The Issue The sole issue is whether the Petition to establish the District meets the applicable factors set forth in Section 190.005, Florida Statutes.
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The sole issue to be addressed is whether the amendment of the boundaries of The Crossings at Fleming Island Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the undersigned Administrative Law Judge recommends that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, amend the boundaries of The Crossings at Fleming Island Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report of Findings and Conclusions as Exhibit 3. DONE AND ENTERED this 22nd day of December, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of December, 1998. COPIES FURNISHED: Robert Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2101 Capitol Tallahassee, Florida 32399-0001 Elizabeth C. Bowman, Esquire Jonathan T. Johnson, Esquire Hopping, Green, Sams and Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 David Schwartz, Esquire Office of the Governor Florida Land and Water Adjudicatory Commission The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue Whether Martin County Comprehensive Plan Amendment 13-5, adopted by Ordinance 938 on August 13, 2013, as amended by Ordinance 957 on July 8, 2014, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties and Standing Respondent, Martin County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Petitioner, Midbrook 1st Realty Corp. (Petitioner), owns real property and operates a business in Martin County. On August 13, 2013, the County held a public hearing and adopted Ordinance 938, amending chapters 1, 2, and 4 of the Comprehensive Plan. On July 8, 2014, the County held a public hearing and adopted Ordinance 957, further amending chapters 1, 2, and 4 of the Comprehensive Plan. The plan amendments adopted by Ordinance 938, as amended by Ordinance 957, are the subject of this challenge and are referred to herein as the “Operative Amendments.” Petitioner submitted written and oral comments to the County concerning the Operative Amendments during the period of time between transmittal and adoption of the Operative Amendments. Intervenor, 1000 Friends of Florida (1000 Friends), is a Florida not-for-profit organization with a substantial number of members residing in Martin County who are engaged in matters related to the use and development of land, and the impacts therefrom, as set forth in the Comprehensive Plan. Participation in the County’s comprehensive planning process is part of 1000 Friends’ mission. 1000 Friends submitted written comments to Martin County during the period of time between transmittal and adoption of the Operative Amendments. Intervenor, Martin County Conservation Alliance, Inc. (MCCA), is a Florida not-for-profit organization incorporated in the State of Florida in 1997, with members who reside in, own property in, or operate businesses in Martin County. Representation of its members in proceedings concerning the Comprehensive Plan is part of MCCA’s mission and function, and the organization has been recognized as a party in previous administrative proceedings involving the Comprehensive Plan. MCCA submitted oral and written comments to Martin County during the period of time between transmittal and adoption of the Operative Amendments. Intervenor, Treasure Coast Environmental Defense Fund, Inc., d/b/a Indian Riverkeeper (Riverkeeper) is a Florida not- for-profit organization operating in Martin County which was incorporated in 1999 for the purpose of encouraging and assisting in enforcement of federal, state, and local environmental laws and regulations through lawsuits and administrative proceedings, as well as engaging in scientific and educational programs. A substantial number of Riverkeeper’s members reside in, own property in, or operate businesses in Martin County. Riverkeeper submitted oral comments to Martin County during the period of time between transmittal and adoption of the Operative Amendments. Municipal Intervenors are local governments adjoining Martin County whose residents all reside and/or own property, or operate businesses in Martin County. The Town of Jupiter Island adopted Resolution 728 on December 17, 2013, in which it found, in pertinent part, as follows: WHEREAS, the Town Commission finds that a successful challenge by the Petitioners resulting in the repeal of these plan amendments would produce substantial impacts on areas in the Town which have been designated for protection or special treatment; and * * * WHEREAS, the Town Commission finds that a successful challenge by the Petitioners would increase the need for publically [sic] funded infrastructure, including the beaches and roads in the Town, and the Town’s operation of its utility. The Town of Seawall’s Point adopted Resolution 792 on December 10, 2013, in which the Town Commission found that “successful challenge by the Petitioners . . . would increase the need for publically [sic] funded infrastructure.” The City of Stuart adopted Resolution 152-2013 on December 9, 2013, in which the City Commission found that “successful challenge . . . would increase the need for publically [sic] funded infrastructure.” Background EAR Amendments The County’s original Comprehensive Plan was adopted in 1990 and was challenged by the Department of Community Affairs (DCA) as not “in compliance.” Since its inception, the Comprehensive Plan has been the subject of substantial litigation, most of which has little relevance hereto. At least once every seven years, local governments are required to undertake an evaluation and appraisal of their comprehensive plans. See § 163.3191(1), Fla. Stat. During this evaluation, local governments must amend their plans to reflect changes in state requirements. See § 163.3191(2). The statute also encourages local governments to comprehensively evaluate changes in local conditions, and if necessary, update their plans to reflect said changes. See § 163.3191(3). Local government plan amendments made pursuant to section 163.3191 are commonly referred to as “EAR amendments.” The County adopted its most recent EAR amendments in 2009, following an evaluation and appraisal of the Comprehensive Plan and changes in state requirements. The 2009 EAR amendments were challenged by a number of parties as not “in compliance.” Administrative challenge to the EAR amendments concluded, and the amendments became effective in 2011. Operative Amendments Adoption Process3/ The Operative Amendments originated with former County Commissioner Maggy Hurchalla, who made a presentation to the County Commission at its regular meeting on November 20, 2012, during which she proposed amendments to the Comprehensive Plan. On December 11, 2012, the County Commission conducted a public workshop on amendments proposed by Ms. Hurchalla. The workshop agenda included draft Comprehensive Plan amendments in legislative (strike-through/underline) format, a summary of the amendments, and a draft resolution by which the County could initiate the proposed changes as text amendments to the Comprehensive Plan. The County Commission adopted the resolution initiating the amendments on that date. On February 12, 2013, the County Commission held the first of three public meetings to discuss the proposed amendments to the Comprehensive Plan. The meeting focused on proposed changes to chapter 1, the Preamble to the Comprehensive Plan. The meeting materials included Ms. Hurchalla’s proposed amendments with highlighted comments from the County’s planning staff. On February 26, 2013, the County Commission held a second public meeting to discuss proposed changes, this time focusing on chapter 2, the Definitions for the Comprehensive Plan. Proposed changes to chapter 2 included incorporating “Overall Goals” of the Comprehensive Plan, as well as some new and revised definitions. The meeting materials included Ms. Hurchalla’s proposed changes with highlighted comments from County planning staff. On March 5, 2013, the County Commission held a third public meeting to discuss proposed changes to the Comprehensive Plan, this time focused on changes to chapter 4, the Future Land Use Element (FLUE). These changes were proposed by County staff to maintain consistency among chapters 1, 2, and 4. On March 21, 2013, the Martin County Local Planning Agency (LPA) held a public hearing to consider Comprehensive Plan Amendment (CPA) 13-5, the product of Ms. Hurchalla’s original proposal, as developed through three discussion meetings with the County Commission and planning staff. At the LPA meeting, staff recommended approval of the changes, and included a matrix which analyzed each change by section, goal, objective, or policy number, as applicable. The agenda packet included all public comments regarding the proposed amendments received by the County subsequent to the February 12, 2013, meeting. On April 16, 2013, the County Commission held a public hearing on proposed CPA 13-5. The Commission held a second public hearing on April 26, 2013, and voted to transmit the amendments to the state reviewing agencies, pursuant to section 163.3184(3). County staff provided the County Commission with all state agency comments at a meeting on June 18, 2013, wherein County staff recommended additional changes to the Plan Amendment, and the Commission voted to schedule a public hearing on adopting CPA 13-5. On July 9, 2013, the County Commission conducted a public hearing on CPA 13-5, directed staff to make changes to the amendments to address certain agency comments, and continued the public hearing to August 13, 2013. The Commission adopted CPA 13-5 by Ordinance 938 at the public hearing on August 13, 2013. The record supports a finding that the County complied with all public notice requirements for the LPA public hearing, and the County Commission public meetings and public hearings conducted related to CPA 13-5. On July 8, 2014, the County Commission adopted CPA 14- 7 by Ordinance 957, further amending chapters 1, 2, and 4 of the Comprehensive Plan. The record supports a finding that the County held the required public hearings required for adoption of CPA 14-7 and complied with applicable public notice requirements for said public hearings. Urban Service Districts A major reason for the DCA’s compliance determination on the County’s 1990 Comprehensive Plan was that it did not discourage urban sprawl. The state’s challenge to the Comprehensive Plan was resolved by a compliance agreement under which the County amended the Comprehensive Plan to incorporate primary and secondary urban service districts (USDs). There are two locations of the USDs. The Eastern USD is located east of the Florida Turnpike, and the Indiantown USD is located in western Martin County. According to the 2009 data on which the existing Comprehensive Plan is based, 87 percent of the County’s population resides east of the Florida Turnpike. The Eastern and Indiantown USDs are separated by roughly 12 miles of mainly agricultural land. The purpose of the USDs is to regulate urban sprawl by directing growth to areas where urban public facilities and services are available, or programmed to be available, at appropriate levels of service. Public urban facilities and services are defined by the Comprehensive Plan as “[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Commercial, industrial, and urban-density residential development, as well as future development requiring public urban facilities, is concentrated within the primary USD. The boundaries of the primary USD may be expanded only when “reasonable capacity does not exist on suitable land in the existing [primary USD] for the 15-year planning period.” Rural and estate densities not exceeding one unit per acre (one unit/acre) are concentrated in the secondary USD where a reduced level of public facility needs are programmed to be available at appropriate levels of service. The boundaries of the secondary USD may only be expanded when “[r]easonable residential capacity does not exist on suitable land in the existing [secondary USD] for the 15-year planning period.” Development outside the USDs is limited to low- intensity uses, including Agricultural (not exceeding one unit/20 acres), Agricultural Ranchette (not exceeding one unit/five acres), and small-scale services necessary to support rural and agricultural uses. Some residential estate development is allowed on the fringe of the USDs at one unit/acre. Petitioner’s Challenges A. Residential Needs Analysis Petitioner’s first overarching challenge is with the County’s methodology for determining need for future residential development. Need is determined using the basic variables of demand and supply, or capacity. Demand is, in turn, driven by projected population growth. Petitioner challenges each of the methodologies for calculating future need – population projections, residential demand analysis, and residential capacity analysis – each of which is taken in turn. Population Projections Section 163.3177(6)(a)4. requires that a local government FLUE “shall accommodate at least the minimum amount of land required to accommodate the medium [population] projections as published by the Office of Economic and Demographic Research for at least a 10-year planning period[.]” Section 1.7.A of the Operative Amendments provides that “base data for population estimates and projections comes from the U.S. Decennial Census” and that “[i]n the years between the decennial Census, the permanent population estimates and projections provided by BEBR [Florida’s Bureau of Economic and Business Research] shall be used[.]” Petitioner assails Section 1.7.A as inconsistent with the statute because it relies upon BEBR population estimates rather than Office of Economic and Demographic Research (OEDR). Petitioner’s argument is not persuasive. BEBR provides population estimates and projections to OEDR pursuant to a contract between the two entities. BEBR population estimates and projections are professionally-acceptable data commonly relied upon by jurisdictions in the State of Florida. Section 1.7.A and Policy 4.1D.2 require County staff to annually produce a Population Technical Bulletin utilizing the BEBR medium population estimates for the County. Data from the Population Technical Bulletin are utilized in the County’s residential demand analysis. The 2013 Bulletin reported a permanent population (i.e., excluding population in prisons and group homes) of 124,120 in 2010, and a projected permanent population of 136,621 for the year 2020 and 143,653 for the year 2025. Thus, the percentage increase in population is 1.10 percent for the year 2020 and 1.16 percent for the year 2025. 2. Residential Demand Methodology Petitioner’s next objection is with the County’s methodology for determining residential housing demand, set forth in Section 1.7 and Policies 4.1D.3.4/ Petitioner urges that the methodology is neither professionally acceptable, nor “based upon relevant and appropriate data and analysis,” pursuant to 163.3177(1)(f). Policy 4.1D.3 provides the methodology for calculating residential housing demand, and reads as follows: 4.1D.3 Future residential housing demand. Future housing demand projections shall be based on all of the following: The demand for future residential housing units in the unincorporated area shall be based on the percentage increase in permanent population projected by the Population Technical Bulletin. Occupied housing units (HO) are classified by the Census as those residential units in use by permanent population. Vacant seasonal housing units (HS) are classified by the Census as those residential housing units that are seasonally occupied by residents who spend less than 6 months of the year in Martin County. Permanent and seasonal population in residential housing is served by housing units in actual use (HU). Housing units in actual use (HU) equals the occupied housing units (HO) plus vacant seasonal housing units (HS). HU = HO + HS Vacant housing not in seasonal use shall not be used in calculating housing unit demand, but shall be used in calculating supply. Hotel/motel units shall not be used in calculating residential housing demand. The projected demand for housing units in the future shall be determined by dividing the projected, permanent population (housing), as defined in Chapter 2, by the permanent population (housing) identified in the last decennial Census. Projected permanent population (housing) / Permanent population (housing) in the last decennial Census = percentage increase in demand. This percentage increase in demand multiplied by the housing units in actual use (HU) in the most recent census year equals the projected residential housing unit need in the future period. Percentage increase in demand x HU = projected housing unit demand. Petitioner contends that the methodology is flawed because it excludes unoccupied housing units other than seasonal units, such as vacant rental units and residential units for sale. As such, Petitioner argues the methodology is not professionally acceptable. The 2010 Census counted 5,228 vacant non-seasonal residential units in Martin County. Because the County’s demand methodology ignores those units in calculating residential demand, Petitioner argues the methodology is not based on relevant and appropriate data. To the contrary, vacant non-seasonal housing is a variable relative to residential housing supply, rather than housing demand. The appropriate methodology for calculating housing demand is occupied permanent and occupied seasonal housing units multiplied by the percentage increase in population over the planning period. The County’s methodology is professionally acceptable and does not ignore data available at the time the Operative Amendments were adopted. The County previously used this same methodology for projecting residential housing demand, but it was not adopted as part of the Comprehensive Plan. 3. Residential Demand Calculations In August 2013 the County produced a Residential Demand Analysis implementing the methodology adopted by the Operative Amendments. In accordance with Policy 4.1D.3(1), the demand for future residential housing in the unincorporated area of the County is based on the percentage increase in permanent population projected in the Population Technical Bulletin. Using the 2010 data supplied by the U.S. Census for the unincorporated area, the formula yields 54,709 occupied units, plus vacant seasonal housing units of 6,203, for a total yield of 60,912 housing units in use in the unincorporated area of Martin County. Applying the percentage increase in projected population of 1.10 for the planning period to 2020, and 1.16 for the planning period to 2025, yields a demand for 6,091 residential units for 2020, and 9,746 units for 2025. Petitioner alleges that the County failed to follow its methodology adopted in Policy 4.1D.3 because it utilized 2010 Census data, rather than data from “the most recent census year” as stated in subsection (6) for calculation of the housing units in actual use (HU). Petitioner’s expert, Kenneth Metcalf, testified that the “most recent census data would have been 2012, rather than 2010.” Thus, Petitioner argues that the Policy is likewise flawed because it is not based on the best available data. The issue boils down to one of semantics – whether the term “most recent census year” in subsection (6) has a different meaning than the term “Census” used in subsection (2) to define the data source for the number of occupied housing units (HO) and the number of vacant seasonal housing units (HS). Petitioner points to the use of the term “last decennial Census” used in subsection (5) as the data source for permanent population numbers. Petitioner concludes that the County knew that “last decennial Census” had a different meaning than “most recent census year” and intended for the updated census information provided between the decennial Censuses to be utilized as the data set for projecting housing unit demand. Petitioner’s argument ignores that the variable HU, utilized in the residential demand formula in subsection (6), is defined in subsection (3) as the sum of factors derived from Census data: HU = HO + HS, where HO is occupied housing units classified by the Census as those residential housing units in use by permanent population, and HS is vacant seasonal housing units classified by the Census as those residential housing units that are seasonally occupied. If one ascribes a different meaning to the term “most recent census” than the term “Census,” the formula itself would be useless. HU is derived in subparagraph (2) from census data with a capital “C,” meaning the decennial Census. That same variable cannot be input in paragraph (6) as derived from a different source. Petitioner’s theory likewise ignores that the Operative Amendments specify that, between decennial Census years, BEBR data shall be used in projections of demand for future residential housing units. See §§ 1.7.A and 4.2.A(8). Thus, if the County intended to use data more recent than the last Census, it would have specified BEBR data. Moreover, the definition of “vacant seasonal housing units,” is “[t]he decennial Census count for residential housing units that are occupied, but for less than six months of the year.” See § 2.4(186). Petitioner also assails the residential demand analysis as flawed because it is based exclusively on permanent population estimates in violation of section 163.3177(1)(f)3. The operative statutory section provides, “[t]he comprehensive plan shall be based upon permanent and seasonal population estimates and projections[.]” § 163.3177(1)(f)3, Fla. Stat. Contrary to Petitioner’s assertion, the demand methodology includes seasonal population projections. Under Policy 4.1D.3, one factor in projecting housing unit needs is the housing units in actual use (HU), which is based on both permanent and seasonal population in residential housing. Petitioner further contends that Policy 4.1D.3 conflicts with Section 1.7, which states, “appropriate resident and seasonal population figures are critical to the local government in assessing future needs for housing units,” rendering the Comprehensive Plan internally inconsistent, in violation of section 163.3177(2). In light of the finding that Policy 4.1D.3 does not exclude seasonal population in calculating residential demand, Petitioner’s allegation has no merit. 4. Residential Capacity Analysis Petitioner next contends that the residential capacity analysis (RCA) methodology is not “based upon relevant and appropriate data and analysis,” pursuant to 163.3177(1)(f); is “limited solely by the projected population,” in violation of 163.3177(1)(f)3.; is internally inconsistent with other provisions of the Comprehensive Plan, in violation of 163.3177(2); and, as such, does not “establish meaningful and predictable standards for the use and development of land,” pursuant to 163.3177(1). In essence, Petitioner argues that the RCA overestimates the supply of land needed to meet residential housing demand in the 10- and 15-year planning periods. Petitioner’s argument relies, in part, upon a comparison of the results of the RCA methodology under the Operative Amendments to the results from applying the RCA adopted in 2009. The numbers are curious, indeed. Utilizing the 2009 RCA, the County determined a total capacity of 16,025 residential units in the primary and secondary USDs. Utilizing the 2013 methodology, the County determined a total capacity of 26,446 residential units in the primary and secondary USDs. Obviously, the total numbers are not dispositive of the issue. An examination of the methodology is required. Policy 4.1D.5 provides the RCA methodology, and reads as follows:5/ Policy 4.1D.5 Residential capacity analysis. Martin County shall produce a residential capacity analysis every five years. Residential capacity defines the available residential development options within the Primary and Secondary Urban Service Districts that can meet the demand for population growth consistent with the Future Land Use Map. Residential supply shall consist of: Vacant property that allows residential uses according to the Future Land Use Map. The maximum allowable density shall be used in calculating the number of available units on vacant acreage. For the purpose of this calculation, the maximum allowable density for wetlands shall be one-half the density of a given future land use designation. Subdivided single family and duplex lots. The following lot types shall be included in the residential capacity calculation: Vacant single family or duplex lots of record as of 1982 developed prior to the County’s tracking of development approvals. Vacant single family or duplex lots of record platted after 1982. Potential for residential development in Mixed Use overlays. Multifamily residential site plans with final approval shall be counted as vacant property under (1) above until such time as Certificates of Occupancy are issued. Where Certificates of Occupancy are issued for a portion or phase of a final site plan, appropriate acreage shall be removed from the vacant land inventory. Appropriate acreage shall be the same percentage of the project acreage as the number of units with Certificates of Occupancy is to the total number of units for the final site plan. Excess vacant housing not in use by permanent or seasonal residents. Excess vacant housing is a vacancy rate higher than 3% of the number of housing units in actual use. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, Policy 4.1D.5 directs that the calculation begin by determining the maximum residential density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half the “lost” density associated with the wetland acreage to the uplands. Thus, in calculating the acreage of vacant lands available for residential development, the RCA subtracts half the acreage of wetlands. Other than wetlands, the RCA incorporates no limiting factors that prevent the attainment of theoretical maximum density on vacant acreage. The RCA methodology under the Operative Amendment differs from the 2009 RCA methodology which took effect in 2011. There are four major differences between the 2009 and the 2013 methodologies. First, the 2009 methodology included a deduction from vacant residential acreage of 8.5 percent to account for the loss of developable acreage due to presence of road rights-of- way and utility easements within which development is prohibited. Under the Operative Amendments, the RCA does not reduce available residential acreage to account for said infrastructure. The County offered no explanation for this change in the RCA methodology. Second, the 2013 RCA includes, as vacant residential acreage, subdivided but vacant lots in single family and duplex subdivisions. The County’s 2009 RCA did not include vacant lots in these “older” subdivisions as capacity. Including these units in the 2013 analysis accounted for approximately 3,300 residential units which were not counted as capacity in 2009. Samantha Lovelady is a Principal Planner for the County. She has a master’s degree in Urban and Regional Planning and is certified by the American Institute of Certified Planners. Ms. Lovelady testified that including the vacant lots is a more accurate reflection of residential capacity than that utilized in 2009. Third, the 2013 methodology counts as capacity vacant acreage within approved multifamily residential projects. Approved but unbuilt units in multifamily projects were counted as capacity in the 2009 RCA. The County tracks approved unbuilt projects through its Active Residential Development Program, or ARDP. In 2009, ARDP units were removed from the County’s vacant residential acreage analysis and counted as capacity in addition to vacant acreage. By contrast, the 2013 approach is based on acreage, rather than number of units. The 2013 approach first determines the percentage of total approved residential units to the number of units with certificates of occupancy. Then, the formula applies that same percentage to total project acreage to derive the “vacant acreage” of the multifamily project. Policy 4.1D.5(1) requires the County to utilize the theoretical maximum density of the underlying land use category to calculate the potential residential units on the vacant acreage in the multifamily projects, regardless of whether the overall project was approved for maximum density or some lesser density. The County’s main response to this allegation is that the total number of units derived from this part of the RCA was small, only 382, and that those units were counted under the former methodology, but outside the vacant acreage analysis. The County’s response misses the mark. The issue is not whether the methodology substantially increased the County’s capacity figures, but whether it is a professionally-acceptable method for gathering the data. Ms. Lovelady has been employed by the County for six years, and conducts statistical analysis, especially with regard to population projections, for the Planning Department and Metropolitan Planning Organization. Ms. Lovelady prepared both the 2009 and the 2013 Population Technical Bulletins. She also prepared both the 2013 Residential Demand Analysis and the 2013 Residential Capacity and Vacant Land Analysis based on the methodologies in the Operative Amendments. Ms. Lovelady testified that she would have calculated density on the vacant acreage at the same density as the built acreage within those developments. Ms. Lovelady further testified that she was not familiar with a methodology that calculated unbuilt acreage within a multifamily project at a density greater than the built acreage, either through professional planning literature or examples from any other communities. Ms. Lovelady’s testimony is accepted as competent and reliable.6/ Petitioner’s comprehensive planning expert, Dr. David Depew, also testified that the County’s methodology is not professionally acceptable because it ignores the development rights already assigned to the “vacant” property within approved multifamily projects. Based on the record evidence, the RCA methodology used to calculate the capacity of vacant acreage in approved multifamily developments is not professionally acceptable. Fourth, the formula includes as capacity “excess vacant housing” not in use by permanent or seasonal residents. For purposes of this calculation, the Operative Amendments define “excess vacant housing” as a vacancy rate in excess of three percent of the number of housing units in actual use. The variable allows for some vacancy rate in a “normal market,” but provides that excess vacancy is actually available to serve the projected population through the 10- and 15-year planning timeframes. The 2009 methodology did not include built, vacant housing in calculating residential capacity. Neither party presented any evidence on whether including vacant built housing in the RCA was professionally acceptable. Instead, the parties focused on the definition of excess as exceeding a three percent vacancy rate. Petitioner assails the three percent vacancy rate as neither appropriate nor professionally acceptable for the Martin County housing market. Yet, Petitioner introduced no evidence of a different vacancy rate which would be appropriate under normal market conditions. A three percent vacancy rate under normal market conditions in Florida is supported by the “Planner’s Estimating Guide, Projecting Land-Use and Facility Needs,” Arthur Nelson, FAICP, Planners Press, American Planning Association (2004).7/ Petitioner’s allegation with regard to use of the three percent vacancy rate in calculating residential supply was not proven beyond fair debate. 5. Merging Eastern and Indiantown USDs Petitioner argues that the 2013 RCA methodology exacerbates the distortion of residential capacity by considering together, or “merging,” the Eastern and Indiantown USDs in determining available capacity. The 2009 methodology treated the Eastern and Indiantown USDs separately for purposes of calculating residential demand and supply and arrived at separate housing needs determinations for the two USDs. Under the 2009 needs analysis, the County identified a shortfall of 616 units in the Eastern USD to meet demand for the 15-year planning period, and an oversupply of 6,260 units in the Indiantown USD for that same period. By comparison, the 2013 needs analysis yielded an oversupply of 20,768 units in the combined USDs to meet demand for the 10-year planning period, and an oversupply of 17,361 for the 15-year planning period. The 2009 methodology was based on population data showing that 87 percent of the County population resided east of the Florida Turnpike and an assumption that the trend would continue. The 2009 data showed an “imbalance” between the vacant land capacity in the Eastern and Indiantown USDs, and that, based on population projections for the Indiantown area, the imbalance was likely to continue. Having determined that separation of the USDs was appropriate for the County’s population trends, the County proceeded to calculate demand for the two areas separately. The County introduced no evidence of changed population data or trends to support aggregating the two USDs for purposes of calculating residential housing demand and supply in 2013. In fact, the data and analysis in the County’s 2013 Population Technical Bulletin revealed that 99.68 percent of the certificates of occupancy (COs) issued in the 2008-2012 timeframe were issued in areas east of the Florida Turnpike.8/ The County’s population projections by planning area, forecast 71.68 percent of the permanent population living east of the Florida Turnpike by the year 2020, and 86 percent by the year 2025.9/ The statistics are higher for the peak population during the same planning timeframes.10/ The County’s decision to combine the Eastern and Indiantown USDs in the 2013 methodology is not supported by relevant data and analysis available at the time the Operative Amendments were adopted. The County offers two explanations for the change, neither of which is persuasive. First, County staff testified that the County has always had only one primary and one secondary USD. County staff cited Policy 4.7A.7 as data supporting combining the Eastern and Indiantown USDs. Policy 4.7A.7, as renumbered by the Operative Amendments, sets forth the criteria for expanding the primary urban service district boundary. The policy does not mention either the Eastern or Indiantown USD. Ms. Lovelady did not explain how this policy relates to the issue of combining the Eastern and Indiantown USDs for purposes of calculating housing needs in the County.11/ Second, County staff argued that the Eastern and Indiantown USDs were only considered separately for the first time in the 2009 methodology, and that was in error. Separation of the two USDs for purposes of calculating housing demand and supply, as well as distributing housing capacity, was adopted in the 2009 EAR amendment, which was found “in compliance” in 2011. The undersigned cannot assume the 2009 methodology was flawed. This methodology was supported by data and analysis regarding the population distribution within the County. Further, County staff admitted that the housing demand has been, historically, lower in the Indiantown USD than in the Eastern USD. Ms. Lovelady offered her professional opinion that the difference in growth rate between the east and west areas is data supporting evaluating the housing needs separately. Neither the 2013 demand methodology nor the 2013 RCA is supported by data and analysis regarding population projections and trends in the County. Combining the Eastern and Indiantown USDs is not an appropriate reaction to data showing a disparity in growth rates between the two USDs. Petitioner proved, beyond fair debate, that neither Policy 4.1D.3 nor Policy 4.1D.5 is a professionally-acceptable method of collecting the applicable data. 6. Maximum Theoretical Density Although not a change between the 2009 and 2011 RCA, Petitioner also challenged the 2013 RCA as not based on data and analysis because it does not account for development restrictions which prevent a landowner from attaining maximum theoretical density. Petitioner’s expert, Dr. Depew, testified that the methodology ignores the fact that certain types of vacant land which may be designated for residential use cannot be developed at maximum capacity. Petitioner cited as examples, Policy 4.1F.2 (the County’s “tiered development” policy), as well as unspecified setback and buffering requirements, and the County’s former 8.5 percent reduction in vacant residential acreage to account for infrastructure needs. Policy 4.1F.2 prohibits approval of maximum density for projects located adjacent to lands approved for “lower density” uses. Application of the policy is project-specific and dependent on the location and uses of the surrounding properties. Required setbacks and buffers between land uses may be found in either the Comprehensive Plan or the County’s land development regulations. Setbacks and buffers are very dependent on location of the project and the characteristics of surrounding uses. For the reasons discussed in the Conclusions of Law, Petitioner did not prove beyond fair debate that the RCA is flawed because it does not account for limitations preventing attainment of maximum theoretical density. Real Estate Markets Section 163.3177(6)(a)4. requires that “the amount of land designated [by the local government] for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents[.]” Petitioner alleges the Operative Amendments contravene this provision by combining the Eastern and Indiantown USDs for purposes of residential housing capacity. Applying the 2009 methodology, the County concluded it could accommodate 94 percent of the residential need within the Eastern USD for the 15-year planning period, and 1,569 percent of the residential need for the Indiantown USD for that same period (an overcapacity of 6,260 units). Applying the 2013 methodology, combining the Eastern and Indiantown USDs, the County concluded that it can accommodate 466 percent of the residential housing need for the 10-year planning period and 291 percent for the 15-year planning period. Dr. Henry Fishkind is an economist with significant experience in analyzing real estate markets, as well as developing property for clients throughout Florida. He testified, credibly, that the residential housing market in the eastern part of the County is unique and distinct from the Indiantown market. The eastern market is characterized by high- value coastal property, including golf course communities and master-planned developments. By contrast, the “market in and around Indiantown is relatively affordable housing for people who either work in the agricultural industries thereabouts, or travel south into West Palm Beach and Broward. There is very little seasonal or high-end housing.12/ Dr. Fishkind concluded that the County’s methodology interferes with operation of the housing market, limits choices, limits supply, and increases prices. In response to Dr. Fishkind’s testimony, the County offered the testimony of Charles Pattison, Policy Director for 1000 Friends, who was qualified as an expert in comprehensive planning. Mr. Pattison’s testimony on the issue was conclusory in nature. He expressed the opinion that the Operative Amendment “does not violate that standard” and that, under the Amendment, when there is a shortfall in residential capacity, the County could “potentially expand the urban service area boundary or just [] provide additional capacity inside the urban boundary.” Mr. Pattison professed no expertise in, or familiarity with, the housing markets in the Indiantown and Eastern USDs or relate his testimony to the economic impact of merging the two USDs for purposes of calculating residential capacity. Dr. Fishkind’s testimony is accepted as more persuasive on the issue. The County argues that the Operative Amendments are not contrary to section 163.3177(6)(a)4., because they do not change the amount of land designated for any future land use category. The County is correct that the Operative Amendments do not include any change to the Future Land Use Map (FLUM). However, under the Operative Amendments, there is a direct, fundamental relationship between the RCA and the County’s ability to accommodate future urban residential demand within the primary and secondary USDs. Policy 4.1D.6 provides, The residential capacity analysis will determine if the future demand for residential units exceeds the supply for residential units as provided in the residential capacity analysis. When the undeveloped residential acreage within either the Primary Urban Service District or the Secondary Urban Service District no longer provides for projected population growth for the fifteen year planning period, planning for expansion of residential capacity shall commence. When the undeveloped acreage within either the Primary Urban Service District or the Secondary Urban Service District provides for no more than 10 years of projected population growth, the County is required to expand capacity. By spreading the capacity to meet housing demand across both the Indiantown and Eastern USDs, the Operative Amendments effectively increase the threshold which triggers expansion of, or a density increase within, the USDs. It is illogical, and perhaps contrary to the intent of the statute, to require an affected person to wait for a FLUM amendment changing the amount of land designated for urban uses, to challenge the methodology by which that decision was made. Especially when the challenge relies upon an argument that the methodology is designed to prevent, or at least delay, said FLUM amendment. Commercial and Industrial Lands Petitioner asserts that Policy 2.4C.3 limits the extent of commercial and industrial land uses to population growth, and is thus not based upon relevant and appropriate data and analysis as required by section 163.3177(1)(f).13/ Policy 2.4C.3 reads as follows: Policy 2.4C.3. The county shall limit commercial and industrial land use amendments to that needed for the projected population growth for the next 15 years. The determination of need shall include consideration of the increase in developed commercial and industrial acreage in relation to population increases over the preceding ten years, the existing inventory of vacant commercial and industrial land, and the goals, objectives, and policies of the [Comprehensive Plan], including the Economic Element. The County shall update this analysis at least every two years. While the first sentence appears to limit commercial and industrial land uses based solely on population growth, the remainder of the policy includes other variables, such as existing vacant commercial and industrial land and policies within the Economic Element. This fact was confirmed by Mr. Pattison’s testimony. Petitioner did not demonstrate beyond fair debate that the Policy 2.4C.3 is not based on data and analysis. The “Stricter Rule” Among the contested provisions in Chapter 1, is language providing that where two or more policies conflict, the stricter policy will govern. The applicable provisions read, as follows: Section 1.1 – Purpose * * * In furtherance of these purposes the more restrictive requirements of this chapter and of the overall goals, objectives and policies of Chapter 2 shall supersede other parts of the Plan when there is conflict. * * * Section 1.4. – Comprehensive Basis * * * Where one or more policies diverge, the stricter requirement shall apply. Where a subject is addressed by two or more provisions of the Comprehensive Plan, all provisions apply, and the stricter provision shall prevail to the extent of conflict. Plan policies addressing the same issue shall be considered consistent when it is possible to apply the requirements of both policies with the stricter requirements governing. Petitioner first argues that this “stricter rule” both acknowledges and enables internal conflict within the Comprehensive Plan contrary to section 163.3177(2), which requires the several elements of the comprehensive plan “shall be consistent.” Rules of interpretation, such as the stricter rule, are commonly found in local government comprehensive plans. The fact that the County included the stricter rule of interpretation is not evidence, in and of itself, that inconsistencies exist within the Comprehensive Plan. Petitioner cited a single example14/ of an internal inconsistency: Objective 2.2A and Policies 2.2A.1 and 2.2A.2.15/ Objective 2.2A expresses the County’s objective to preserve “all wetlands regardless of size unless prohibited by state law.” Policy 2.2A.1 provides, “[a]ll wetlands shall be preserved except is [sic] set out in the exceptions listed below.” Policy 2.2A.2 provides three exceptions to the requirement that all wetlands be preserved. Dr. Depew testified that the statements are contradictory and it is not clear which one is stricter. Dr. Depew’s testimony, as to this issue, is not accepted as either credible or persuasive. The cited objective and policies set out a general rule with a series of exceptions, not an uncommon legislative construction. The provisions are not in conflict. Thus, the stricter rule does not apply. Petitioner’s cited example is insufficient evidence on which to base a finding that the stricter rule acknowledges any internal inconsistencies. As to Petitioner’s contention that the stricter rule enables unspecified inconsistencies to continue indefinitely, no credible evidence was presented. County staff acknowledged that conflicting provisions in the Comprehensive Plan have been discovered in the past, usually when reviewing a specific application for development order. Nicki Van Vonno, the County’s Director of Growth Management, described the process by which conflicting policies have been reconciled by staff. No evidence was introduced on which to base a finding that once the County discovered conflicting provisions, the County failed to correct said conflicting provisions. The undersigned cannot infer that fact from the evidence. Petitioner next contends the stricter rule lacks meaningful guidance in determining which policy or provision would apply in the event of conflict. Ergo, Petitioner argues, the provisions render the Comprehensive Plan lacking in “meaningful and predictable standards for the use and development of land” as required by section 163.3177(1). In support of its argument, Petitioner highlights that the Comprehensive Plan does not define the term “stricter,” leaving staff without guidance in determining which unspecified conflicting provision would apply in a particular development scenario. Section 2.4.10 of the Comprehensive Plan provides that where a term is undefined, it shall be given its customary, or ordinary, meaning. The plain and ordinary meaning of strict is “stringent in requirement or control.” Merriam Webster 2d www.merriam-webster.com/dictionary. Clyde Dulin was the County’s Senior Planner responsible for preparation of agenda items and packages for the County Commission on the Operative Amendments. Mr. Dulin is currently a principal planner with the County. In his experience interpreting the County’s Comprehensive Plan, he has been called on to reconcile conflicting provisions, especially with regard to conflict between the plan and the County’s land development regulations. Mr. Dulin acknowledged that County staff may be likewise required to reconcile any conflict if the Operative Amendments become effective. Nicki Van Vonno has served as Director of the County’s Growth Management Department since 1999, and has previously served the County in the Growth Management Department in various professional planning roles since 1983. Ms. Van Vonno obtained her planning certification from the American Institute of Certified Planners in 1991. Ms. Van Vonno explained that, when conflicting provisions arise, it is usually in the context of reviewing a proposed Comprehensive Plan amendment, or applying the Comprehensive Plan to a specific development proposal. In such cases, staff discusses the issue and consults with other County department staff who may have expertise in the issue area. Both Ms. Van Vonno and Mr. Dulin were credible witnesses, and their testimony is determined by the undersigned to be reliable. County staff are capable, in most instances, of determining, between conflicting provisions, which is the more stringent requirement or control. Despite staff’s acknowledged experience interpreting and applying the Comprehensive Plan, Petitioner emphasized Mr. Dulin’s and Ms. Van Vonno’s testimony that there may be development scenarios in which staff could not determine which provision was more stringent. In such cases, the County Commission itself may be called upon to make the final decision. The fact that the County Commission may be called upon to interpret its own legislative provisions does not necessitate a finding that the stricter rule lacks meaningful guidance for County staff. Nor does that fact support a finding that the County Commission will make said decisions arbitrarily, thus unpredictably, as pronounced by Petitioner’s expert.16/ Petitioner further contends that Section 1.1(5) and 1.4 are in conflict with one another, thus both creating an internal inconsistency and failing to provide meaningful guidance for application of the Comprehensive Plan. This contention is without merit. The Comprehensive Plan contains 17 chapters. Section 1.1(5) states that where conflict exists, the more restrictive provisions of Chapter 1 and 2 supersede provisions in other chapters. Section 4.1 provides that, in the event of a conflict, the more restrictive provisions of the plan, generally, prevails. Granted, the language is inartfully drafted. However, inartful drafting does not render the statements in conflict. Read together the language provides that, in the event of conflict, Chapters 1 and 2 prevail if provisions therein are more restrictive than provisions in other chapters. If the conflict is between chapters other than Chapters 1 or 2, the more restrictive provision of the remaining chapters applies. Next, Petitioner argues that the stricter rule is not supported by data and analysis which is required by section 163.3177(1)(f). Sections 1.1 and 1.4 are rules for interpreting and applying the Comprehensive Plan. The various experts disagreed about whether these sections are substantive, thus required to be supported by data and analysis, or procedural, thus not required to be supported by data and analysis. The issue of whether Sections 1.1 and 1.4 are substantive, rather than procedural, thus subject to data and analysis requirements, is at least the subject of fair debate. Balanced Development Section 163.3177(1) requires a local government comprehensive plan to “provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements.” Section 163.3177(6)(a)4. provides “the amount of land designated for future planned uses shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities[.]” Petitioner contends the Operative Amendments do not balance future economic development with environmental concerns or provide a balance of uses to foster economic development opportunities. Petitioner advances several bases for this allegation. First, Petitioner complains that the County conducted no analysis of the economic impact of the Operative Amendments. The County was not required to prepare an economic analysis of the Operative Amendments prior to their adoption. Next, Petitioner argues that the Operative Amendments exalt environmental concerns over other development considerations, in part because the Operative Amendments were drafted by Ms. Hurchalla, who has an admitted “environmentalist policy bent.” The Comprehensive Plan does demonstrate a commitment by the County to protecting the environment. However, a plan that contains stringent environmental protections is not necessarily out of balance as a whole. Petitioner cites Sections 1.1 and 1.5 in support of its argument, urging those sections make environmental issues paramount and everything else, including economic development, subservient. The plain language of Section 1.1 does not support Petitioner’s contention. Section 1.1 cites “protect and restore natural and manmade resources” as one of many purposes of the Comprehensive Plan, along with “achieve and maintain conservative prudent fiscal management” and “maintain the character, stability and quality of life for present and future County residents.” No one purpose is afforded more weight than the others.17/ Further, under the Operative Amendments, “quality of life” includes both environmental and business concerns, as well as fiscal prudence. Section 1.5 provides that a principle goal of the County is to promote balanced, orderly, sustainable economic growth by creating an economic environment “consistent with section 1.1” to enhance prosperity in the community. This section recognizes both the environment and quality of life as foundations of the County’s economy. According to Tom Pelham, one of the Respondent’s experts who has been professionally involved with the Martin County plan for a number of years, the County has demonstrated a strong commitment to implementing its plan through the USDs in the last 30 years. Petitioner’s expert also opined that the Operative Amendments fail to balance environmental and economic development issues by allowing, through Section 1.4, Chapters 1 and 2 to “trump” other chapters of the Comprehensive Plan. Chapter 2 provides the overall goals and objectives of the Comprehensive Plan, but is not limited to environmental goals. Chapter 2 includes measures relating to providing public facilities concurrent with needs of development, and measures for “prudent fiscal management,” among others. As previously found, section 1.4 provides a method for reconciling competing provisions in the event they are discovered. Petitioner also contends the Operative Amendments fail to designate sufficient land for commercial use, yet another basis for Petitioner’s contention that the plan is out of balance. Petitioner’s argument relies heavily on the assertion that the Operative Amendments limit commercial land use designations to permanent population growth. Having already rejected this interpretation of Policy 2.4C.3, the undersigned will not rely on that policy to support a finding that the Operative Amendments do not balance environmental and economic development issues. Petitioner is correct that the data available to the County in 2009 demonstrated a deficit of commercial land necessary to accommodate future economic needs. That finding remains in the Operative Amendments at Section 4.2A(12). The applicable Section of the Comprehensive Plan reads, as follows: The raw data appear to show a significant deficit of commercial land necessary to accommodate economic needs. Any attempt to remedy the deficits should be based on geographic area in order to reflect sustainability principles and provide population centers with necessary services in an orderly and timely fashion. Further analysis is planned to continue refining the inventory and consider whether population demands for retail/commercial services should be applied to the vacant land. The Operative Amendments do not designate any new land for commercial use. Prior to adopting the Operative Amendments, the County began updating its vacant commercial and industrial sites inventory. The County’s strategy is to identify existing sites with infrastructure available to serve commercial and industrial needs, and designate those sites for expedited permitting. The strategy includes identifying parcels with outdated zoning inconsistent with the Comprehensive Plan as candidates for rezoning to effectuate use for commercial or industrial purposes, combining adjacent parcels in common ownership, and identifying undeveloped sites with approved site plans for remarketing. This approach is consistent with the County’s urban containment strategy which it has sustained since the 1990 Plan. Subsequent to the 2009 EAR amendments, the County adopted a FLUM amendment, known as Ag-Tec, which added substantial amounts of commercial and industrial land to the County’s inventory. Dr. Fishkind opined that despite that addition, the County does not have adequate commercially- designated land to serve future needs. Dr. Fishkind’s analysis was criticized for excluding the Ag-Tec property because he relied upon the Property Appraiser’s use designations, rather than the County’s land use designations. The issue of whether the Comprehensive Plan, under the Operative Amendments, designates adequate lands for commercial use to serve future needs is at least fairly debatable. Petitioner also cited Objective 2.4C and Policy 2.4C.1 in support of its argument that the Operative Amendments do not balance economic concerns. Petitioner did not identify Objective 2.4C and Policy 2.4C.1 as compliance issues in its Amended Petition for Formal Administrative Hearing. Neither that Objective nor those policies were identified in the parties’ prehearing stipulation. Although testimony regarding those provisions was offered at the final hearing, that evidence has been disregarded and does not form the basis of any finding of fact herein.18/ Finally, Petitioner argues the Operative Amendments do not balance environmental and economic issues because they do not allow the operation of real estate markets to provide adequate choices for residents. While Petitioner proved its allegation that the RCA does not allow the operation of real estate markets to provide adequate choices for residential housing, that finding does not support a finding that the Operative Amendments do not balance economic and environmental concerns. In fact, the undersigned’s determination that the Operative Amendments interfere with the normal operation of the housing market is dependent on the merging of the Indiantown and Eastern USDs for purposes of calculating residential demand and capacity, and is in no way dependent on environmental factors. Thus, the matter of whether the Operative Amendments balance environmental and economic concerns is at least a matter of fair debate. Supermajority Vote Next, Petitioner challenges Section 1.11.D(6) of the Operative Amendments, which require “four votes for transmittal and for adoption” of plan amendments involving a number of critical issues specified therein. Petitioner argues that the supermajority vote requirement is a substantive requirement of the Comprehensive Plan unsupported by data and analysis. The County maintains the supermajority vote requirement is a simple procedural issue requiring neither data nor analysis in support. Petitioner concludes the requirement is substantive because it controls how the County Commission sets development policy by making it more difficult to amend the Comprehensive Plan in the future based on changed conditions. Petitioner’s expert, Dr. Depew, reasoned the vote requirement must be based on some data identifying a problem which necessitates the supermajority vote. Petitioner’s arguments are not persuasive. Regardless of the supermajority vote requirement, future amendments affecting identified critical issues (e.g., changes to the USD boundaries) must be supported by data and analysis, which may include changed conditions. The fact that the County Commission may have to adopt those changes by four votes rather than three, does not relieve the County Commission from supporting its legislative changes with appropriate data. The supermajority vote issue is largely a legal question, rather than one to be discerned based on expert planning opinion. For the reasons discussed in the Conclusions of Law, Petitioner did not prove beyond fair debate that the supermajority vote is not supported by data and analysis. Miscellaneous Issues In its Amended Petition, Petitioner raised the following additional allegations: Neither the 15-year planning timeframe nor the density allocations in Objective 4.1F were supported by data and analysis; and, the RCA is inconsistent with section 163.3177(6)(f)(minimum requirements for the housing element). Petitioner did not present any evidence on these issues. Thus, Petitioner did not prove these allegations beyond fair debate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order determining that the Plan Amendment is not “in compliance.” DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015.
The Issue Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Purchase of the Property. In the Spring and Summer of 1985, Thomas W. Anthony began an inquiry relative to the purchase and development of 21.5 acres (original tract) located at the intersection of Capital Circle West and I-10. (R-2, pp. 11-15.) On December 11, 1985, a Deposit Receipt and Contract for Sale and Purchase was executed between Rehold, Inc. and C. Gary Skartvedt, Thomas W. Anthony, and Mary J. Price, d/b/a Denver West Joint Venture (Denver, Colorado) for the purchase of the original tract. (Deposit Receipt and Contract for Sale and Purchase.) On March 14, 1986, the Interstate-Tallahassee West Partnership Agreement was executed and Interstate purchased the original tract from Rehold, Inc. (Chronological Listing of Events, p. 1.) At the time of the closing on the initial purchase of the original tract, the property was zoned C-2, with the exception of a small portion in the northwest corner of the tract which was zoned A-2. (R-2, pp. 34-35, Preliminary Plat approved on January 18, 1990.) Development Chronology. During 1987 and 1988 the original tract was held to realize growth potential in terms of Interstate's economic investment. (Chronological Listing of Events, p. 2.) In 1989, Interstate began negotiations for the sale of a portion of the original tract to Kent C. Deeb (Deeb). (Chronological Listing of Events, p. 2.) On June 26, 1989, Broward Davis and Associates, Inc. prepared a drawing of easement location and depiction of a 25 year flood line relative to the portion of the original tract which was the subject of the negotiations between Interstate and Deeb. (Chronological Listing of Events, p. 2, R-2 p. 20.) On September 12, 1989, Tilden Lobnitz and Cooper, Inc., (Consulting Engineers) recommended a reconfiguration of the original tract relative to the location of high voltage power lines. (Chronological Listing of Events, p. 2.) On October 11,1989, final descriptions of the lakes on the original tract were prepared for Interstate by Broward Davis and Associates. (Chronological Listing of Events p. 2.) On November 13, 1989, a sketch depicting a revised legal description of a proposal to subdivide the subject property was prepared for Interstate by Broward Davis and Associates, Inc. (Chronological Listing of Events, p. 2.) On December 7, 1989, an Environmental Assessment of the site was prepared for Interstate by Jim Stidham and Associates. (Chronological Listing of Events, p. 2.) On December 14, 1989, Deeb executed a Purchase and Sale Agreement which contemplated the conditional purchase of 6.98 acres of the original tract from Interstate. Interstate signed the Purchase and Sale Agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate contends the execution of this Purchase and Sale Agreement resulted in it incurring substantial contractual obligations and argues that these obligations (along with other items and events) are elements in support of "common law vesting" of its development rights. This agreement is the subject of expanded discussion later in this Final Order. The services that Interstate obtained during 1989 (as described in paragraphs 6-11 above) were related to the eventual consummation of the Purchase and Sale Agreement with Deeb. (R-2, pp. 20-21 and 27, Chronological listing of Events, p. 2.) On January 18, 1990, the Tallahassee-Leon County Planning Commission approved Interstate's Preliminary Plat of the subject property. (Chronological Listing of Events, p. 3.) On April 4, 1990, the Tallahassee City Commission approved Interstate's previously filed application to rezone a portion of the subject property from A-2 to C-2. (Chronological Listing of Events, p. 3.) Interstate entered into a written Utility Agreement with the City on or about July 10,1990. (Letter of agreement dated June 25, 1990 from Henry L. Holshouser, Director of Growth Management, to Interstate Tallahassee West.) The Utility Agreement is the subject of expanded discussion later in this Final Order. On August 20, 1990 a Vested Rights Application covering 6.98 acres of the original tract, which is the subject of the Purchase and Sale Agreement between Interstate and Deeb, was approved. (Letter dated August 21,1990 to Kent Deeb from Mark L. Gumula, Director of Planning, Tallahassee-Leon Planning Commission, containing CERTIFICATION OF VESTED STATUS.) The Vested Rights Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.) Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.) As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.) As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.) As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.) As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.) Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.) The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.) As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.) At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property. Costs Associated with Interstate's Property. Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City. Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City. Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City. Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.) These costs were not incurred based upon any representation of the City. Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the 6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City. The Purchase and Sale Agreement with Deeb. Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement. Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.) Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.) The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.) The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan. The Utility Agreement. The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations. The Preliminary Plat Approval. The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations. The A-2 Rezoning Approval. Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations. Interstate's Application for Vested Rights. On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.) The Following information concerning the development of the subject property is contained on the Application: "Kent C. Deeb" is listed as the "owner/agent". Question 3 lists the name of the project as "Interstates Tallahassee West." The project is described as a "Four Lot Subdivision." The project location is described as "lots 1 and 2 Block A Commonwealth Center." The total project costs are estimated at $2.5 Million." Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site Preparation: "Zoning, Platting, and Plans"; D. Construction: "Original Holding Ponds". Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million. The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat." On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate. By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied. During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
The Issue The issues to be determined in this case are whether the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-10, and revised in part by the remedial amendments in Ordinance Number 2010-O-01 (“Plan Amendments”), are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review comprehensive plan amendments and to determine whether amendments are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality in Volusia County and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Hammock Creek is a Delaware limited liability company registered with the State of Florida. It owns the property that is the subject of the Plan Amendments. Through its representatives, Hammock Creek submitted comments to the Edgewater City Council at the transmittal and adoption hearings for the Plan Amendments. Petitioner Richard Burgess resides in the City, owns real property in the City, and operates a business in the City. At the public hearings on the original amendment package adopted by Ordinance No. 2008-O-10, Petitioner made comments on behalf of Edgewater Citizens Alliance for Responsible Development, Inc. (ECARD), as its vice-president. ECARD was an intervenor in this proceeding, but voluntarily dismissed its petition before the final hearing. Petitioner submitted written comments on his own behalf at the adoption hearing for the remedial amendments adopted by Ordinance No. 2010-O-01. The Plan Amendments The Plan Amendments create a new land use category, the Restoration Sustainable Community Development District (“Restoration SCD”), which is described in a new Restoration SCD Sub-Element of the FLUE: The Restoration SCD is the result of a conscious planning approach based on the most current New Urbanist research and advanced practices. The compact development pattern is designed to and shall provide for a diverse community with distinct place types and multiple experiences that are appealing to residents, employees, and visitors. It shall provide for walkability, a broad range of inclusive household demographics, the ability to connect the community directly to a natural experience, transit ready design, and a high level of environmental stewardship and planning. * * * In order to facilitate this vision, the City shall recognize that density is important to the restoration SCD outcome, but no more important than the mixing of uses, the development of a diverse population through the provision of housing choice and employment centers, the connection of streets and the design of structures and spaces on a human scale. The Restoration SCD land use category applies to 5,187 acres of land on the west side of Interstate 95 that are owned by Hammock Creek. The Restoration SCD site is not currently being used, but in the past was used for silviculture. The Restoration SCD site was annexed into the City in 2005, but is being assigned a future land use designation for the first time. The Volusia County land use categories for the property are Environmental Systems Corridor, which allows a maximum residential density of one unit per 25 acres, and Forestry Resource, which allows a maximum residential density of one unit per 20 acres, or up to one unit per five acres with clustering. The Restoration SCD Sub-Element includes the Restoration SCD Conservation/Development Areas Map, which divides the site into three areas: Conservation, SCD Conservation/Restoration, and SCD Community Development. The SCD Community Development area is also referred to as the “Build Envelope” because it is the only area where development can occur. The Build Envelope is approximately 25 percent of the total land area. At least 50 percent of the Restoration SCD site is required to be permanently protected open space. The SCD District is integrally related to a Development of Regional Impact (DRI) proposed for the lands that are the subject of the Plan Amendments. The Resolution SCD includes several of the development controls listed in Florida Administrative Code Rule 9J- 5.006(5)(j) which discourage urban sprawl, including: open space requirements; clustering; the establishment of minimum development density and intensity; phasing of urban land use types, densities, and intensities; traditional neighborhood development form; buffering; planned unit development requirements; restriction of the expansion of the urban area; and jobs-to-housing balance requirements. Edgewater is a relatively old Florida City that was developed with strip commercial along the highway and other development forms that were typical before the enactment of Chapter 163 and the requirement for comprehensive planning. The Restoration SCD introduces modern development principles and forms. Within each element of the City’s Comprehensive Plan, there are data and analysis summaries. There is also a separate section entitled “Population Projections.” The Plan Amendments revise or add information to some of these data and analysis summaries. The Plan Amendments also include some “housekeeping” changes that delete obsolete portions of the Comprehensive Plan and extend several planning horizons in the plan from 2010 to 2020. Mixed Uses Petitioner contends that the Restoration SCD lacks adequate policies to implement the types of land uses allowed, the percentage distribution among the mixed uses, or other objective measurement, and the density or intensity of each use as required by Rule 9J-5.006(4)(c). Restoration SCD is the future land use designation for the entire site. Policy 3.1.1 describes seven subcategories of uses within Restoration SCD: Residential, Mixed-Use Town Center, Work Place, Transit-Ready Corridor, Utility Infrastructure Site, Schools, and Open Space. Various policies of the Restoration SCD Sub-Element establish minimum and maximum percentages for the subcategories of uses. Table I-4 in the Plan Amendments shows the various land uses, their densities and intensities, and their acreages. The Restoration SCD land use designation has an overall residential density cap of 8,500 residential units and a non-residential intensity cap of 3,300,000 square feet. Policy 7.1.1 ensures a continuing balance of residential and non-residential development by tying the number of residential building permits that can be issued to the square footage of non-residential development that has been constructed. For example, residential units cannot exceed 1,500 until 180,000 square feet of non-residential uses have been constructed. Format Petitioner contends that the Plan Amendments are not consistent with the format requirements of Rule 9J-5.005(1) because the sources, dates, and other information associated with tables, figures, and other materials included in the Plan Amendments are not identified. Exhibit A to the new Restoration SCD Sub-Element does not show a source, preparation date or name of the preparer. FLUE Table I-3 shows a source and name of the preparer, but not a preparation date. FLUE Table I-4 shows a source, a preparation date, and name of the preparer. Within the Population Projections section of the Comprehensive Plan, Table P-1 shows a source, but not a preparation date or name of the preparer. Table P-2, Figures P-1 and P-2, and Tables P-3 through P-5 do not show sources, preparation dates, or names of the preparers. Tables P-6 and P-7 show sources and names of the preparers, but no preparation dates. Table P-9 does not show a source, preparation date, or name of the preparer. Within the Housing Element, Tables III-13 through III- 15 and Tables III-17 through III-20 show sources and names of the preparers, but no preparation dates. The tables and figures that Petitioner objects to are included in the Comprehensive Plan as supporting data and analysis. They are not parts of goals, objectives, or policies. Rule 9J-5.005(2)(e) requires that maps include major natural and man-made geographic features and city and county boundaries. The Resolution SCD Conservation/Development Areas Map does not show geographic features or government boundaries. There are other maps in the FLUE that show natural and man-made geographic features and city and county boundaries. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is part of the DRI Development Order. Petitioner objects to the omission of Map “H” from the Comprehensive Plan. The Director of the Department’s Division of Community Planning stated that it is not the practice of the Department to treat a format error or omission as requiring a determination that a plan amendment is not in compliance. Adoption by Reference Petitioner contends that the Plan Amendments adopt regulations and other materials by reference, but not in accordance with Rule 9J-5.005(2)(g), which requires that the reference “identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted.” Petitioner asserts that the following provisions include inadequate adoptions by reference: Policy 1.1.1, Policy 3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11, Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1, Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies 4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and federal laws or regulatory programs, but they do not purport to adopt these laws and programs by reference. The purpose of these provisions is not for the City to apply or have any role in the regulatory process or decision-making associated with the referenced laws and programs. The wording of these provisions is consistent with the City’s assertion that its intent is merely to provide notice of related permitting programs with which the developer will have to comply. Goal 5 refers to New Urbanism and other land use design principles as described in the literature of the Congress of New Urbanism, the Urban Land Institute and similar organizations, but the goal does not purport to adopt this literature by reference. The goal states that design policies will be adopted by the City in the future. No specific design principles are adopted, by reference or otherwise, in Goal 5. Policy 6.1.1 refers to affordable housing and defines the term as a percentage of Volusia County’s Average Median Income. The policy does not purport to adopt any materials by reference. Policies 8.1.4 and 11.1.1 refer to design principles which are to be adopted in the future. The policy does not purport to adopt this literature by reference. No specific design principles are adopted, by reference or otherwise, in Policies 8.1.4 or 11.1.1. Policy 9.1.1 addresses school concurrency and refers to a Capacity Enhancement Agreement (“CEA”) entered into by the City, the developer, and the Volusia County School Board to ensure that schools are timely planned and constructed to serve the student population. The policy does not purport to adopt the CEA by reference. Petitioner did not show that the CEA is not self-executing. Policy 10.1.1 refers to “green” development practices that meet the certification programs of the United States Green Building Coalition or the Florida Green Building Code, which will be incorporated into the DRI Development Order. The policy does not purport to adopt these certification programs by reference. No specific green design practices are adopted, by reference or otherwise, in Policy 10.1.1. Policy 11.1.4 refers to vehicle trips as calculated by the Institute of Transportation Engineers Trip Generation Manual. This is the standard manual used by all traffic engineers. The policy does not purport to adopt the manual by reference. Planning Timeframes Petitioner contends that the Plan Amendments cause the Comprehensive Plan to be internally inconsistent because there are different planning horizons in the Plan. The Plan Amendments extend several planning horizons to 2020, but the planning horizon in the Recreation and Open Space Element remains 2010, the water supply work plan has a planning horizon of 2018, and the Public School Facilities Element has a planning horizon of 2025. Petitioner did not identify an adverse effect created by the different planning horizons. The City is currently preparing its Evaluation and Appraisal Report (EAR)-based amendments. The EAR process is statutorily mandated, periodic review and update of the entire Comprehensive Plan. It is the logical process for reviewing and revising planning horizons in the plan. Conservation Element and Housing Element Data Petitioner contends that the support documentation that is included as part of the Conservation Element is not the best available data. However, Petitioner did not produce better data, except for the Florida Fish and Wildlife Conservation Commission’s more recent listed species rules, or show how better data do not support the Plan Amendments. Similarly, Petitioner contends that some of the support documentation that is included as part of the Housing Element is not the best available data. Petitioner did not produce better data or show how better data do not support the Plan Amendments. Need Petitioner contends that the best available data do not show a need for the residential and nonresidential land uses allowed by the Plan Amendments. The Population Projections section in the Comprehensive shows a projected City population of 34,481 by 2020. The Department determined that the 2020 population forecast was reasonable. It is not the practice of the Department to require local governments to update their population projections every time an amendment is adopted. The 2020 population projection is derived from forecasts of the University of Florida’s Bureau of Business and Economic Research BEBR. BEBR forecasts county populations, from which city population projections must be extrapolated. BEBR frequently under-forecasts population growth for cities. BEBR forecasts do not account for localized factors that can change the attractiveness of a particular area to prospective new residents and, therefore, stimulate population growth. Applying an “allocation factor,” the Department determined that the number of residential units allowed by the Plan Amendments was reasonably in line with the 2020 forecast. An allocation factor is a multiplier applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. In addition, population projections are not the sole consideration in determining the need for a plan amendment. In the case of the Restoration SCD, higher densities and intensities are necessary as a part of the intended development form. Higher densities and intensities are also necessary to achieve the objectives of Section 163.3177, Florida Statutes, including the encouragement of transit-oriented and energy-efficient communities. A need analysis for non-residential land uses in the Resolution SCD was not conducted by the City because the non- residential uses are intended to serve and be integrated with the residential uses, and are required to be developed in pace with the residential development. The Department found this approach acceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O- 10 and revised by Ordinance Number 2010-O-01, are “in compliance.” DONE AND ENTERED this 27th day of July, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2010.
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP as “regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available, at the levels of service adopted in this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2010.
