveys. These two surveys were added to the boundary survey on September 26, 1985, and November 23, 1985, respectively. At the time that the field work on the foundation and final survey was done, Moyer detected no problems with the monumentation he had initially set in the boundary survey. He did not see any evidence that the monuments had been disturbed. The final survey shows the house to be 17.35 feet inside the east lot line. The Chilcotts wanted at least that distance because the area is zoned agricultural and they did not want the neighbor's livestock close to the house. They also understood that the county required a minimum 10-foot set-back. In connection with the construction of their home, and in reliance upon Moyer's survey identifying their property's boundary, the Chilcotts installed a well and a fence and had approximately 800 feet of sod planted along the east boundary. The Chilcotts have since learned that those improvements are not on their property and that their house is, in fact, only 7.25 feet from the lot line. In May, 1986, David Rothery, a Florida licensed land surveyor, performed a boundary survey of the Donald Waterbury parcel adjacent to and just east of Chilcott's land on Grant Road. Rothery checked and double-checked his field measurements and still found a ten foot discrepancy in the placement of the monuments on the eastern corners of the Chilcott parcel. Those monuments were ten feet too far to the east and were, therefore, placed ten feet within the Waterbury boundaries. He did not observe any indication that the monuments had been moved, and when he placed his corners for the proper boundaries, he found no evidence that monuments had ever been there before. As required, the monuments placed by Moyer had his identification on them. Rothery put a dotted line on his survey with the notation, "Apparent survey error on adjoining property by Walter Moyer Land Surveying". Rothery also called Moyer and told him about the discrepancy. On the morning of May 10, 1986, Moyer went back out to the Chilcott property and discovered that his monuments were ten feet too far to the east. He was in the process of moving them when he was confronted by Charles Chilcott. He told Chilcott that an error was made, that he "dropped ten feet". There was some discussion about possible remedies such as paying for the well and fence to be moved or buying the ten feet from Waterbury. Chilcott did not let Moyer finish moving the monuments. That night, Chilcott, who had never met Moyer before, but had only communicated by phone or in writing, called Moyer's house and confirmed that it was the same person he had seen moving the monuments. That was the last time Chilcott spoke with Moyer. Chilcott called Moyer's house several times over the following months, but always reached Mrs. Moyer and his phone calls were not returned. Moyer did contact Waterbury about purchasing the ten foot strip. Waterbury was concerned about how this would affect his eventual ability to build on his lot and refused to sell. Waterbury is not pressing the Chilcotts about their encroachments; he simply expects to have the matter resolved sometime in the future. By a letter dated 8/18/86, the Chilcotts requested damages of $2,500.00 from Moyer, including an estimate of costs to move the well, fence and a power pole and to replace sod. On September 13, 1986, another letter from Chilcott to Moyer listed the same plus additional damages, for a total demand of $4,025.00. In a letter to Chilcott dated August 27, 1987, Moyer offered to pay the application fee to seek a variance from the setback requirement and offered to provide a final survey and half the cost of moving the well. The letter denied that the problem was Moyer's fault and said that Moyer believes that the markers were moved between the date the survey was completed and the date of the foundation. The Chilcotts rejected that offer. No evidence in this proceeding supports Moyer's contention that the Chilcotts or someone else moved the monuments he originally set in 1984. The evidence does establish a strong circumstantial basis for finding that the monuments were not moved, but were incorrectly placed by Moyer at the time that the boundary survey was completed. Setting the monuments properly is an essential component of conducting a boundary survey. Moreover, when a subsequent final survey is done, it is the duty of the surveyor to assure that the original monuments have not been disturbed during construction and site work by a contractor. Assuming that Moyer is correct in his contention that the monuments were moved after they were set by him, but before the foundation was placed, it was his duty to discover that fact. He did not, since his final survey shows that the house is 17.35 feet from the boundary, whereas the house is, in fact, approximately seven feet from the adjoining property. Except when witness monuments are used, as when a tree or other obstruction sits on a boundary corner, it is a violation of standard surveying practice to place a monument other than where it is shown on the survey drawing. In this instance, the drawing is accurate; as described in the Chilcott deed, the northeast corner of their property is 600 feet from the section corner. There was no need for witness monuments here; yet the east boundary monuments are ten feet off and are 590 feet from the section corner. There is no overlap in the legal descriptions of the Waterbury and Chilcott properties to account for the overlap in monuments discovered by David Rothery, the Waterbury surveyor. Surveying is a system of checking measurements. Both human and equipment errors in the profession are neither rare nor entirely common. Even the most up-to-date electronic equipment is subject to discrepancies. Checking and rechecking field measurements helps alleviate errors. The minimum technical standards developed by and for the profession are intended to reduce errors, although it is not clear that slavish adherence to those principles will absolutely prevent any possibility of error. When errors do occur, the standard of the profession is to work with the client to resolve the problem. In some cases, this may mean the purchase of the client's property or adjoining property if the party is willing to sell. Moyer's limited offers do not meet the established standards of the profession. THE BURGOON-BERGER SURVEYS COUNTS II AND III On August 21, 1986, Moyer signed and sealed a survey sketch of Lot 22, Block 2245, Port Malabar, Unit 44, in Brevard County Florida for Burgoon-Berger Construction Co. The survey of Lot 22 showed the drawing of an improvement within the boundaries of the lot with a notation, "FOUNDATION FF ELEV 25.86." Next to the date on the survey is the abbreviation, "FND". The survey was submitted to the Palm Bay Building Department on August 26, 1986, the day before the pre-slab inspection. A pre-slab inspection is done before the slab is poured; therefore, at the time the survey was signed and sealed, the concrete slab had not yet been poured. On October 20, 1986, Moyer prepared a sketch of survey of Lot 7, Block 1054, Port Malabar Unit 20, in Brevard County, Florida for Burgoon-Berger Construction Co. The survey sketch indicated an improvement within the boundaries of the lot, with the notation, "FOUNDATION FF ELEV 26.87". Next to the date on the survey is the notation "FND". The survey was submitted to the City of Palm Bay on October 28, 1986. The pre-slab inspection was done by the City on October 22, 1986. Again, the survey was signed and sealed before the slab was actually poured. The notation, "FOUNDATION FF ELEV", is commonly understood to mean "foundation, finished floor elevation". "FND" is commonly understood to mean "foundation". Moyer, himself, has used both notations to signify those common usages. Foundation is generally accepted in the land surveying profession to mean something permanent and constructed, like a concrete slab, not bust the ground or wooden form boards used to guide the pouring of the slab. A survey which depicts an improvement with the note, "FOUNDATION FF ELEV", when the floor has not been finished misrepresents the status of the construction of that project. Reviewing personnel at the Palm Bay Building Department rejected the surveys and alerted the City's Flood Plain Administrator. That individual, Maria Parkhurst, reported the incidents to the Department of Professional Regulation. Lots 22 and 7 are both in the flood plain and slab elevation is significant, as the City must assure that federal maximum elevation requirements are met. The City requires the submission of surveys containing slab elevation data. Banks also rely on foundation surveys submitted by contractors in order to determine the state of construction before the release of a foundation draw. That is, before the contractor is entitled to partial payment for his work, the bank needs to know if the work has been done. Both Moyer and his client, Bergoon-Berger, intended the notation in these cases to mean "finished form", not "finished floor". Burgoon-Berger had Moyer perform a survey after the wooden form boards were constructed, but before the concrete slab was poured, in order to assure that the house was placed properly on the lot. The survey was somehow submitted prematurely to the city, whereas because Moyer and his client intended that the poured slab be re-surveyed before the sketch was submitted. When the survey for Lot 7 was resubmitted to the City on October 31, 1986, the slab had been poured and, while the elevation remained the same, the size of the fireplace foundation was slightly smaller. The notation, "FOUNDATION FF ELEV" remained the same, with nothing on the face of the survey sketch to indicate that this later version was the finished floor, rather than the finished form. Moyer no longer uses these abbreviations. A survey is not valid until it is signed and sealed, but once it is signed and sealed, it signifies to the client and to the public at large that the information provided therein is true and accurate. The standard of professional land survey practice dictates that abbreviations which are not commonly accepted should be explained on the face of the drawing. The professional standards also dictate that even if a client asks for certain information on a survey, in anticipation that other third parties might rely on the survey the professional should either refuse to indicate improvements that do not exist yet or indicate unambiguously that the improvements are intended, but still under construction. Notwithstanding Bergoon-Berger's and Moyer's intentions with regard to the two surveys at issue, Moyer failed to meet professional standards when he signed and sealed those surveys and released them to his client.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final Order be issued finding Respondent guilty of Counts I, II and III of the Amended Administrative Complaint and placing him on probation for a period of two years, under such conditions as the Board may deem appropriate, including, but not limited to the participation in continuing professional education courses and the pursuit of a reasonable resolution to the Chilcott's boundary problems arising from the Respondent's negligence in performing their survey. DONE and RECOMMENDED this 3rd day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1987. APPENDIX The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner (Count I) Adopted in Paragraph 1. Adopted in Paragraph 2. 3-4. Adopted in Paragraph 3. Incorporated in Part in Paragraph 1., as to the limitation of experience, otherwise rejected as immaterial. Rejected as immaterial. Adopted in Paragraph 3. Adopted in part in Paragraph 3, otherwise rejected as unnecessary. 9-10. Rejected as unnecessary. Adopted in Paragraph 12. Rejected as unnecessary. Adopted in Paragraph 4. 14-18. Adopted in Paragraph 3 and 4. Adopted in Paragraph 11. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 11. 23-28. Adopted in Paragraph 7. Rejected as unnecessary. Adopted in Paragraph 7. Adopted in part in Paragraph 8, however the accurate date is May 10, 1986, and the evidence is inconclusive as to whether Moyer spoke to either of the Chilcotts before coming back. This fact is not material. 32-33. Adopted in Paragraph 8. 34. Rejected as cumulative and unnecessary. 35-37. Adopted in substance in Paragraph 8. Rejected as cumulative and unnecessary. Adopted in Paragraph 9. Adopted in part in Paragraph 9, otherwise rejected as unsubstantiated by competent evidence and immaterial. Adopted in Paragraph 6. 42-43. Rejected as cumulative. 44. Adopted in substance in Paragraph 10. 45-47. Rejected as cumulative. 48-49. Adopted in Paragraph 12. 50-51. Rejected as cumulative and unnecessary. Adopted in Paragraph 13. Rejected as cumulative. 54-55. Adopted in Paragraph 14. (Counts II and III) Adopted in Paragraph 1. Adopted in Paragraph 15. Adopted in Paragraph 16. 4-6. Adopted in Paragraph 17. Adopted in Paragraph 20. Adopted in Paragraph 21. Rejected as unnecessary. Adopted in Paragraph 18. Adopted in Paragraph 25. Adopted in Paragraph 18. Rejected as cumulative. Adopted in substance in Paragraph 25. Rejected as unnecessary. Adopted in Paragraph 23. Rejected as unnecessary. Adopted in Paragraph 25. Respondent Adopted in Paragraph 1. 2-5. Addressed in Background. Adopted in Paragraph 2. Adopted in Paragraph 3. 8-11. Rejected as immaterial. 12-13. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 7. Adopted in part in Paragraph 7. Adopted in Paragraph 7. Rejected as contrary to the weight of evidence, except for the fact that the Chilcott house is 7 feet from the boundary. That fact is adopted in Paragraph 6. 19-20. Adopted in substance in Paragraph 8. Adopted in Paragraphs 9, 10, and 14. Adopted in Paragraph 10. Rejected, except as adopted in Paragraph 10. 24-25. Rejected as unnecessary. Adopted in Paragraph 11. Adopted in part in Paragraph 14, otherwise rejected as unsupported by the weight of evidence. Adopted in substance in Paragraph 13. Rejected as immaterial. While the boundary depiction is accurate, the placement of the house is in error on the final and foundation surveys and, of course, the markers are erroneously set. 30-33. Addressed in Background. 34. Adopted in Paragraphs 15 and 17. 35-36. Adopted in part in Paragraph 22, otherwise rejected as contrary to the weight of evidence. 37-38. Rejected as immaterial. 39. Adopted in Paragraphs 19 and 22. 40-44. Rejected as immaterial. COPIES FURNISHED: DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JAMES P. BEADLE, ESQUIRE 5205 BABCOCK STREET N. E. PALM BAY, FLORIDA 32905 ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . 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.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact The Respondent is registered with the Board as a land surveyor. He holds registration number 2027. During October, 1976, Harold J. Read, Jr., a construction contractor, retained the Respondent to make a survey of lots 9067 and 9068, on block 294, in the Florida Shores subdivision, unit number 10, located in Volusia County, Florida. The lots were owned by Read, and it was his intention to construct a house on the lots for resale. Read needed the survey in order to clear the land, and to properly locate the house on the lots. On October 8, 1976, a survey team employed by the Respondent went to the site to perform the survey. The lots are located on Royal Palm Drive. The southeast corner of the lots is located 120 feet from the corner of Royal Palm Drive and 26th Street. The survey team located the concrete monument or survey marker at the northwest corner of Royal Palm and 26th Street, and set a "tin tab" in the middle of Royal Palm Drive extending directly across the street from the permanent monument. A "tin tab" is a metal disc approximately twice the size of a quarter which is used by surveyors to make appropriate markings in the middle of streets. The tin tab is nailed into the street. The survey team then measured 120 feet along the center of Royal Palm Drive and set a tin tab which was directly across from the southeast corner of the lots. The team then measured 80 feet further along Royal Palm Drive and set a tin tab to designate the northeast corner of the lots. All of the lots in the Florida Shores subdivision are 40 feet by 125 feet, therefore the two lots owned by Read had an 80 foot frontage on Royal Palm Drive. The team measured directly from the tin tabs over to the edge of the Royal Palm Drive right-of-way and located the corners of the lots. Spaces were cleared and iron pipes were placed in the ground to mark the corners. Next to each pipe, a four foot long piece of wood lath was placed approximately eight inches in the ground, and yellow flags were tied to the stakes. These stakes were placed at the corners in order to allow the owner to easily see the locations of the corners. Four foot long stakes were used because the lots had not been cleared and the growth was rather heavy. When the southeast and northeast corners were located in this manner, the survey team performed a similar operation to locate the southwest and northwest corners. The team did not determine these corners by measuring 125 feet from the eastern corners because of the thickness of the underbrush. Instead, the team measured down 26th street 125 feet, and set the western corners walking along a cleared electrical wire right-of-way. Iron pipes and wood stakes with yellow flags were placed at each of the western boundaries. The survey team was at the site for approximately one and one half hours. Iron reinforcing rods which appeared to be markings from previous surveys were found at at least two of the corners, and in order to set the iron pipes, the survey team needed to clear underbrush. On October 13, 1976, Harold Read, several of his employees, and a dozer operator who he had hired to clear the lots appeared at the lots to clear them, and to locate the house. They found stakes somewhat shorter than those placed by the surveyors. One of the Board's witnesses testified that these stakes had yellow flags tied to them, but the rest of the witnesses testified that the flags were orange. At least two, and possibly three of the stakes were located next to iron pipes which appeared to be the corner markers. Read assumed that these stakes marked the corners, and he instructed the dozer operator to clear the property accordingly. After the lots were cleared, Read, with his employees, located the house on the lot so that there would be approximately ten feet between each end of the house and the northern and southern boundaries of the lots. Read then commenced to build the house, and in January, 1977, the house was nearly completed. In order to complete financing arrangements the lending institution that had been utilized by Read requested that the lots be resurveyed in order to assure that the house was appropriately located. On January 29, 1977, the Respondent went to the lots to perform the resurvey. He found that the lots had been cleared twenty feet too far south, and that the house had been located so that it encroached by ten feet into the lot which directly adjoined Read's lots to the south. He checked and found that the tin tabs placed by his crew were still in the center of Royal Palm Drive designating what would have been the correct boundaries of the lot. He did not find the pipes that would have marked the correct corners, so he reset pipes at the appropriate corner locations. Thereafter the Respondent checked the information with his survey team, and verified that the original survey had been done correctly. He then contacted Read about the discrepancies. Read, the Respondent, and several others visited the site later that day. The Respondent denied, and continues to deny, that the original survey was conducted improperly. Read has consistently maintained that he correctly followed the stakes that were at the site. No explanation was offered at the hearing, and it does not appear that any of the parties have evidence which would explain how the stakes and pipes came to be moved from the correct locations on October 8, when the survey was conducted, to incorrect locations on October 13, when the lots were cleared, and the house was located. It affirmatively appears from the evidence that the Respondent's crew properly performed the survey and that the Respondent was not responsible for the stakes being moved. Evidence contrary to this finding has been considered and rejected.
Findings Of Fact At all times relevant hereto, Respondent, George May, was a licensed real estate broker, having been issued license number 0056693 by Petitioner, Department of Professional Regulation (Petitioner's Exhibit 27). Respondent, Marie L. Bundick, was a licensed real estate salesman having been issued license number 0185873 by Petitioner (Petitioner's Exhibit 29). During the time the events herein occurred May was the active broker with, and Bundick a salesman for, Commercial Equity Corporation, 2450 East Commercial Boulevard, Fort Lauderdale, Florida. Between December, 1976, and June, 1977, May formed the following corporations: A-1989 Corporation, Future 5 Corporation and 8-Villas Corporation (Petitioner's Exhibit 30). He served as president of these corporations until they were involuntarily dissolved by the Department of State for failure to pay fees due that Department. In early 1976, May ran an advertisement in a Fort Myers newspaper expressing a desire to purchase acreage in that area. In response to that advertisement, Henry Minster, a Bonita Springs real estate broker, contacted May and advised him he had various parcels of property for sale in Lee County, including undeveloped acreage. In May, 1976, Minister, May and an undisclosed third party visited an unimproved tract of land in what is known as the East Bonita Drainage District. The property in question is approximately 4 air miles northeast of Bonita Springs and is located within Sections 16 and 21, Township 475, Range 26E, Lee County, Florida. It lies around 8 air miles from the Gulf of Mexico; by automobile the distance is approximately 17 miles. Because the area was not surveyed, and there were few, if any, signs on the property in that area, a common starting point to view the property was a television tower in the northeast quarter of Section 30, where the graded road ended. In order to reach the boundary of Section 21, one had to travel approximately one mile east- northeasterly from the tower through Section 29 on trails and other undeveloped land. Section 16, which lay directly north of Section 21, was virtually inaccessible by automobile or on foot. Access from the tower to the lower corner of Section 21 could not be had in a conventional automobile without exceptional weather; however, Minster, May and the other person were in a 4- wheel drive vehicle and proceeded generally east-northeasterly approximately one mile on a trail until they reached a point very close to the southwest corner of Section 21. Then they got out of the vehicle and viewed the property in the immediate area. Although they were at or very close to the western boundary of Section 21, May was never shown any property further eastward, nor was he taken to Section 16 which was approximately one mile north of there. However, Minster did point out the general area where the property in Sections 16 and 21 were located, and the type of topographical characteristics to be found in both Sections. He further advised May that there was no reasonable access to the property, no roads had been built, that it was covered with cypress and that the land was under water during part of the year. Minster also advised May that if he planned to subdivide the property, certain registration requirements with the State must be met, and that zoning requirements with Lee County must be adhered to before development of the property could begin. The property that May was to subsequently purchase was approximately 17 feet above sea level, and was generally covered in varying degrees with cypress, pine trees and palmetto (Petitioner's Exhibit 25). U.S. Geological Maps indicate the predominate characteristic of Sections 16 and 21 to be a swamp or marshland (Petitioner's Exhibit 5). There is no dispute that much of the property was under water during the rainy season. On August 23, 1976, May negotiated the purchase of 100 acres in Section 16 from Minster (Petitioner's Exhibit 6). On January 23, 1977, an additional purchase of 85 acres in Section 16 was made by A-1989 Corporation, of which May was president (Petitioner's Exhibit 7). On July 21, 1977, A-1989 Corporation purchased another 40 acres in Section 16 (Petitioner's Exhibit 8). Future 5 Corporation, of which May was president, made a purchase of 100 acres in Section 21 on October 6, 1977 (Petitioner's Exhibit 9). A final purchase of an undisclosed number of acres in Section 21 was made by 8 Villas Corporation, of which May was president, on February 27, 1978 (petitioner's Exhibit 10). A sixth contract to purchase land in August, 1978, in Section 10 was entered into by the parties but the sale was never consummated (Petitioner's Exhibit 12). Collectively, the above purchases of land roughly encompassed the southern one-half of Section 16 and the southern one-third of Section 21, Township 47S, Range 26E. After May began making purchases of the acreage from Minster, he initiated a sales campaign through newspaper advertisements to sell the property in 2 1/2 acre tracts to the general public. These sales were conducted through his realty firm, Commercial Equity Corporation. Although it is alleged that advertisements appeared in "various news publications in and about Broward County", only the following advertisements in the Pompano Beach Shoppers' Guide were made a part of the record: "2 1/2 acres: Invest for tomorrow today, miles of spectacular beaches, south Florida's fastest growing area. Near golf, best fishing,..." "2 1/2 acres in sun and fun Florida, watch yourmoney grow, $65.91 per month $950 down near beaches..." "Live again, get away, beautiful home site, near beaches, good fishing, exc. schools. South Florida,..." "2 1/2 acres, no qualifying, booming South Florida near beautiful beaches, only 7 pct. interest, low payments, $65.91 month. Parks, boating, highway and tax deductible. Be smart, buy today." (Petitioner's Exhibit 20) Under each of the above advertisements were telephone numbers which enabled the caller to reach either May or his secretary. After the caller gave his name and number, an associate was instructed to return the call and arrange a meeting. The above advertisements, or ones similar thereto, were read by, inter alia, William C. Park and Rahlyn Ramsaran who made inquiries concerning the possible purchase of land. Park was referred to Marie L. Bundick while Ramsaran was referred to Edmond Martell, both of whom were salesman for Commercial Equity Corporation. In June, 1978, Park, Bundick and another Commercial salesman (Bill Soloman) visited the area in question to view the property. They first drove to the television tower in Section 30, and then continued eastward on a "farm access road" until they reached a drainage canal. After following the drainage canal for approximately one-half mile they reached what purportedly was property similar to that which was for sale. It was represented to Park that they were "very close" to where Park's property was actually located, but in no event were they more than a 5-acre tract away. Park noticed a flooded area approximately 1/4 mile away and inquired of Bundick if the property he was buying was within the flooded area; she answered it was not. Based upon these representations, Park later agreed to purchase two tracts of acreage (5 acres) in Section 21 for $14,000 from 8-Villas Corporation (Petitioner's Exhibit 24). Park, a professional diving instructor, purchased the property with the expectation of eventually constructing a diving school on the land. These hopes eventually evaporated upon discovering the true character of his land. In December, 1978, Park received a telephone call from Department Investigator Stevens who advised Parks that other investors had complained of misrepresentations by May and were attempting to get refunds from May on their purchases. He asked Park to show him the property he had been shown by Bundick in June. Park and Stevens visited the area on December 6, 1978, and after seeing the property a second time in conjunction with maps, Park concluded the property shown to him and that actually purchased were not the same. He also concluded that a diving school could not be built on such low-lying property. Park later received a refund on his purchase from May after a Department investigator visited May concerning the sale. After responding to May's advertisement, Ramsaran visited the property in question in April or May, 1977, with Edmond Martell, a salesman for Commercial. They drove to the television tower in Section 30, and then walked approximately one mile into the rough terrain. Martell advised Ramsaran that the property he was going to purchase began within a couple of hundred feet from where they were standing. Based on that representation Ramsaran purchased three tracts of property in Section 16 for $35,000 on May 11, 1977 (petitioner's Exhibit 26). Because Section 16 was at least one mile north of where Ramsaran and Martell had originally stood when viewing the property, the representation by Martell to Ramsaran was clearly false. Ramsaran revisited the Bonita Springs area on several occasions shortly after that and began making inquiries concerning where his property was actually located. He also studied a map of the area to pinpoint its exact location. After becoming concerned that he may have bought something different from what he had been shown, he called Martell who advised him not to worry and to meet with May to discuss the matter. On May 18, 1977, Ramsaran visited May's office to complain that he had been "taken". May told him it was not a swamp, that it was high and dry and was "good property". He confirmed this representation in a letter given to Ramsaran which stated as follows: "This land is nor is it under water. This land is approximately 17 feet above sea level. The land is wooded and is situated approximately one and three-quarters miles northeast from the T.V. tower in Bonita Springs." (Petitioner's Exhibit 23). Having received this representation from May, Ramsaran's concerns were temporarily allayed until Department Investigator Stevens visited him several months later. That visit prompted Ramsaran to contact a Bonita Springs real estate broker to see if a survey of property could be made. When advised that the property was under water, Ramsaran returned to May and requested a refund of his money. May refused to do so until he was reminded he had guaranteed the property by letter previously given Ramsaran on May 16; May then agreed to make a refund. In March, 1979, after receiving "pressure" from Department investigators concerning the land sales that were being made, May quitclaimed all of the properties purchased back to Minster (Petitioner's Exhibits 13-17) . By letter he concurrently advised each of the investors to begin making their monthly payments to Minster rather than to May. Although Minster was not forewarned that May was going to convey the property back to him, Minster has retained ownership of the property since that time, and has continued receiving the monthly payments from May's former customers. Martell was taken by May to the property on three separate occasions to orient him concerning its location and characteristics. Minster also accompanied them on at least one occasion. They went to the television tower in Section 30, and from there traveled east-northeastly for about 3/4 of a mile along a trail into an area covered by pines, cypress and palmetto. After stopping, May pointed out the general direction in which the property was located and described it to Martell as being "high and dry". Despite asking both May and Minster for more specific instructions on several subsequent occasions, Martell was never actually told the precise location of the property being sold. When Martell began working for May, he was given pictures of the property and told to discuss the general growth of the area with customers and point out its location on a map. When visits were made to the property with prospects May told Martell to drive the prospects to the television tower, and to walk eastward from that point into the woods as far as possible. However, Martell acknowledged he was never sure where the property he was selling was actually located. Both May and Minster told Martell the property was high and dry and 17' above sea level. There were no inaccurate representations made by May to Martell concerning the local zoning ordinance or access to utilities. Bundick met May through a friend who was employed by Commercial. She began working as a salesman for Commercial in March, 1978, and continued in that capacity until January, 1979. Although Bundick had no experience in selling raw acreage, and preferred to sell residential and commercial property, May encouraged her to sell land. He did not take Bundick to the property in question; instead he gave her a map on which he had traced the directions. After unsuccessfully attempting to find the property on one occasion, Bundick again asked May to show her the property. May told her his secretary would accompany her to the exact location the next time she took a client to inspect the land. Sometime later, Bundick and May's secretary, Deborah Kemph, visited the property at which time Kemph told her the property they were standing on was that purchased from Minster. In all future dealings with customers, Bundick used that location as a reference point for selling property, and assumed that what was being shown and what was being sold were the same. To this date, she still does not know the exact location of the property that she sold. She claims she simply relied upon the advice given by May, and believes that if incorrect advice was given customers, the fault lies with May. During her association with Commercial, Bundick acknowledged that besides the sale to Park, she also sold 'several other' parcels of property to various customers. May stated he was inexperienced in the land sales business when he purchased the property from Minster. He claimed he was "setup" by Minster, an experienced broker, who used Commercial Equity Corporation to merchandise his property; however, this claim was not substantiated. May also claimed he was deceived when he was initially shown the property, and that the exact location of the property being sold was never shown to him. He further stated he deeded the property back to Minster only after drugs had been placed in his food by his secretary, and he did not understand the nature of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent George May be found guilty of misrepresentation for instructing his sales associates to inform prospective purchasers that the land being sold was high and dry as set out in paragraph 2 of Count III. It is further RECOMMENDED that Respondent Marie L. Bundick be found guilty of misrepresentation in her dealings with purchaser William Park as set forth in Subparagraphs 3(b) and (c) of Count VI. It is further RECOMMENDED that all other charges against Respondents be DISMISSED. It is further RECOMMENDED that Respondent May's real estate broker's license be suspended for 6 months, and that Respondent Bundick's real estate salesman license be suspended for 30 days. DONE and ENTERED this 1st day of September 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1981.
The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.
The Issue The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.) The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding. In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.
Findings Of Fact Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.) The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its predecessor also developed other related mixed-use DRIs to the east in Lake County. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID, T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI: [¶4] [I]ntervenor [Villages] is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. [¶5] In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. [¶6] In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. [¶7] In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. [¶8] On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. [¶9] The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. [¶10] The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. [¶11] Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.) At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri- County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI. While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center Hill, Coleman and Webster. None are as urbanized as the Tri- County Villages DRI. Simultaneous Conversion Objective 7.1.2 of the County's comprehensive plan provides in pertinent part: Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities: Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . . Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use": 8 dwellings per gross acre in "Residential Areas Inside UEA"; 6 dwellings per gross acre in "Commercial Areas Inside UEA"; and 4 dwellings per gross acre in "Res./Comm. Uses Outside UEA." Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses. Demonstrated Need As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas, while the Plan Amendment in this case converts the agricultural land to UEA and PUD.) For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty- year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr. Fishkind stated that [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth. In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change. Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis. DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64, infra.) Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in transient housing.) The County then allocated those dwelling units in various land use categories. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally, Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.) It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan Amendment. So-called "90% Rule" The County's Plan Policy 4.6.1.1 provides: The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.) This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule." Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space." Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another 500 acres that should have been counted, Petitioners' expert calculated 88.96%. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments. Urban Sprawl Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate. Petitioners did not prove that the Plan Amendment 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. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County. Petitioners also did not prove that the Plan Amendment 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, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI, which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated. Petitioners did not prove that the Plan Amendment fails 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. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service providers for the Villages of Sumter might be expected to reside. SCAID SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary. SCAID has held just two meetings since its inception. Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on behalf of Petitioners at final hearing. The other individual Petitioners did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance." DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. 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 20th day of February, 2001. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 Jane M. Gordon, Esquire Jonas & LaSorte Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204 Terry T. Neal, Esquire Post Office Box 490327 Leesburg, Florida 34749-0327 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
The Issue The issue for determination is whether the comprehensive plan adopted by Escambia County is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact PARTIES DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments under Florida's Local Government Comprehensive Planning and Land Development Regulation Act (the Act). Final agency action with regard to plans and plan amendments found not in compliance by DCA is taken by the Governor and Cabinet, acting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. Respondent, Escambia County, is a local government required to adopt a Comprehensive Plan under the Act. The following intervenors filed petitions challenging portions of the plan: League of Women Voters of the Pensacola Bay Area, Inc.; Dorothy Kaser; Joseph Grizzaffi, Jr.; Anneice Grizzaffi; Francis M. Weston Audubon Society; Gabrielle Faddis; James Lane; Jacqueline Lane; and Vivian Faircloth. The following intervenors filed petitions in support of the plan: Homebuilder's Association of West Florida, Inc., Michael Blanton and Escambia Construction, Inc.; Highland Development Group, Inc.; Edwin Henry and Henry and Co., Inc.; and E.J. Gibbs. Prior to commencement of the hearing Highland Development Group, Inc. withdrew its petition to intervene. As a result of stipulation of the parties, no objection is raised to the participation of the remaining parties who are intervenors on behalf of Respondent. STANDING OF THE PARTIES In order to intervene in this proceeding, the requirements of Section 163.3184(1)(a), Florida Statutes, must be met. First, the intervenor must be an "affected person" as defined by that section. Second, the intervenor must have submitted oral or written objection during the local government "review and adoption proceedings." The local government "review and adoption" period is the period of time which runs from the issuance of DCA's Objections, Recommendations and Comments Report (the ORC Report) and the adoption of the plan. In the instant case this period of time commenced on August 10, 1990, the date of the ORC Report, and ended on October 8, 1990, the date of the plan's adoption. The League of Women Voters of the Pensacola Bay Area, Inc. (the League), is a local chapter of the League of Women Voters. Gloria Dawson, former president for the League, spoke on behalf of the League before the Board of County Commissioners September 17 and 24, 1990, and expressed concerns and opinions regarding the County's proposed plan. Between August 10, 1990, and October 8, 1990, the League also provided written comments to the County concerning the plan. Many members of the League, including Gloria Dawson, Vivian Faircloth, Muriel Wagner, Dorothy Faddis, are residents of Escambia County; several members reside in the unincorporated area of the County. Dorothy Kaser resides and owns property in Escambia County. She was a member of the Planning Board, the County's local planning agency pursuant to Section 163.3174, Florida Statutes, from 1988 to December 1990. Through her duties as a Planning Board member Ms. Kaser provided written and oral comments to the Board of County Commissioners regarding the comprehensive plan. Her comments were stated at Planning Board meetings during the local government review period, and were incorporated in the final Planning Board recommendation which was forwarded to the Board of County Commissioners for final approval and adoption. Joseph Grizzaffi, Jr., and Anneice Grizzaffi are married and reside and own property in Escambia County. During the local government review period the Grizzaffis spoke on August 23,1990 to the Board of County Commissioners, impaneled as the Zoning Board, concerning mixed use categories, leapfrog development, and strip commercial development. The Grizzaffis made these comments in opposition to a rezoning request, but also as part of the larger planning scheme involving the comprehensive plan. The Grizzaffis were under the impression given by the Public Participation Procedures and the conduct of one of the commissioners at the August 23 meeting that comments concerning the plan could be directed to either the Board of County Commissioners or the Zoning Board. The Frances M. Weston Audubon Society is a local chapter of the National Audubon Society (Audubon). Gabriel Faddis spoke about issues concerning the comprehensive plan on behalf of Audubon before the Board of County Commissioners on August 31 and September 24, 1990. Ms. Faddis represented Audubon at these meetings at the request of the Chapter's president. James and Jacqueline Lane reside and own property in Escambia County. During the local government review process, neither of the Lanes provided the County any oral or written comments concerning the plan. Although the Lanes attended the adoption hearing, neither of them offered any comments because they felt it was "pointless." In their opinion, the period of time between the ORC Report and plan adoption was dedicated by the County to entertaining land use changes as opposed to constructive criticism or comments from the public. Vivian Faircloth is a resident of Escambia County and an officer of the State League of Women Voters. Ms. Faircloth commented on the plan to the Board of County Commissioners on September 24, 1990. At that time she made it clear that she was speaking on behalf of herself, not the League, which was officially represented at the same meeting by Gloria Dawson. DCA was not requested by the County to attend the plan adoption public hearings which were conducted on October 5 and 8, 1990. COUNTY BACKGROUND The most western county in the Florida Panhandle, Escambia County is bordered on the east by the Escambia River, on the west by the Perdido River, on the north by the State of Alabama, and on the south by the Gulf of Mexico. It is comprised of approximately 430,661 acres. According to the plan's data and analysis, the population for the unincorporated portion of the County is estimated and projected as follows: 1990 232,271 1995 249,623 2000 263,150 There are only two incorporated municipalities within the County: Pensacola and Century. These municipalities have drafted and adopted their own plans. The City of Pensacola is an urban area in the southeast portion of the County with a population of approximately 62,036 persons; Century is a rural community in the northern portion of the County with a population of 2,664 persons. Approximately 95 percent of the County's population resides in the area of the County which extends from Pensacola to the middle of the County. Escambia County has an abundance of valuable water resources including Pensacola Bay, Perdido Bay, Escambia Bay, Escambia River, Perdido River, Bayou Chico, and Bayou Texar. The County's surface water resources can be divided into four drainage basins: the Escambia River Basin, Pensacola Bay Basin, Perdido Bay Basin, and Perdido River Basin. The County also has significant wetland areas, particularly along the rivers, in the Southwest portion of the County and in the coastal areas. In 1984 the Governor and Cabinet, sitting as the Administration Commission, designated the lower portions of Escambia and Santa Rosa counties a resource planning area pursuant to Section 380.045, Florida Statutes. This designation arose from concern about development damaging coastal dunes and wetland areas. The purpose of this designation was not to stop growth in this area, but to evaluate the ability of the local governments to protect the environment through comprehensive planning and land development regulations. The evaluation was conducted by the Escambia-Santa Rosa Counties Coastal Resource Management Planning Committee, which produced a report containing numerous recommendations that were approved by the Governor and Cabinet. In his November 24, 1984 charging letter to the committee, Governor Graham specifically asked it to evaluate the adequacy of resource protection, particularly for coastal dunes, wetland areas, and the estuarine resources of the various bay systems in the study area. Historically the County has been reluctant to plan development. To date not all of the unincorporated areas of the County are subject to zoning regulations. The County did not have any zoning in the unincorporated area of the County until adoption of its Zoning Ordinance in 1989, which zoned the southern part of the County from what is known as Ten-Mile Road south to the coastal edge of the County. The County presently has two zoning ordinances of limited scope which were adopted only after intervention from the State. One of the zoning ordinances applies to the limited area surrounding the University of West Florida, a state-funded university. The University of West Florida zoning ordinance was adopted at the insistence of the State, which did not wish to invest in an unplanned area, prior to the construction of the university. The Urban Land Use Regulation Ordinance, which applies to the area south of Ten Mile Road, was adopted at the request of the Escambia-Santa Rosa Counties Resource Protection Management Committee as a first step towards planning future development. HISTORY OF THE PLAN The County contracted with the West Florida Regional Planning Council (RPC) to draft proposed goals, objectives and policies; compile support data and analysis; and provide technical assistance in the preparation of the plan. The RPC also drafted a Future Land Use Map after the ORC Report was issued. This map was not adopted by the County. The key person involved with the preparation of the plan was Robert Koncar, Assistant County Administrator. Although the County has a planning staff housed in the Department of Planning and Zoning, the County's planners were not involved in the preparation of the plan. Koncar personally revised the goals, objectives, policies and the Future Land Use Map Series which had been developed by the RPC. The County's land development regulations were due to be adopted by May 1, 1991. Those regulations were not adopted on schedule, nor was the Concurrency Management System which the County affirmatively committed to adopt in Capital Improvements Policy 1.3.7 of the plan by May 1, 1991. The proposed plan was received by DCA on May 1, 1990. DCA issued its ORC Report on August 10, 1990. The County held public hearings on the adoption of its plan on October 5 and October 8, 1990. During the course of these public hearings the County considered numerous applications for land use changes. These changes applied to designations on the Future Land Use Map series. The application forms for land use changes simply requested information as to the location of the property and desired use. No explanation or data and analysis was required of an applicant to justify a land use change. No data and analysis was submitted by the County to DCA to support these land use changes. The proposed plan originally did not include planning for Pensacola Beach and Navarre Beach. The proposed Santa Rosa Future Land Use Sub-element (Santa Rosa Sub-element) was submitted to DCA after submittal of the proposed plan. The Sub-element was prepared later by a different consultant, the Strategic Planning Group, following DCA's objection to Santa Rosa's exclusion from the plan. DCA reviewed the proposed Santa Rosa Sub-element and its data and analysis later and issued a separate ORC Report based on it. On October 8, 1990, the Escambia County Board of County Commissioners adopted Ordinance 90-18 which by reference adopted the Goals, Objectives, and Policies of the Comprehensive Plan and the Future Land Use Map or Map Series. On November 30, 1990, DCA issued its Statement of Intent to find the plan to be not in compliance. In 1991 the legislature adopted Chapter 91-310, Laws of Florida, which altered the boundary line between Escambia County and Santa Rosa County so that Navarre Beach is now in Santa Rosa County. SANTA ROSA ISLAND AUTHORITY One of the unusual physical features of Escambia County is Santa Rosa Island, a coastal barrier which stretches from the eastern half of the County to Walton County. The County acquired 20 miles of the western-most portion of the Island by deed from the federal government in 1946 to be used in the public interest subject to regulation by the County, whether leased or not. A substantial part of the Island was given back to the federal government to be used as part of the National Seashore. The deed specifically prohibits the County from selling any part of the Island. The remainder of the County's portion of the Island was either placed under the control of the Santa Rosa Island Authority (SRIA) or leased to Santa Rosa County. The SRIA was established by special act in the 1950's to administer the County's portion of the islands. The SRIA is governed by a board consisting of one member selected by each of the five County Commissioners and one member elected by residents on the Island. The Authority has an executive director and permanent staff of approximately 60 employees. Beginning in the 1950's, the SRIA disposed of the property under its control by entering into standard 99-year leases with automatic 99-year renewals. These leases are for commercial and residential properties and generally authorize the construction of development on the parcels up to a certain intensity of use or density. More current commercial leases for other than hotel purposes are generally for shorter periods than 99-year terms. The leases are not subject to a bidding process or other competitive public process. They are negotiated with private individuals on a case-by-case basis. The rent provided for in the lease has no relationship to the market value of the property. The term of the leases has no relationship to the need to amortize an investment. Very few of the parcels subject to leases for multiple-family use on Pensacola Beach have been built to the maximum density provided for in the lease; yet, most of those uses are earning a profit. The data and analysis, and goals objectives and policies, relating to Santa Rosa Island were done under the assumption that the outstanding leases are enforceable over the police powers of the County. The portions of the plan relating to Santa Rosa Island were designed to take those leases into account. If a "carrying capacity" analysis of the island had been done, a completely different result would have been recommended by the consultant. No effort has been made by the County or the SRIA to challenge the validity of the leases or to enter into a program to minimize the number or term of the leases. In fact leases are still being executed by the SRIA with no information about how the rent relates to the fair market value of the property. In 1985 the County issued a series of revenue bonds to pay for improvements on Pensacola Beach. The revenues which were pledged for repayment included anticipated lease payments from new lessees. The number of units actually built since 1985 has been a mere fraction of the ones anticipated in the bond documents. Yet the debt service on the bonds has been kept current, and existing revenues will be sufficient to maintain those payments into the foreseeable future. The SRIA generates no funds for Escambia County government, and the leases are not subject to ad valorem taxation. EFFICIENCY OF LAND USE AND THE FUTURE LAND USE MAP As early as its 1980 Comprehensive Plan (1980 Plan), the County acknowledged predominant land development patterns in the unincorporated area characteristic of two types of sprawl: The random development pattern and the corridor pattern. These development patterns resulted from past policies of minimum planning, lack of development coordination and absence of land use or zoning controls in the County except for the areas around the University of West Florida. That area, under the University of West Florida Land Use Regulations, exhibited orderly growth in contrast to other parts of the County. The corridor pattern of growth along the major transportation routes had become an increasing trend in Escambia County in the 1980's as the urbanized area spread outward to the north and west. Even though these patterns of development were criticized in the 1980 Plan, they are still characteristic of the types of development which currently exist in the County and are encouraged by the land use designations on the Future Land Use Map. The 1980 plan noted that the random development, or leapfrog pattern, was characterized by low density residential clusters in the urbanized areas of the County surrounding the City of Pensacola with scattered intermittent commercial and mixed uses along the major transportation routes radiating out from the urban areas. The random or leapfrog growth pattern, characterized by intermittent, developed clusters and undeveloped open spaces, produces low tax revenue per acre of land, a very high cost of providing services and facilities to the scattered clusters, and little incentive for fill-in development in the vacant areas. Generally speaking, single-family residential property does not generate sufficient ad valorem tax revenue to pay the costs of providing public services to the property, especially when sprawling patterns make those services more expensive to provide. Sprawling development patterns impose additional costs, such as increased utility costs and lower levels of service on roads, some of which may be offset by reduced land costs. However, accommodating such patterns through the provision of public services like law enforcement, emergency response, water and sewer, and public schools, also tends to result in the subsidization of inefficient development patterns by residents who live or do business in areas characterized by a mixture of functionally related uses. These costs are of increasing significance to County governments in rapidly growing areas like Florida because residents of unincorporated areas are increasingly demanding a level of public services that used to be enjoyed only by residents of incorporated municipalities. Requirements that a plan be based on data and analysis, protect natural resources, maximize use of efficient infrastructure, and be financially feasible, are related in the sense that a plan which discourages sprawl is more likely to accomplish these planning objectives as well. The term "urban sprawl" as it appears in Chapter 9J-5 is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas, and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. Leapfrog development may occur due to the lower cost of land outside the urban area compared to the cost of developable land in the urban area. This can occur when plans fail to address the timing of development in addition to its location. Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development may still present an increased risk to water supplies and sensitive environmental areas. Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant communities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of curb and median cuts and access points which must be permitted. Strip development frequently overburdens arterial roadways with local trips since local road networks remain poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that may require protection from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential, commercial, industrial, recreational and institutional uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient use of developable land, and frequently destroys significant environmental and natural resources. Allowing low-density development on large expanses of land also frequently precludes development or redevelopment at the higher densities that become appropriate as the urban or urbanizing area grows. The resulting growth pattern encourages leapfrog development. If redevelopment of these low-density areas to higher intensities does occur, the costs to expand public facilities and services will commonly be substantially higher than would have been incurred to provide the infrastructure capacities that would have been appropriate initially. Plans which fail to discourage urban sprawl often over-allocate land uses, especially residential uses, and designate areas for development which are not suitable, such as wetlands, floodplains, poorly drained soils and aquifer recharged areas. An unregulated land development environment is usually unsuccessful in bringing about truly efficient land development patterns because such a market does not force a developer or land consumer to pay the true, full economic costs of land development. Hidden subsidies may arise from a failure to impose marginal cost pricing of utilities, failure to establish special taxing units to reflect actual costs of parties' utilities, and failure to assign costs to destruction of natural resources like wetlands and aquifer recharge areas. Sprawling development patterns also adversely impact agricultural operations in that such patterns may cause land use conflicts by encouraging farmers to abandon reinvestment in their farm operations and begin looking to sell their land. The Escambia County plan greatly over-allocates residential land uses. This over-allocation is not based on data and analysis. Generally, the number of developable acres designated for use over the 10 year planning period should be only slightly larger (25 percent) than the number of acres needed for that particular land use. Using the County's own assumption regarding densities, approximately 18,841 acres will be required to meet residential needs, excepting agricultural and agricultural/timber categories. The plan allocates total acreage of 122,980, or more than five times the land supply needed for this purpose. The plan allocates 8,881 acres for commercial and industrial purposes in the face of assumed need for only 4,294 acres, more than twice the projected need. The Escambia County Comprehensive Plan actually encourages the proliferation of urban sprawl in the land use patterns set out on its Future Land Use Map (FLUM). Similarly, the plan is not based on data and analysis regarding land use allocations and, by encouraging scattered residential development, poses a threat to the continued viability of agriculture in the County. Future Land Use Element (FLUE) Policy 3.1.3 classifies residential land uses. The following land use categories, as established by that policy, allow special exceptions as land uses: Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential; and Urban Residential. Nowhere in the plan is there any indication of what uses will be allowed by special exception or what criteria will be used in establishing the conditions for a special exception. Thus, the plan's densities and intensities of use for Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential and Urban Residential are chimera. The plan includes mixed use classifications of land use in several policies: FLUE Policy 3.1.5 (Mixed Use and Mixed Use-Southwestern District), 3.1.5.a (Mixed Use and Mixed Use- Southwestern District), 3.1.3 (Rural Residential-Mixed Use), and Santa Rosa Sub-element Policy 1.4.5 (Medium Density Residential Commercial and High Density Residential Commercial) and 1.4.8 (High Density Residential). Nowhere in these policies or related policies, including FLUE Policy 4.1.22 and 4.1.23, is there any criteria which establish the composition of mixed use categories (i.e., 30% commercial, 70% residential) or guide the implementation of these mixed use classifications such as by ensuring that the land uses are functionally related. Thus, no densities or intensities of use have been established for these land use categories. The plan does not ensure that development will result in a balanced and complimentary mixture of land uses. FLUE Policy 3.1.5 establishes land uses for the Mixed Use-Southwestern District. This category allows the following development: Low Density residential, 1-7 dwelling units per acre; Medium Density Residential, 8-15 dwelling units per acre; and Commercial, consistent with lot coverage standards of 75% maximum coverage for all impervious surfaces. The Future Land Use Map series does not indicate where the various residential densities are allowed nor does the plan include any criteria to provide any guidance as to which density would apply where and under what circumstances. Most of the area in the Mixed Use-Southwestern District contains wetlands. Based on the General Soils Map contained in the data and analysis, this area is dominated by Klej-Leon (somewhat poorly drained), Plummer-Rutledge (poorly drained) and undifferentiated poorly drained flood plains and swamps. These soils, which are indicative of poor drainage, are referred to as hydric soils, which is an indicator of wetlands. The data and analysis does not analyze the suitability of this area for development despite the soils characteristics. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach and includes a category denominated Conservation/Recreation. That classification states in pertinent parts: . . . depending on the specific characteristics of each site appropriate recreation uses may include public parking, beach access, boardwalks, nature trails, boat launching areas, docking facilities, picnic areas, rest rooms, and other such related uses as may be approved by the Santa Rosa Island Authority consistent with legal requirements presently in force. Other uses may by approved by the Santa Rosa Island Authority subject to appropriate studies which demonstrate that such uses are environmentally sound and in the public interest . . . The development of a golf course is allowed by this category and has been specifically contemplated in the past by the Santa Rosa Island Authority. Language of the Conservation/Recreation category in Santa Rosa Sub- element Policy 1.4.5 (10), affords great discretion in the Santa Rosa Island Authority as to what "other uses" are in the "public interest" or "environmentally sound. "No standards are provided which would specifically identify the limits of the types of uses for this classification or the specific criteria which would apply in ensuring a development was in the "public interest" or "environmentally sound." As a result, this policy places unbridled discretion for development in the hands of the Santa Rosa Island Authority, an entity not elected and not accountable to the public. The residential density for the area depicted on the Future Land Use Map as Special Development/Buffer is established in the FLUE Policy 3.1.1 and FLUE Policy 3.1.9. These policies are internally inconsistent as relates to residential densities. Policy 3.1.1 allows one to five dwelling units per acre and Policy 3.1.9 allows only one dwelling unit per acre for this land use. FLUE Policy 3.1.7 establishes land uses for the Recreational category allowing "public recreation areas, private recreational facilities, including limited commercial uses, such as marinas, public utilities." The intensity must be "consistent with lot coverage included in the land development regulations." This policy is inadequate because the intensity of development must be established in the plan, not the land development regulations. FLUE Policy 3.1.8 establishes land uses for the Conservation category. This category allows: . . . activities compatible with the purposing of conserving or protecting natural resources, including flood control, wildlife habitat protection[,] resource-oriented recreational uses, wetlands application of reclaimed water where appropriate and beneficial, and, where appropriate, silviculture using best management practices as defined by the Florida Division of Forestry. No density or intensity is established in the plan for this category. The County could have established intensities for this category through lot coverage, floor area ratios, height densities, and bulk criteria. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach including the following categories: General Retail; Recreation Retail; Conservation/Recreation; and Government and Civic. Each of these categories allows development but does not establish any densities or intensities. Santa Rosa Sub-element Policy 1.4.8 establishes land uses for Navarre Beach including the following categories: High Density Residential; Commercial; and Recreation. Each of these categories allows development but does not establish any densities or intensities. The data and analysis submitted to support the proposed plan included a map series which identified historic districts, archeological areas, historical sites, and additional facilities. The Future Land Use Map series does not depict any historic properties, although such properties are known and identified in the data and analysis. The data and analysis identifies existing and planned water wells. Table 15 lists wells operated by various facilities for public and industrial uses and Table 16 lists future wells projected for the period of 1985-2005. These existing and future wells are depicted on a location map which is a part of the data and analysis. However, the locations of these existing and future wells are not depicted on the Future Land Use Map series. Further, the areas around major water wells, termed "cones of influence" are also not depicted on The Future Land Use Map series. The data and analysis depicts the 100-year floodplain on a location map. The 100-year floodplain is not depicted on the Future Land Use Map series. There are various types of wetland systems in Escambia County including: Bottom land hardwood communities, located along the Escambia River; the mixed wetlands, found in the Southwest District and the Perdido area; estuarine systems associated with the estuaries Pensacola Bay, Escambia Bay and Perdido Bay; coastal salt marshes; and the unique freshwater lens system found on Perdido Key and Santa Rosa Island. The Future Land Use Map series fails to depict all these wetlands. The identification of hydric soils may be a good indicator of wetland areas, but the Generalized Soils Map which is found in the support data and analysis was not adopted by the County. The adoption ordinance does not indicate that the County adopted a wetlands map of any kind. The data and analysis generally depict soils. The data and analysis contain a map entitled "General Soil Map" which was prepared by the U.S. Department of Agriculture in 1960. This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map series which was adopted depicts no soil information. The data and analysis generally depict sandy clay and clay; medium- fine sand and silt; and gravel and coarse sand on a map entitled "Mineral Resources." This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map which was adopted does not depict any mineral information. The Future Land Use Map series consists of three maps: a countywide map with land use categories "drawn" on a Florida Department of Transportation general highway map, a map of Pensacola Beach, and a map of Navarre Beach. The countywide map is internally inconsistent with the Navarre Beach Map because the countywide map depicts only three land use classifications on Navarre Beach: Low density residential, Commercial, and Conservation. The Navarre Beach Map, however, includes these different designations: low density residential; medium density residential; high density residential; commercial public utility; outdoor recreation; and preservation. The policies in the FLUE which describe low density residential (Policy 3.1.3), commercial (3.1.4) and recreation (3.1.7), describe different uses and intensities or densities than are described for categories of the same name in Santa Rosa Policy 1.4.8. The countywide Future Land Use Map depicts a Tourist/Resort category on Pensacola Beach. No policy establishes this category, describes the allowable uses, or establishes densities or intensities of use. The countywide map depicts a large area next to the City of Pensacola as "Commercial." FLUE Policy 3.1.4 defines this classification to allow commercial activities and public facilities and specifically prohibit residential development. The Existing Land Use Map found in the data and analysis indicates that the existing land uses are more varied and include residential uses. No explanation of the prohibition of residential development exists within the data and analysis. PROTECTION OF NATURAL RESOURCES The data and analysis identifies numerous types of natural resources: rivers, bay, lakes, estuaries, groundwater, wildlife, endangered and threatened plans and animals, trees, wetlands, dune systems, and marine resources. The FLUE is required to include an objective ensuring the protection of natural resources. The only objective in the FLUE which attempts to address countywide natural resources is Objective 1.9, which reads: By May 1991, development criteria shall be adopted in the land development code to protect areas designated as Conservation, Special Development/Buffer, and other land requiring protection due to the presence of sensitive natural resources. FLUE Objective 1.9, while expressing a basic goal, is not specific and measurable. It is meaningless for purposes of marking progress toward an identified goal. Simply referring to a time frame does not make it measurable. Objectives and policies intended to meet the requirements of Chapter 9J-5, F.A.C., must be substantively effective upon adoption and not relegated to adoption through land development regulations. The data and analysis identify numerous natural resources throughout the County which are threatened by development and should be protected, however FLUE Objective 1.9 provides limited protection to the two areas designated Special Development/Buffer and to the few coastal areas designated Conservation. Therefore, this objective is not supported by the data and analysis. The FLUE is required to contain a policy which addresses implementation activities for the protection of environmentally sensitive land. The only policy in the FLUE which attempts to address the protection of environmentally sensitive land is FLUE Policy 1.9.1, an implementing policy of FLUE Objective 1.9., which states: The development criteria shall include, but not be limited to, the prohibition of development of areas designated as Conservation, severe limitation of development potential for areas designated as Special Development Buffer, special review and approval procedures for properties which may be identified as having sensitive natural resources. FLUE Policy 3.1.9 establishes a residential density of one dwelling unit per acre for the Special Development/Buffer. Per the FLUM, this is a land use found in only two areas in the eastern portion of the middle section of the County. The term "severe limitation" contained in FLUE Objective 1.9. is not defined, leaving the application of this policy to be subject to interpretation. The referenced special review and approval procedures have not been delineated, nor have other areas containing sensitive natural resources (in addition to the Conservation and Special Development/Buffer areas) been identified, yet they are known to exist, as shown in the data and analysis. Accordingly, FLUE Policy 1.9.1 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 1.9.2, also an implementing policy of FLUE Objective 1.9, states: The County shall maintain and implement Section XVI of the Urban Area Land Use Regulation Ordinance, as may be amended, requiring review of all properties for presence of wetlands prior to issuance of any development permits. Development projects proposed for development on lands identified as containing wetlands must complete the special development review procedures established in the land development regulations. Provision shall be established in the Land Development Regulations for requirement exemption through an agreement of nondevelopment of wetland areas. FLUE Policy 1.9.2 fails to establish specifications or programs to protect wetlands, is not supported by the data and analysis, and allows the policy to be amended from time to time without going through the necessary agency review process required by Section 163.3184, Florida Statutes. Accordingly, FLUE Policy 1.9.2 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 4.1.9 states: The County shall develop criteria for assessing the negative impacts of a potential development upon the environment which shall include, but not be limited to: Environmental habitat adjacent to proposed development; Intensity of development; Potential pollutants or other negative impacts released as a result of development. This policy is inadequate because it does not identify specific actions or programs. It does not constitute a "policy" as that term is defined in Rule 9J- 5.003(68), F.A.C., and it defers implementation or action until a future date. The plan, including FLUE Policies 4.1.9, 1.9.2, and 1.9.1, do not adequately address implementation activities for the protection of environmentally sensitive land as required by Rule 9J-5.006(3)(c)6, F.A.C. As applied specifically toward the protection of environmentally sensitive lands on Santa Rosa Island, Santa Rosa Island Sub-element Objective 1.4 states: Design and adopt a Future Land Use Map for Santa Rosa Island which coordinates the built environment with the natural environment. The Future Land Use Map shall coordinate topography, soils, beachdunes, native vegetation, natural waterbodies, and other natural resources with compatible intensities of allowable urban land uses such that potential Island population densities do not exceed hurricane evacuation capability. Policies 1.4.1-1.4.7 of Santa Rosa Island Sub-element Objective 1.4 do not ensure the protection of environmentally sensitive land because they do not identify specific actions or programs in accordance with the definition of "policy" in Rule 9J-5.003(68), F.A.C. Accordingly, there is no FLUE policy which adequately addresses implementation activities for the protection of environmentally sensitive land on Santa Rosa Island. The Coastal Management Element (CME) is required to include an objective for each goal statement which protects beaches or dunes, establishes construction standards minimizing impacts of manmade structures on beach or dune systems, and restores altered beaches or dunes. CME Policy 2.1.9 states: Construction seaward of the Coastal Construction Control Line shall only be permitted if state permits are first obtained. The Coastal Construction Control Line is a line established by the State of Florida, Department of Natural Resources pursuant to Chapter 161, Florida Statutes, under the premise that the area seaward of the line is subject to erosion. The State will not consider approval of development seaward of the coastal construction control line unless the applicable local government has already approved it. This provision of the plan makes construction contingent on state approval, contrary to law. It is inconsistent with requirements of Chapter 161. The Future Land Use Map series depicts development seaward of the coastal construction control line, including areas which are vacant. CME Policy 2.1.9, along with the Future Land Use Map designations which allow more development than is supported by the data and analysis, abrogates the County's duty to regulate the area seaward of the coastal construction control line in order to protect dune systems or other coastal resources. By failing to discourage development seaward of the coastal construction control line, CME Policy 2.1.9 fails to achieve the goal statement of Goal 2 of the Coastal Management Element which is to protect human life and limit public expenditure in areas that are subject to destruction by natural disaster. Objectives under Goal 2 of the CME do not adequately address protection of beaches and dunes as required by Rule 9J-5.012(3)(b)4., F.A.C.. CME Objective 2.1 addresses only maintaining a roadway clearance time for hurricane evacuation of twelve (12) hours; Objective 2.2 simply requires the County to identify the Coastal High Hazard Area; Objective 2.4 is concerned with public expenditures for facilities and infrastructure in the Coastal High Hazard Area; Objectives 2.5, 2.6. 2.8, 2.9, and 2.10 address dune reconstruction in the limited situation of post-disaster redevelopment. CME Objective 2.7 states: Establish site design criteria for construction and reconstruction within the Costal High Hazard Area. This objective is inadequate. It provides no specifically measurable intermediate end that is achievable marking the progress toward Goal 2. Similarly, CME Objective 2.11, which provides that "[c]onstruction activities on Santa Rosa Island shall not adversely impact the barrier island system," is inadequate because it is not specific and measurable. CME Objective 2.12 reads: "Allow no further loss in the acreage of beaches and dunes on the barrier island(s)." This objective, although specific and measurable, is inadequate because it applies only to the barrier islands and ignores the beach and dune resources on the mainland. Furthermore, development is specifically allowed in the beach and dune areas based on the Future Land Use Map designations. This internal inconsistency poses the question of whether the County intended Objective 2.12 or the Future Land Use Map to control the issuance of development orders in this area. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands and living marine resources. The CME is also required to include an objective which protects, conserves, or enhances remaining coastal wetlands and living marine resources. CME Objective 1.1 fulfills the requirement of Rule 9J-5.012(3)(b)1., F.A.C., to conserve remaining wildlife habitat, but none of its implementing policies meet the requirements of Rule 9J-5.012(3)(c)1., F.A.C., to limit impacts of development upon wetlands and living marine resources. CME Policy 1.1.6 appears to address this requirement. It is inadequate, however, because it fails to identify specific implementing actions or programs and it defers protection of these resources until the adoption of land development regulations. The policy states: The County shall, in conjunction with the Santa Rosa Island Authority, adopt or amend land use regulations on barrier islands, including Perdido Key and Santa Rosa Island, and other coastal areas identified in data and analysis which, at minimum address the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, and Florida Department of Natural Resources. This policy fails to include any criteria indicating what the land development regulations will require to protect these resources and no interim protection is provided. CME Objective 1.4 states: "By December 1992, the County shall develop a plan of action for maintaining and improving estuarine quality in the Coastal Area." This objective is inadequate because it defers implementation until December, 1992, and does not provide any criteria for any interim or future plan of action. No other objective in the CME addresses estuarine environmental quality. Therefore, there is no objective in the CME which maintains or improves estuarine environmental quality. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific and cumulative impacts of development upon wetlands. CME Policy 1.3.7 clearly attempts to address the requirements of this rule. However, it is inadequate to achieve the objective of protecting wetlands. The policy states: By 1993, amend existing land development regulations to include specific protection provisions for the specific cumulative impacts of development or redevelopment upon wetland areas as indicated and recommended by the stormwater management plan study. On its face, this policy is intended to address only the impacts of stormwater runoff on wetlands, and does not address other specific cumulative impacts of development or redevelopment such as the restriction or prohibition of development in wetlands. Furthermore, the policy is inadequate because it defers implementation until 1993 through land development regulations and no specific criteria is included in this policy as to what should be included in those regulations. The CME is also required to include a policy which identifies regulatory or management techniques for limiting impacts of development upon wildlife habitat. CME Policy 1.1.2 attempts to address this requirement. This policy states: By May 1991, revise the Special Development District Regulations to include special provisions to enhance wildlife protection to include, but not be limited to, consideration of cluster development, increasing mandatory open space requirements, consideration of wildlife corridors between special development districts and other such districts, in addressing the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Services, Florida Game and Freshwater Fish Commission, and Florida Department of Natural Resources. The vague use of the term "consideration" in CME Policy 1.1.2 does not provide any assurance that these actions will actually be implemented at a future date. Furthermore, the policy is not specific and measurable due to lack of criteria for open space, cluster development, or wildlife corridors. Further, the policy does not identify how the protection of species will be implemented. All of this is deferred to special development district regulations. 1/ The quality and quantity of waters flowing into estuarine or oceanic waters is not adequately protected as required by Rules 9J-5.013(2)(b)2., and 9J-5.013(c)6., F.A.C. The Conservation Element (CE) objectives of the plan are silent as to water quantity. Objective 1.1 refers to a state government agency's standards which apply only to water quality and do not address water quantity. CE Objective 1.1, which addresses surface water quality, states: "Prevent degradation of surface water quality below water qualities standards using as a minimum Chapter 17-25.040(5), F.A.C., in consideration of development of alternative regulations." Rule 17-25.040, F.A.C., is the Florida Department of Environmental Regulation rule for construction permit requirements for new stormwater discharge facilities. That rule, in turn, references Rule 17-25.030, F.A.C., which provides exemptions from the notice and permitting requirements of the Chapter. Rule 17-25.030 exempts single-family duplex, triplex and quadraplex facilities. Thus, CE Objective 1.1 applies only to water quality standards for new development and excludes single-family duplex, triplex and quadraplex facilities and existing development from drainage facility standards. CE Policy 1.1.11, which implements CE Objective 1.1, reads: Adopt or amend land development regulations to require retention/detention of stormwater runoff prior to discharge into surface water; and to prevent discharge of untreated or treated domestic and industrial waste water (which does not meet current treatment standards) into these areas through public and private sewage treatment plants, poorly designed septic disposal systems [or] both. Mechanisms shall include the Stormwater Management Conservation Ordinance, the formal agreement called for in Policy 1.1.10 and Policy 2.11.4 in the Coastal Management Element. Require all new development adjacent to marine, aquatic, environmentally sensitive and estuarine areas to prohibit depositing into any of these areas stormwater and domestic water that does not meet treatment standards set forth in Section 17-25.040(5), F.A.C., and the Escambia County Department of Health Regulations relative to septic tanks." CE Policy 1.1.11 adopts by reference Rule 17-25.040(5), F.A.C., which applies the exemptions of Rule 17-25.030, F.A.C., and expressly does not apply to existing development. Thus, CE Policy 1.1.11 does not identify surface water quality standards which are to be maintained for all development. Water quantity may adversely impact water quality especially in wetlands where water moves slowly. Development in and adjacent to wetlands adds runoff, silt and fertilizers to the wetland system. If these substances exceed the carrying capacity of the wetlands, adequate purification of the water does not occur before it enters into the estuaries. Development of wetlands also impairs their ability to retain water and absorb stormwater impact. The County has experienced problems associated with untreated stormwater runoff. The County's engineer has identified four main areas which experience stormwater runoff problems. In those areas the development is primarily single-family residential. Therefore, there is no rational basis for the County to exempt existing development and single-family development from its stormwater standards. There also is no basis in the data and analysis for the County to exclude duplexes, triplexes, and quadraplexes from the stormwater standards. The CE is required to include a policy addressing implementation activities for the restriction of activities known to adversely affect the survival of endangered and threatened wildlife. The County has many plants and animals which are threatened, endangered, and species of special concern. The data and analysis identifies threatened, endangered and special concern communities in Escambia County which were identified by the Florida Natural Areas Inventory. CE Policy 1.8.3 states: Endangered species habitats and unique natural areas, as identified by the Florida Natural Areas Inventory, shall be considered environmentally sensitive. Prior to development in these sections, the development site shall be inventoried for the presence of environmentally sensitive habitats. The results of this survey, as well as mitigation measures for protection of these features if found, shall be submitted as part of land development permit applications submitted for the project. This policy fails to take into consideration the known listed species already identified by the Florida Natural Areas Inventory as reflected in its data and analysis. This policy also does not address the habitats of threatened species and fails to establish specific criteria which will be applied to development in order to protect the functional viability of the habitats of endangered species. The CE is required to include a policy which addresses implementation activities for the protection and conservation of the natural functions of certain natural resources including rivers, wildlife habitat, estuarine and wetland areas. CE Policy 1.1.13 attempts to address these requirements. The policy reads: By December 1991, the County shall, in conjunction with federal, state and local agencies, develop a set of recommendations to further provide for protection of rivers, wildlife habitat, estuarine, and wetland areas. Once the study has been completed specific recommendations shall be forwarded to the Board of County Commissioners for inclusion to land development regulations. CE Policy 1.1.13 does not apply to the natural resources known to be present in the County. The data and analysis identifies numerous natural resources, such as rivers, wildlife areas, estuarine areas, and wetlands, whose natural functions qualify for immediate protection. Accordingly, the policy is not based on the data and analysis. CE Policy 1.1.13 also is not an adequate policy because it does not provide specific criteria which will be used to protect the natural functions of these resources. This policy refers to an undefined and uncommenced study which will be conducted in conjunction with federal, state and local agencies. The policy should include the specific criteria needed to protect the natural resources and be in place at the time of plan adoption, not at a later time such as December, 1991, or at the time of adoption of land development regulations. COASTAL HIGH HAZARD AREAS/HURRICANE EVACUATION The CME is required to include an objective for each goal statement which directs population concentrations away from known or predicted Coastal High-Hazard Areas. The plan contains no provisions to direct or discourage population concentrations away from Coastal High-Hazard Areas. CME Objective 1.8 states: Development or redevelopment in the coastal area shall occur only if minimum level of service standards for infrastructure is met or exceeded. The coastal area is defined by the County as including the area approximately one to one and a half miles inland from the shoreline, with the exception of the area adjacent to Escambia Bay along the bluffs. This includes the barrier islands in their entirety. This coastal area is depicted on Existing Land Use Map Series I which was submitted with the proposed plan. The plan defines the Coastal High-Hazard Area in CME Policy 2.2.1 as the area seaward of the Coastal Construction Control Line established by the Department of Natural Resources; Federal Emergency Management Velocity (V) Zones designated on the Flood Insurance Rate Maps for Escambia County; and areas which have historically received damage in areas scientifically predicted to receive water damage in a Category 3 hurricane. The Coastal High Hazard Area is included within the coastal area as defined by the County. CME Objective 1.8 is inadequate to serve the purpose of directing population concentrations away from Coastal High-Hazard Areas because it allows development to continue to occur so long as the levels of service standards are met or exceeded. There is no threshold cap for development or redevelopment. Based on the densities established in the FLUE, population concentrations are being directed toward the Coastal High-Hazard Area. Santa Rosa Island Sub-element Policy 1.4.5 establishes land use densities and intensities for Pensacola Beach. The land use designations of high density residential, high density residential/commercial and commercial are allowed within the Coastal High-Hazard Area of Pensacola Beach. Based on these designations, development of up to thirty (30) units per acre is allowed. High density residential allows multi-family development in the range of sixteen to thirty units per acre; high density residential allows a range of sixteen to thirty units per acre for residential uses or up to fifty units an acre with a special exception; commercial hotel allows the same densities as is allowed under high density residential/commercial. The densities established in Santa Rosa Sub-element Policy 1.4.5 represent an increase in development based on what is currently developed on Pensacola Beach in the Coastal High-Hazard Area. The plan encourages more development in the Coastal High-Hazard Area of Pensacola Beach. Santa Rosa Island Sub-element Policy 1.4.8 similarly allows an increase in density in the Coastal High-Hazard Area in Navarre Beach from what is existing there currently. The high density residential designation allows up to thirty dwelling units per acre and the commercial designation allows up to thirty units an acre or fifty units an acre with a special exception. Perdido Key lies entirely within the Coastal High-Hazard Area; however the designation for Perdido Key based on the Future Land Use Map is Mixed Use. Future Land Use Element Policy 3.1.5 allows Mixed Use to be developed between sixteen to fifteen dwelling units per acre and an unspecified mix of commercial which may cover up to eighty percent of the lot with impervious surface. The densities and intensities established for Perdido Key do not serve the purpose of directing population concentrations away from the Coastal High-Hazard Area; rather more development is encouraged to occur there. The plan's hurricane evacuation planning is based on the Tri-state Hurricane Evacuation Study and the Escambia County Peacetime Emergency Plan which are referenced in the data and analysis as sources. No data is available which isolates the evacuation time for just the unincorporated portion of Escambia County. However, it is estimated that the evacuation time for the entire County is approximately 14.25 hours. This is based on a medium response curve for a Category III hurricane event. CME Objective 2.1 states that the County will maintain a roadway clearance time for hurricane evacuation of twelve hours. This clearance standard is not met currently. No data and analysis have been provided to support the densities on the coastal barrier islands in relation to maintaining or improving hurricane evacuation times. Furthermore, the data and analysis do not indicate that the current clearance time to maintain is only 12 hours. Thus, the coastal area population densities have not been coordinated with the appropriate regional hurricane plan, the Tri-State Study, and there is no assurance of maintaining or improving the hurricane evacuation time. CME Objective 2.5 states that the County will adopt a post-disaster redevelopment plan for Escambia County that identifies short-term recovery and long-term redevelopment activities. This objective is inadequate because it does not identify any specific and measurable criteria. CME Policy 2.6.3.b., an implementing policy of CME Objective 2.5, reads: By 1992, incorporate in the Santa Rosa Island land development regulations, the following build-back policy, to be applied after a major natural disaster such as a hurricane . . . B. Structures damaged more than fifty percent of their replacement cost at the time of damage can be re-built to their original square footage and density, provided they can comply with: *Federal requirements for elevation above the 100-year flood level. *Building code requirements for floodproofing. *Current building and life safety codes. *State Coastal Construction Control Line. *Any required zoning or other development regulations (other than density or intensity), unless compliance with such regulations would preclude reconstruction otherwise intended by the build-back policy. *Any other relevant federal regulations. *Any other relevant local regulations, including lease agreements. *Any other relevant state regulations. CME Policy 2.6.3.b., allows structures damaged more than fifty percent to be rebuilt to their original square footage and density. Thus, this policy does not require redevelopment following disaster which will reduce or eliminate the exposure of human life in public and private property to future natural hazards. COASTAL MANAGEMENT The CME is required to include an objective that, following adoption of the plan, limits public expenditures to subsidize development permitted in Coastal High-Hazard Areas except for restoration or enhancement of natural resources. The CME is also required to include a policy designating Coastal High-Hazard Areas, limiting development in these areas, and relocating or replacing infrastructure away from these areas. The CME does not contain any objective or policy that adequately limits development of public expenditures subsidizing development in a Coastal High-Hazard Area. CME Policy 2.4.2 allows the development of public facilities in the Coastal High-Hazard Area provided that certain criteria are met. That policy reads: Public facilities shall not be located or improved in the Coastal High-Hazard Area unless the following criteria are met: the use is necessary to protect human life; the service provided by the facility cannot be provided at another location outside the Coastal High-Hazard Area; no alternate site is identified outside the Coastal High-Hazard Area; the facility is designed to provide the minimum capacity necessary to meet level of service standards for its service area; the total cost to build the facility to meet the Coastal Building Codes including floodproofing requirements does not increase the cost of the project beyond feasibility. CME Policy 2.4.2 does not limit the extension of facilities which subsidize development in the Coastal High-Hazard Area. The level of service will be the minimum criteria for the applicable land uses. As described above, the land uses tend to encourage development towards the Coastal High Hazard Area. Development may continue provided the level of service standards are met. CME Policy 2.1.10 states that the County will not allow the extension of water, sewer or storm drainage infrastructure to facilitate new permanent residential structures within the Coastal High-Hazard Areas of Escambia County for which the County has permitting authority unless state permits are first obtained. This policy does not limit the extension of facilities that subsidize development in the Coastal High-Hazard Area in the event that state permits are first obtained. No state permits have been identified which would independently have the effect of limiting development in the entire Coastal High-Hazard Area or relocating or replacing infrastructure away from this area. VESTED RIGHTS Policies 1.4.2, 1.4.3, 1.4.4 and 1.4.6 of the Santa Rosa Island Future Land Use Sub-element provide that leased property on Santa Rosa Island is exempt from the plan and land development regulations. FINANCIAL FEASIBILITY The comprehensive plan is required to contain a Schedule of Capital Improvements for which the local government has fiscal responsibility for the first five fiscal years following adoption of the plan and a list of projected costs and revenue sources by type of public facility for the five-year period. The Capital Improvements Element (CIE) is required to set forth a financially feasible plan which demonstrates that the local government can achieve and maintain the adopted level of service standards. The Schedule of Capital Improvements includes the expenditure of $9,400,000 for a Master Drainage Study and Facilities for the fiscal years 1990- 91 through 1994-95. The data and analysis identifies and recommends impact fees as the revenue source to fund the Master Drainage Study and Facilities. The County has not adopted an impact fee for drainage or stormwater management, or even for the study. In May 1991, the Board of County Commissioners considered alternative methods of funding for stormwater management. The Board of County Commissioners rejected the implementation of a municipal service benefit unit for stormwater. Instead, the Board of County Commissioners adopted the alternative of development and implementation of a stormwater utility fee which requires approval of the voters at a referendum. At the time of plan adoption and the time of the hearing, the referendum had not taken place. There is no guarantee that the voters will approve the referendum. Therefore, it cannot be said that the Master Drainage Study and Facilities will be funded through fiscal year 1994-95. CIE Policy 1.4.1 states: Existing and future development, including those on Santa Rosa Island, directly benefiting from stormwater management improvements shall bear a proportionate cost of stormwater facility capital improvements. Further, the Board of County Commissioners shall consider, and implement as it deems necessary, impact fees for other public facilities. CIE Policy 1.5.1 states: The Board of County Commissioners shall develop and implement any alternative revenue sources needed to properly fund the Capital Improvements Element which could include, but not be limited to, property taxes, special assessments and other forms of revenue raising measures. Neither Capital Improvements Element Policy 1.4.1 nor Policy 1.5.1 establishes the impact fees necessary to fund the Drainage Study and Facilities or identifies viable revenue sources. Therefore, the Master Drainage Study and Facilities, identified in the Schedule of Capital Improvements, is not funded and is not financially feasible. XII CONCURRENCY MANAGEMENT Minimum requirements for a Concurrency Management System mandate that the system ensure that facilities and services needed to support development are available concurrent with the impacts of such development. Prior to the issuance of a development order or development permit, the Concurrency Management System must ensure that the adopted level of services standards required by roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation and mass transit, if applicable, will be maintained. The Concurrency Management System contained in the Capital Improvements Element of the plan provides that facility capacity may be determined or counted as existing capacity, provided facilities were in the procurement cycle or if there is a binding executed contract for construction of the facility. This provision is overly broad and, hence, inadequate to meet rule requirements. The minimum requirements for concurrency are not uniform in every respect for the various types of public services and facilities needed to support development. For parks and recreations, the local government may satisfy the concurrency requirements through a binding executed contract which provides for a commencement of the actual construction of the required facilities or the provision of services within one (1) year of the issuance of the development permit in addition to other criteria. However, rule requirements in Chapter 9J-5, F.A.C., do not permit use of a binding executed contract to ensure concurrency for potable water, sewer, solid waste, and drainage facilities. The Concurrency Management System provides, on page 11-xi of the plan, that facility capacity may be counted if "the new facilities are guaranteed in an enforceable development agreement and is consistent with the Capital Improvements Element of the Comprehensive Plan." This is contrary to the requirements of Rule 9J- 5.0055(2)(a)(4), F.A.C., which contains minimum criteria for meeting concurrency through an enforceable development agreement. Those minimum criteria, which include the provisions of Rules 9J-5.0055(2)(a)1.- 3., F.A.C., are not recited in any provision of the Concurrency Management System or the Capital Improvements Element. The Concurrency Management System does not establish guidelines for interpreting and applying level of service standards to applications for development orders and permits and for determining when the test for concurrency has been met. The Concurrency Management System also does not contain guidelines for measuring the level of service and capacity of public facilities. Santa Rosa Island Future Land Use Sub-element Policy 1.1.3 indicates that the Concurrency Management System does not apply to Pensacola Beach. That policy reads: "By May 1991, the County shall adopt a Concurrency Management System in coordination with the Santa Rosa Island Authority to implement the Level of Service Standards of the Escambia County Comprehensive Plan as applicable to the Pensacola Beach." Santa Rosa Island Future Land Use Sub-element Policy 1.1.1 states: Development orders and/or permits for future development and redevelopment activities on Santa Rosa Island shall be issued only if public facilities necessary to meet level of service standards, adopted as a part of the Capital Improvements Element of the Escambia County Comprehensive Plan, are available concurrent with the impacts of development or are guaranteed in an enforceable development agreement pursuant to Section 163, F.S. and Rule 9J-5.0055, F.A.C., or an agreement or development order pursuant to Chapter 380, F.S. Santa Rosa Sub-element Policy 1.1.1 does not contain a provision that the necessary facilities and services will be in place when the development of impacts occur or, in lieu thereof, that the agreement must include the provisions of Rules 9J-5.0055(2)(a)1.-3., F.A.C. The Pensacola Beach Concurrency Management System was not adopted in the plan. Thus, the plan does not establish countywide concurrency. Santa Rosa Sub-element Policy 1.1.3 also is insufficient as it defers implementation of adoption of a concurrency management system until May 1991. The Concurrency Management System must be in place at the time of plan adoption. The Concurrency Management System does not clearly indicate the latest point in the application process for the determination of concurrency. The Concurrency Management System must indicate at what point in the application process final approval of a specific plan for development occurs and that this be prior to the determination of concurrency. The Concurrency Management System indicates that this point is the "final sign-off", however, that term is not defined and its meaning is opaque. LEVEL OF SERVICE STANDARDS Each local government is required to establish level of service standards for ensuring that adequate facility capacity will be provided for future development and for purposes of issuing development orders or permits pursuant to Section 163.3202(2)(g), Florida Statutes. The level of service standards must be set for each individual facility or facility type within the local government jurisdiction and not on a system-wide basis. The purpose of the sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element is to provide for necessary public facilities and services correlated to future land use projections. The sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element of the plan must contain policies which address implementation activities for establishing and utilizing level of service standards in accordance with rule requirements. The County has not adopted a level of service standard for drainage which will be applied to all development. Drainage Sub-element Policy 2.1.3 states: The level of service standard for stormwater water quality shall be the minimum Florida Department of Environmental Regulation Standards, Section 17-25.040(5), Florida Administrative Code. Single-family dwellings not part of a larger development will be exempt from the level of service requirements. As discussed above under Protection of Natural Resources, Section 17- 25.040, F.A.C., does not apply to new facilities. Thus, the County has not adopted a drainage level of service standard for existing facilities, as it must. Drainage Sub-element Policy 2.1.3 is also insufficient because it has not removed other exemptions included in Chapter 17-25.030, F.A.C.,: the single family, duplex, triplex and quadraplex exemption. This policy specifically exempts single-family dwellings not part of a larger development from the level of service standard, but is silent as to the other exemptions of Chapter 17-25, F.A.C. No such exemptions from the drainage level of service standards is authorized by Rule 9J-5, F.A.C. Santa Rosa Sub-element Policy 1.1.2 states in pertinent part: "Development approval is conditioned upon, but not limited to a determination of whether the following level of service standard can be met: (1) the post- development peak rate of stormwater discharge will not exceed the pre- development peak rate based upon the 25-year stormwater event of critical duration . . ." This level of service standard is inadequate because it ignores such critical factors as water quality. The Traffic Circulation Element (TCE) is required to include a policy establishing level of service standards at peak hours for all roads located within the government's jurisdiction. Subsection 9J-5.005(3) and subparagraph 9J-5.015(3)(b)3., F.A.C. A portion of SR 30/Pensacola Bay Bridge lies within the boundaries of unincorporated Escambia County. The Pensacola Bay Bridge starts in the City of Pensacola and terminates in Gulf Breeze, Santa Rosa County. Between the starting point of the bridge on the Pensacola side and the County line, which is over the Pensacola Bay, a portion of the bridge lies within the jurisdiction of Escambia County. The Department of Transportation General Highway Map, upon which the County-wide Future Land Use Map is drawn, depicts the County boundaries between Escambia County and Santa Rosa County. This map shows that Escambia County has jurisdiction over SR 30 between the City of Pensacola and midway between the mainland and Gulf Breeze. Approximately 1.5 miles of the bridge lies within the jurisdiction of the County. According to the data and analysis, SR 30/Pensacola Bay Bridge currently is operating at a level of service "F". This level of service is applied in the plan. 2/ The TCE is required to include a policy which establishes level of service standards at peak hours for roads within the local government's jurisdiction. These standards must be consistent with Florida Department of Transportation's policies. TCE Policy 1.1.1 adopts peak hour minimum acceptable operating level of service standards for County roads. The level of service standards for Transportation Planning Areas vary for various roadway types (freeways, principal arterials, minor arterials) depending on the area classification (existing urbanized, transitioning urban, rural). The policy also adopts a "deficient" level of service standard of "F" (existing) for the Pensacola Bay Bridge which it separately classifies as a Special Consideration (Backlogged Facility). The policy defines backlogged facilities as "roadways which do not meet the minimum acceptable level of service standards, are not in a Special Transportation Area, not constrained and are not scheduled for capacity improvement." The Pensacola Bay Bridge is a principal arterial road. The recommended Florida Department of Transportation level of service for the bridge is "D". A level of service of "D" indicates a range of speed of 17 to 21 miles per hour. A level of service of "F' indicates a range of speed of 0 to 13 miles per hour. The "F" standard cannot be violated because traffic may not be slowed below zero miles per hour. No specific measure of current operating conditions is provided to ensure the operating conditions will be maintained and improved. As long as existing bridge traffic exceeds 0 miles per hour, TCE Policy 1.1.1 allows the bridge road to continue to degrade. This is no standard at all. Capital Improvements Element Policy 1.3.3 commits the County to certain level of service standards for various services and facilities, including traffic circulation. That policy states in pertinent part that capital improvement projects adopted by Escambia County shall maintain level of service standards as reflected in the policy's tables. A schedule of level of service for Traffic Circulation Facilities is included in the policy. Capital Improvements Element Policy 1.3.3 establishes level of service standards for Special Transportation Areas, but does not establish specific level of service standards for Constrained Facilities and Backlogged Facilities. This policy commits to a level of service standard for Constrained Facilities for freeways, principal arterials, minor arterials, and others as "maintain." As to Backlogged Facilities, the policy commits to "maintain and improve" freeways, principal arterials, minor arterials, and others. As written, the level of service standards "maintain" and "maintain and improve" are not specific and measurable, are internally inconsistent with the specific level of service standards adopted in TCE Policy 1.1.1 (i.e., "C", "D"), and allow for future revision without undergoing the plan amendment process. The Capital Improvements Element (CIE) is required to include a policy for each objective which establishes level of service standards for public facilities within the local government's jurisdiction. These standards are required to be those found in the other local government comprehensive plan elements. The Drainage Sub-Element is required to include a policy addressing implementation activities for establishing and utilizing level of service standards for design storm return frequency for Drainage Facility Capacity. Drainage Sub-element Policy 2.1.3 adopts Rule 17-25.040(5), F.A.C., as the level of service standard for Stormwater Water Quality. That rule requires that facilities which directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Rule 17-25.025(9), which in turn requires an additional level of treatment equal to 50 percent more than the one-half inch requirement for sites less than 100 acres and one-inch of run-off from sites greater than 100 acres. CIE Policy 1.3.3 includes a level of service standard for drainage facilities. The policy states in pertinent part that for projects with drainage areas greater than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one inch of run-off from storm rainfall; for projects with drainage areas less than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one-half inch of run-off from storm rainfall; and for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration the level of service standard requires that a drainage system allow for discharges equal to pre-development levels unless an engineering analysis using professionally accepted methodologies demonstrates that a differing discharge rate should be used. This policy is internally inconsistent with Drainage Sub-element Policy 2.1.3 because CIE Policy 1.3.3 does not provide for the additional level of treatment for stormwater discharge facilities which directly discharge to Outstanding Florida Waters. CIE Policy 1.3.3 level of service standard for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration is not specific and measurable. This provision allows for the possibility of post- development run-off rate to exceed pre-development rates by allowing a different, presumably a higher, discharge rate to be used instead maintaining pre-development levels. There is no data and analysis to support an increase in discharge beyond pre-development levels. The Coastal Management Element is required to include an objective establishing level of service standards, areas of service and phasing of infrastructure in the coastal area. While CME Policy 1.8.1 establishes coastal area levels of services for sanitary sewer, solid waste, drainage, potable water, and recreation and open space, it does not include a level of service standard for traffic circulation. The primary sanitary sewer service provider in Escambia County is the Escambia County Utilities Authority. The data and analysis shows the existing level of service for sanitary sewer to range between 61.5 and 176 gallons per capita per day for wastewater treatment facilities owned by Escambia County Utilities Authority. For example, the Avondale facility has an existing level of service of 61.5 gallons per capita per day, the Mainstreet facility has an existing level of service of 99.8 gallons per capita per day, and the Navarre Beach Facility has an existing level of service of 176 gallons per capita per day. Sanitary Sewer Sub-element Policy 1.2.1 states: Escambia County hereby adopts 75 gallons per capita per day as level of service standard for the provision of sanitary sewer facilities in the Escambia County Utilities Authority service area, and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. Sanitary Sewer Sub-element Policy 1.2.3 states: "The County, through a Certificate of Availability, shall verify the capacity of public sewer systems prior to issuing development permits to ensure that adequate capacity to meet level of service standards (which is 100 gallons per capita per day) is available." The 100 gallons per capita per day level of service referenced in this policy is inconsistent with Sanitary Sewer Sub-element Policy 1.2.1 which adopts a level of service of 75 gallons per capita per day for Escambia County Utilities Authority Facilities and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. This internal inconsistency creates confusion as to which level of service standard is in fact being adopted and will be used for the issuance of development orders. The County is responsible for the disposal of all solid waste within its jurisdiction through the County's Department of Solid Waste. The level of service is established in Solid Waste Sub-element Policy 1.1.1 which states: "The County will provide the capacity to dispose of 7 pounds of solid waste per capita per day." Table 11 of the Solid Waste Sub-element Data and Analysis shows the projected generation of solid waste for the County from the year 1986 through the year 2000. Table 11 Projected Generation for Escambia County Year County Population Annual Tonnage lbs/capita/day 1986 230,250 309,000 7.4 1990 255,552 324,450 7.0 1995 274,520 340,670 6.8 2000 289,368 357,700 6.8 There is no data and analysis which relates the actual capacity of the landfill with the need projections of Table 11. Hence, the data and analysis fails to adequately support Solid Waste Sub-element Policy 1.1.1 and the policy's assurance that the County will provide adequate land-fill space. Potable Water Sub-element Policy 1.1.1 adopts two levels of service standards for the provision of potable water: Escambia County Utilities Authority - 75 gallons per capita per day and all other service providers - 100 gallons per capita per day. Escambia County is served by 10 public water supply systems, none of which are operated by the County. The largest public water supply system is operated by Escambia County Utilities Authority which has an existing level of service of 157.3 gallons per capita per day in Zone 2 and 101.6 gallons per capita per day in Zone 1. Table 12 of the Potable Water Sub-element Data and Analysis shows water system demand and plant facilities for 15 facilities, including facilities operated by private owners, the Town of Century, the Special District of Escambia Utilities Authority, and the Federal Government, Santa Rosa County, and the State of Florida. Nine of the facilities not operated by Escambia Utilities Authority are below 100 gallons per capita per day. The data and analysis do not adequately support Potable Water Sub- element Policy 1.1.1 and the aim of the policy to ensure that service providers currently providing less than 100 gallons per capita per day be able to meet that level in the event of future demand. AFFORDABLE HOUSING The Housing Element of the plan is required to contain an objective providing adequate sites for housing for low and moderate income families, and for mobile homes. The Housing Element's data and analysis concludes that affordable housing for persons in the very low, low and moderate income ranges should not exceed 30 percent of family income. By 1987 standards, these family income limits translate into less than $13,151 for very low income families and between $13,152 and $21,040 for low/moderate income families. The data and analysis does not state what the demand for new affordable housing construction will be through the planning period. Housing Element Objective 1.2 states: "Based on existing available resources provide for the rehabilitation of a minimum of 90 substandard homes and 10 new affordable housing sites annually." This objective is not quantitatively supported by the data and analysis and fails to describe the types of housing that will be constructed at the sites, i.e., single family dwellings, multi-family dwellings, or apartment buildings. The Housing Element is required to include a policy for each objective which addresses implementation activities for the improvement in the regulatory and permitting processes, if deemed necessary by the local government. Housing Element Policy 1.1.4 states: Develop a permit review process (that will include a checklist and flow chart) that will take into consideration the following aspects in order to expedite and help facilitate affordable housing projects: Fast track permitting process which will provide for concurrent review of all permits; Waiving or use of weighted permit fees; and Waiving or use of weighted County imposed impact fees. Although the need to improve the regulatory and permitting processes is identified, there is no assurance that the methods to expedite affordable housing projects outlined in Housing Element Policy 1.1.4 will be implemented because the policy merely states that those methods will be taken "into consideration." The policy is subject to interpretation and may or may not be implemented despite the identified need to expedite affordable housing projects. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN For the reasons set forth below, the plan is inconsistent with the state plan, construced as a whole. The plan is not consistent with and fails to further State Comprehensive Plan Goal 5(a) relating to housing, which states: The public and private sectors shall increase the affordability and availability of housing for low- income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost-effective operations. The vagueness of Objective 1.2 of the plan's housing element fails to further this goal or policy 3 of this state goal, which relates to increasing housing availability for low and moderate income persons and elder persons. Policy 4 of this goal addresses reduction of housing costs through elimination of unnecessary regulation which adds to the cost of housing. The plan's lack of specific implementing actions that will be taken with regard to this policy establishes that the plan is not consistent with and does not further this state goal. Densities and intensities of land use in the plan which increase runoff and inadequacies of level of service for drainage facilities make the plan inconsistent with state goal 8(a) relating to water resources and the need to assure availability of water quantity for reasonable and beneficial uses while maintaining the present level of surface and ground water quality. These inadequacies of the plan also fail to further policy 8(b)2 of the state goal requiring the identification and protection of water recharge areas. The plan also fails to further state policy 8(b)5 of this goal since the plan does not ensure that new development will be compatible with existing local and regional water supplies. The distribution pattern and intensities and densities of land use and the plan's inadequate approach to existing and future deficiencies of drainage issues also prevent the plan from being consistent with state policies 8(b)8-13, which seek to encourage development of floodplain management; preserve hydrologically significant wetlands and other natural floodplain features; support the protection of aquifers from depletion and contamination; protect surface and groundwater quality and quantity; promote water conservation; provide for elimination of discharge of inadequately treated wastewater and stormwater runoff into the waters of the state; and support alternative methods of wastewater treatment, disposal, and reuse to reduce degradation of water resources. The plan fails to further and is not consistent with state goal 9(a) which provides: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the state's population additional beaches and marine environment, consistent with sound environmental planning. Policies of this goal include: Policy 1 which seeks the acceleration of public beach acquisition; policy 2 which ensures public beach access; policy 3 which emphasizes the importance of avoiding expenditure of funds to subsidize development of coastal high hazard areas; policy 4 which protects coastal resources, marine resources and dune systems from the adverse effects of development; policy 5 which seeks development of a planning system ensuring the continued attractive image of coastal areas; policy 6 which requires compatibility of land and water uses with protection of sensitive coastal resources; policy 7 which requires protection and restoration of productivity of fisheries and habitat; and policy 9 which prohibits development of other activities which disturb dune systems. The plan is not consistent with either the goal or policies 1-7 and 9 due to the plan's inadequacies with regard to preservation or conservation of coastal resources; density and development patterns along the coastal area; level of proposed development; and the failure of land uses on the future land use map to be compatible with sensitive coastal resource protection. The plan is inconsistent with and does not further state goal 10(a) which requires the protection of unique natural habitats and ecological systems such as wetlands and various vegetative species, as well as restoring degraded natural systems to a functional condition. Deficiencies within the plan's objective and policies, as well as the failure to depict wetlands and floodplains on an adopted FLUM, prevent a finding that policy 1 of the goal, regarding conservation of forests, wetlands, fish, marine life, and wildlife, is consistent with or furthered by the plan's objectives and policies. Other policies of this goal where objectives, goals and policies of the plan fail to establish specific implementing actions necessary to a finding of consistency with the state plan include: Policy 2 regarding the acquiring, retaining, managing, and inventory of public lands to provide recreation, conservation, and other public benefits; policy 3 relating to prohibition and destruction of endangered species and protection for their habitats; policy 4 relating to establishment of an integrated regulatory program to assure the survival of endangered and threatened species within the state; policy 5 relating to the promotion of agricultural practices compatible with protection of wildlife and natural systems, which is specifically not supported by the plan's relatively high residential densities in some agricultural areas of 1-5 units per acre; policy 6 relating to maximizing use of forest resources where again the plan's densities and distribution of those densities on the land use map prevent consistency; policy 7 relating to protection and restoration of the ecological functions of wetland systems; policy 9 relating to an acquisition program to ensure the integrity of Florida's river systems, which is unsupported by any provision of the plan to establish such a county program; policy 10 relating to acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation; and policy 11 relating to state and local efforts to provide recreational opportunities to urban areas, including the development of activity-based parks. The plan is inconsistent with and does not further state goal 16(a), which states: In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Likewise the plan is inconsistent with and fails to further policy 2 of state goal 16(a), relating to development of incentives and disincentives to encourage separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. The failure to further this policy highlights the fundamental shortcoming of the plan as to densities and intensities and distribution of those uses. Policies 4 and 6 of state goal 16(a) are not furthered by and are inconsistent with the plan. Policy 4 provides for development of a system of intergovernmental negotiation for siting locally unpopular public and private land uses, but the plan does not provide how the county will address this subject. Policy 6 requires consideration, in land use planning and regulation, of the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. The distribution of land uses shown on the future land map and the lack of adequate policies prevent the plan from furthering this policy. Goal 20 of the State Plan relates to transportation and provides: Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. The plan does not address coordination between land uses and the transportation system. Therefore this goal is not furthered by the plan. Policy 3 of Goal 20 relates to promotion of a comprehensive transportation planning process coordinating state, regional, and local transportation plans. The plan adopts a level of service "F" for the Pensacola Bay Bridge which designation fails to provide any point at which development orders should be denied. This adopted level of service permits unlimited degradation and therefore does not further and is not consistent with the state plan. Policy 12 of Goal 20 of the state plan requires local governments to eschew transportation improvements which encourage increased development in coastal high-hazard areas or in environmentally sensitive areas such as wetlands, floodways, or productive marine areas. The high densities of use provided in the plan for coastal areas will inevitably cause demand for improved transportation systems in these areas and consequently fail to further this policy. The requirement of policy 13 of goal 20 to coordinate transportation improvements with state, local, and regional plans is not furthered by a level of service designation in the plan, such as the one for Pensacola Bay Bridge, which does not ensure that improvements can be coordinated. A level of service designation such as that accorded the bridge permits complete degradation without necessarily requiring coordination for expansion of the facility. The plan fails to address, and thus does not further, Policy 14 of goal 20, addressing acquisition of advanced rights-of-way for transportation projects in designated transportation corridors consistent with state, regional, and local plans. Policy 15 of goal 20, relating to promotion of effective coordination among various modes of transportation in urban areas to assist urban development and redevelopment efforts, is not addressed or furthered by the plan. The plan is not consistent with and does not further transportation goals and policies of the state comprehensive plan. The lack of adequate policies and high density of residential use in agricultural areas in the plan prevent the plan from furthering goal 23 of the state comprehensive plan, which reads as follows: Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, agriculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Goal 26 of the state comprehensive plan reads as follows: Systematic planning capabilities shall be integrated into all levels of government in Florida, with particular emphasis on improving intergovernmental coordination and maximizing citizen involvement. Policy 4 of Goal 26 relating to the need to simplify, streamline, and make more predictable the existing permitting procedures, is not furthered or consistent with plan as a result of the plan's failure to adequately define what would be done to simplify the regulatory process. CONSISTENCY WITH THE REGIONAL POLICY PLAN The plan is inconsistent with the West Florida Regional Policy Plan (the regional plan), construed as a whole, for the reasons listed below. The vagueness of Housing Element objective 1.2 with regard to provision of 10 new housing sites is inconsistent with Regional Goal 2 of Regional Issue 19, related to housing, contained in the regional plan. The plan fails to further that goal, which provides: By 1990, affordable, safe and sanitary housing for low and moderate income households and the elderly population which will increase by 10% over 1985 levels. The failure of the plan to address Goal 3 of Regional Issue 19 contained in the regional plan with regard to elimination of housing discriminatory practices is a significant inconsistency with the regional plan. The failure of the future land use map to identify existing and planned waterwells constitutes an inconsistency with goal 1 of regional issue 37 of the regional plan. That goal reads: By 1995, Regional water supply authorities shall be established throughout the Region which shall adopt water supply plans that incorporate water conservation programs, protection of water recharge areas and existing and future well sites, and identify vulnerable water supplies that local governments should regulate to limit development. As a result of the failure of the plan to set out densities and intensities of land use which serve to protect natural resources, as well as deficiencies of the plan with regard to drainage facilities, the plan does not further regional goal 1 of regional issue number 38. That goal provides: By 1995, the Region's potable aquifers shall be protected from depletion and contamination to ensure adequate quality of the Region's water resources to meet current and long-term needs for all reasonable-beneficial uses. Inadequate protective policies within the plan are inconsistent with the regional plan. Some of those inadequacies include inadequate drainage level of service standards, allowance of septic tanks in unsuitable areas, and high densities covering high aquifer recharge areas with impervious services. These plan policies are inconsistent with regional goal 1 of regional issue 39, Natural Systems Protection, which provides: By 1995, 10 percent of regional natural water systems will be protected, maintained, and their natural processes restored. The densities and intensities of use proposed by the plan for the barrier islands and in some of the coastal areas are very high and negatively impact resources of the land. This is particularly so with regard to densities and intensities of use established in Pensacola Beach, Navarre Beach and Perdido Key areas. The inadequacies of policies within the plan do not further goal 1 of issue 40 of the regional plan relating to protection of beach and dune systems. That goal reads: By 1990, land use guidelines will be adopted which protect beach and dune systems. Goal 1 of regional issue 41 is not furthered by provisions of the plan, specifically the lack of adequate level of service standards for drainage. This goal of the regional plan provides: By 1990, land use and coastal zone planning will be coordinated with the protection and management of marine fisheries habitat. Regional issue 43 of the regional plan addresses protection of natural resources. Goal 1 of that issue is not furthered due to the previously mentioned inadequacies of the plan, plus the lack of inclusion of a wetlands map and floodplains map as part of the adopted comprehensive plan. This goal of the regional plan provides: By 1990, state and local regulatory programs shall be designed to appropriately use and protect the Region's functioning natural systems. Endangered and threatened species are addressed by issue 44 of the regional plan. Goal 1 of that issue provides: By 1995, the number of native species in the Region on the official list of Endangered and Potentially Endangered Species of Fauna and Flora in Florida (FGFWFC) shall be reduced by 5 percent. The lack of planning directives and controls upon development in the county by goals, objectives and policies of the plan, prevents a finding that the plan furthers this goal. Regional issue 45 regarding the management of public and private land in a manner that permits continued functioning of natural systems is not furthered by the plan. Again, the densities and intensities of use established by the plan; the lack of control over development permitted by the plan; and specifically, the failure of the plan to include an adopted map of wetlands and floodplains establishes the plan's failure to further goal 1 of this issue. That goal provides: By 1990, public and private lands will be managed and land resources used according to comprehensive, economic and environmental principles, especially critical areas including, but not limited to coastal lands, wetlands, flood plains, margins of estuarine nursery areas, and locally important agricultural lands. Regional issue 58, regarding natural resource preservation and coordination between potable water and wastewater treatment facilities and land uses with regard to aquifer protection, is not furthered by the plan in view of the plan's provisions which fail to discourage urban sprawl and, instead, permit urban development to spread and negatively impact natural systems. Goal 1 and goal 2, respectively, of this issue of the regional plan read as follows: Regional goal 1 By the year 1991, local land use planning will be fully coordinated with planning for the provision of potable water and wastewater treatment and disposal. Regional Goal 2 By the year 1991, each local government in the Region will use review procedures that consider cumulative impact of development on natural resources. Neither of these goals is furthered by the plan. Because level of service standards established in the plan's Capital Improvements Element (CIE) permit inadequate roadway level of service standards with regard to the Pensacola Bay Bridge and permit the change of such level of service standards simply by having a roadway definitionally reclassified, regional issue 63 and regional goal 1 of that issue are not furthered by the plan. Regional goal 1 of the issue reads: By 1995, all modes of transportation planning will be integrated to efficiently, economically and safely accommodate transportation needs in the West Florida Region. Regional issue 64 addresses transportation planning to aid growth management. Regional goal 1 of the issue provides that planned development patterns and land use permitting will conform and coordinate with existing or programmed state and local transportation systems by 1991. Regional goal 2 of this issue provides that land development codes will include an analysis of transportation impacts, provide for protection of transportation rights-of-way, and establish private sector sharing of the cost of transportation facilities by 1991. Inasmuch as traffic analysis under the plan appears based on historical projections, as opposed to the impacts of future land use permitted by the plan, the plan does not further this issue or goals 1 and 2. Regional issue 69 of the regional plan and goals 1 through 4 of that issue are not furthered by the plan in view of the relatively high densities and intensities of residential use permitted in agricultural areas. Such usage for residential purposes does not ensure that agriculture will be protected.
Recommendation Based upon the foregoing findings and fact and conclusions of law, it is hereby recommended that a final order be entered finding that the Escambia county Comprehensive Plan is not in compliance. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992.
