The Issue At issue in this proceeding is whether a certain development order (permit) issued by Monroe County to George and Judy Sands, as owners, and PG Construction, Inc., as contractor, for the construction of a single family dwelling unit is consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, George and Judy Sands (Sands), are the owners of Lot 15, Tropical Coral Reef Estates, Plantation Key, Monroe County, Florida; a property located within that part of Monroe County designated as an area of critical state concern, and upon which they have received a development order (permit) from Monroe County to construct a single family dwelling unit. Respondent, PG Construction, Inc., is the contractor that applied for the permit on behalf of the Sands. Respondent, Monroe County (Monroe County), is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated there-under. Sections 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permit, and contends that construction of the dwelling unit is inconsistent with the Monroe County comprehensive plan and land development regulations since it would exceed allowable density limitations. Background The subject property is approximately .45 acres, and was purchased by the Sands in January 1990. At the time of purchase, the property supported a concrete block residence, two bedrooms and one bath, of approximately 900 square feet and a wood-frame residence, two bedrooms and one bath, of approximately 625 square feet. Both buildings were constructed in 1948 and were, pertinent to this case, used by the Sands' predecessor in title as a principal residence prior to and as of the effective date of the Monroe County land development regulations (September 15, 1986). Following their acquisition of the property, the Sands undertook to upgrade both structures with the intention of offering use of the residences to employees of their business, which was located across the street from the property. 2/ Ultimately, however, the Sands decided to replace, rather than remodel, the wood-frame residence, and employed David de Haas-Grosseck (de Haas), a consultant and designer of residential properties, who was of the opinion that such replacement was permissible under the provisions of Section 9.5-268, Monroe County land development regulations (MCLDR), discussed infra, to attend the necessary details. 3/ On February 5, 1991, de Haas, on behalf of the Sands, filed an application with Monroe County for a building permit to construct a modular single family residence upon the property. Thereafter, the County advised de Haas that since the wood-frame structure was to be removed a demolition permit would also be required. Accordingly, on February 11, 1991, de Haas applied for a demolition permit to remove such structure. The demolition permit (permit number 9130002904) was issued by the County on February 11, 1991, and rendered to the Department on February 13, 1991. The building permit (permit number 9130002861) was issued by the County on February 25, 1991, and rendered to the Department on February 27, 1991. Under existing law, such permits were not effective until expiration of the time within which the Department was authorized to appeal their issuance, to-wit: 45 days after they were rendered to the Department. The Sands, having been expressly so advised by de Haas, were acutely aware of the limitations on their building permit. Consequently, the Sands requested a waiver of the Department's appeal period. By letter of March 21, 1991, the Department denied such request and stated: Dear Mr. Sands: Monroe County issued you permit number 913-2861 on February 25, 1991. The DCA received the permit on February 27, 1991. Therefore, the Department's 45-day appeal period expires on April 13, 1991. Subsequent to the issuance of the permit by the County, you requested a waiver of the DCA's appeal period. At this time, the Department declines to issue you the waiver. Changes or additional information may be needed to meet County Code requirements. Our concerns include that the proposed development exceeds the allowable density in a SS zoning district. DCA staff will continue to review your plans and the permit, which may warrant action by the Department . . . . Notwithstanding the Sands' express knowledge that their building permit was not effective, as well as express advice from the Department that it had concerns regarding the propriety of such development, the Sands, following the expiration of the Department's appeal period on their demolition permit, demolished the wood-frame structure on or about April 4, 1991. Thereafter, by petition filed with the Florida Land and Water Adjudicatory Commission on April 12, 1991, the Department timely challenged the propriety of Monroe County's decision to issue the building permit. 4/ The Sands, notwithstanding express knowledge that their building permit was not effective pending the Department's appeal, proceeded to construct the modular unit on the property. Such unit is approximately 650 square feet in size, excluding the two enclosed screen porches which measure 10' X 20' each, and complies with current building code requirements. The Sands' decision to construct such unit pending appeal was voluntary, and they proceeded with such construction at their own risk considering the nature of this proceeding. Consistency of the building permit with the Monroe County comprehensive plan and land development regulations The Sands property is located within what the Monroe County land development regulations (MCLDR) define as a sparsely settled residential land use district. The purpose of such district is stated in Section 9.5-209, MCLDR, to be as follows: . . . to establish areas of low density residential development where the predominate character is native or open space lands. Consistent with the purpose of such land use district, the Monroe County land development regulations permit, as of right, only the following uses: Detached residential dwellings; Beekeeping; Home occupations -- Special use permit requiring a public hearing; Accessory uses. Section 9.5-238(a), MCLDR. Moreover, consistent with the purpose of the district, the density or intensity of development is limited by Section 9.5-261, MCLDR. Pertinent to this case, 9.5-261, MCLDR, addresses the issue of land use intensity or density, and provides: No structure or land in Monroe County shall hereafter be developed, used or occupied at an intensity or density greater than the standards set out in this division. . . . And, Section 9.5-262, MCLDR, establishes the maximum residential density in a sparsely settled residential land use district at .5 dwelling units per acre. Accordingly, a minimum of two acres is required under the Monroe County land development regulations to permit, as of right, one detached residential dwelling. Notwithstanding the provisions of Section 9.5-262, MCLDR, the Monroe County land development regulations provide an exception to the density limitations otherwise imposed by such section for certain dwelling units existent on the effective date of the regulations. Pertinent to this case, Section 9.5-268, MCLDR, provides: Notwithstanding the provisions of section 9.5-262 . . . the owners of land upon which a dwelling unit . . . used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter. Here, the Department and Monroe County disagree as to the proper interpretation of the foregoing provision. The Department interprets such provision to apply only to the owner of such residence on the effective date of the plan. Under such interpretation, the density benefits offered by Section 9.5-268, MCLDR, would be lost where, as here, such owner sold the property. In contrast, Monroe County interprets such provision to essentially establish an allowable density on the effective date of the plan, and to accord subsequent owners the benefit of such increased density allocation. 5/ Such interpretation, while not the only possible interpretation, is not inconsistent with the comprehensive plan or clearly erroneous, and therefore permissible. 6/ Accordingly, the subject permit is consistent with the Monroe County comprehensive plan and land development regulations. 7/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9130002861, and dismissing the appeal filed by the Department of Community Affairs. RECOMMENDED in Tallahassee, Leon County, Florida, this 12th day of June 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June 1992.
The Issue The issues in this case are: Whether Respondent, St. Joseph Garden Courts, Inc. ("Garden Courts"), discriminated against Petitioner, Lillian Craig ("Craig"), on the basis of her race (Caucasian) in violation of the Florida Fair Housing Act; and Whether Gardens Courts retaliated against Craig when she filed a discrimination claim.
Findings Of Fact Craig is an elderly Caucasian woman, who at all times material hereto resided at Garden Courts. Garden Courts is a federally-funded, multi-unit housing project that provides housing to elderly and lower income individuals under Section 202 of the Housing Act of 1959, as amended. On February 27, 2009, Craig entered into a "202 Project Rental Assistance Contract" (the "Lease") with Garden Courts. Craig agreed to lease Unit 311 for the sum of $465.00 per month, plus $60.00 per month for utility services. Craig agreed to abide by all terms and conditions of the Lease, including the Rules and Regulations attached thereto as an addendum. The Rules and Regulations attachment contains the following provision at paragraph 30: Authorized personnel will enter the apartment periodically for routine inspections, maintenance replacement/repairs, and pest control. Routine inspections, as required by HUD, are conducted to determine the condition of the dwelling unit, that the unit is decent, safe and sanitary, and in good physical condition. Inspections may reveal possible lease violations. Photographs will be taken if determined necessary. Any lease violations found during these inspections may result in termination of tenancy. On October 10, 2010, Garden Courts conducted a routine housekeeping and maintenance inspection of Unit 311. Mott, as property manager, headed up the inspection. Mott used a form checklist consistent with Department of Housing and Urban Development (HUD) guidelines for the inspection. Inspections of several other units were performed on the same day. The inspections were conducted by Mott with the assistance of Rudy (last name not provided), the maintenance director. Generally, Mott would inspect the kitchen and bathroom, while Rudy inspected the bedroom(s). Inspections were performed to assure cleanliness, orderliness, and compliance with all safety requirements. Upon inspection of Unit 311, Mott determined that there was one minor deficiency, a dirty stovetop, and one major problem, a fire hazard in the bedroom. The apartment was deemed free of roaches and vermin, free of trash and garbage, and in a "fair" state of cleanliness. Photographs were taken on the unit to document the major deficiency. The situation causing a major fire safety problem in the unit was that Craig had boxes and furniture stacked up in the bedroom which blocked the outside window. Inasmuch as there need to be two methods of ingress/egress for each room, the boxes illegally blocked one of the escape routes. The boxes also were stacked so high that the inspectors could not reach the smoke detector to determine whether it was functional. Further, the boxes blocked the electrical outlets so that they could not be tested. The fact that the boxes contained lots of paper was a concern to Garden Courts due to the possibility of fire. Due to the deficiencies, a follow-up inspection had to be scheduled. Garden Courts usually asked the tenant whether he or she wanted the re-inspection to occur within 15 days or 30 days. In this case, Craig asked for some time to rectify the problem and requested re-inspection a month later. Garden Courts honored her request and scheduled a re-inspection for the unit on September 10, 2010, one month after the initial inspection. Craig was advised by Mott that the boxes and furniture in the bedroom were the cause of Craig's apartment not passing the inspection. There is no credible evidence that Mott told Craig to move the boxes or face eviction. The best evidence is that Craig understood the need to move the boxes and volunteered to do so if she was afforded ample time. When Mott came back to re-inspect the unit a month later, the boxes had been moved. Craig claims she was treated differently from other tenants during her inspection. On the same date that Unit 311 was initially inspected, Mott and Rudy also inspected Units 210, 217, 306, 325, 119, and 116. The tenants of each of those units were Hispanic. Craig asserts that she was treated differently, because she was not Hispanic. That is, Unit 116 also had an issue relating to stacks of boxes, but Mott did not take a picture of that apartment. According to Mott, that was because the other unit was not, in her opinion, as severe a problem as Craig's unit. Each of the Hispanic tenants was given two weeks to a month to correct his or her cited deficiencies, depending on the nature and severity of the issues. Craig was allowed one full month to correct her deficiencies. The tenant of Unit 116 was ultimately given additional time to move the boxes in her apartment due to her physical condition. That tenant asked for and received additional time; Craig did not ask for additional time, because she was able to move her boxes before the scheduled re-inspection. Shortly after the re-inspection, Craig contacted the Jacksonville HUD office to complain about her treatment by Mott. Craig actually filed a Housing Discrimination Complaint with HUD, alleging discrimination based upon her race, Caucasian. HUD notified Mott about the complaint and asked Mott to speak to Craig about the allegations. Mott then tried to contact Craig to discuss the complaint. However, the phone number Mott had for Craig did not have a voice mailbox set up, so Mott was not able to leave Craig a message. On September 15, 2010, Craig returned to Garden Courts after doing some grocery shopping. As she walked through the lobby, Mott asked her to stop and talk for a moment concerning the HUD complaint. Craig indicated that she could not talk at that time because she had to get her groceries put away. Mott told Craig that attempts to leave Craig a message on her cell phone were thwarted due to the fact that the message box had not yet been set up. Craig disputed that statement, saying that she was receiving messages from other people. Craig says that Mott grabbed her arm and yelled at her. Mott remembers only speaking to Craig in a normal tone of voice and requesting a meeting. There is no persuasive evidence as to how the conversation actually occurred. Mott awaited a return call or visit from Craig for a few hours, then drafted a letter to Craig when there was no further contact. The letter again asked Craig to contact Mott to discuss the HUD complaint. The letter included the cell phone number that Mott had on file for Craig and asked Craig to contact Mott by the end of the following day. Craig, however, was apparently unwilling to talk with Mott on her own, so she went to speak with an attorney, rather than contacting Mott. There is no indication that Mott and Craig ever had a meaningful discussion between themselves about the fire hazard issue. At some point in time, a meeting was held that both Mott and Craig, along with legal counsel, attended. However, the results of that meeting are not in evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Lillian Craig in its entirety. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 13th day of July, 2011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Virgil and Catherine Dunigan own property on a corner lot located at 904 Richards Avenue in Clearwater. The lot size is approximately 11,609 square feet and the house, with approximately 2,757 square feet, has five bedrooms, three baths and an enclosed garage. The Dunigans utilize the residence as a licensed adult congregate living facility (ACLF) and currently provide housing and care for five elderly residents. The Dunigans' property is zoned as RS-8, which is a single-family residential zoning district under the City of Clearwater's Land Development Code. Within this RS-8 zoning district, the permitted uses are detached single- family dwellings, family care and accessory uses. Section 135.026, Land Development Code. The present use of the property as an ACLF for five residents falls within the definition of "family care" and is a permitted use. The Dunigans now desire to increase the number of elderly residents from five to nine, which would change the nature of the use of the residence from "family care" to "Level I group care." The Land Development Code provides that a Level I group care use may be permitted as a conditional use within the RS-8 zoning district. Section 135.027. The Dunigans have been licensed by the State to operate an ACLF for nine residents. The Land Development Code sets forth both general standards and supplementary standards by category of use which must be met before a conditional use is authorized. Section 136.025. Among the specific standards which must be met for group care facilities are those pertaining to floor space and lot size. Sections 136.025(c)(14) a and 136.020(e)(2) a and b. As pertinent to this proceeding, the floor space required for a group care facility is 1,600 square feet plus 200 square feet per additional resident beyond 6 persons. The minimum lot area for facilities which house 6 persons is 6,000 square feet, plus 1,500 square feet per additional resident. The off-street parking spaces required for detached single family dwellings are two spaces per dwelling unit. Section 136.022(f)(4) a 1, Land Development Code. Group care facilities are required to provide two parking spaces for the first six residents, plus one space for each additional six residents or fraction thereof, plus one space per two nonresident employees or supervisors. Section 136.022(f)(4) a 5, Land Development Code. The Dunigans presently have two parking spaces on the property. At the hearing before the Planning and Zoning Board and at the appeal hearing before the undersigned Hearing Officer, several neighbors residing in the immediate vicinity of the Dunigans' ACLF testified in opposition to the application. While they generally had no complaints regarding the operation of the existing facility with a total of five residents, they were concerned that any increase in the number of residents would present traffic and parking problems, would decrease property values, would result in an over-crowded condition for the facility's residents and would convert the nature of the facility to more of a business venture than a residential facility.
The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2004.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: All statements contained within the Petition have been found to be true and correct. The area encompassed by the proposed District is 30,637+- acres located within unincorporated areas of Glades and Hendry Counties, Florida (Exhibit 7). The external boundaries of the District are coterminous with the external boundaries of General Development Corporation's Port LaBelle development. Within these boundaries but excluded from the District are several out parcels that were never part of the original Villages of Port LaBelle development, as well as four Port LaBelle plat units where there are currently numerous property owners. The property within the District to be excluded from the community development district is described in Exhibit 10. General Development Corporation, a Delaware corporation authorized to do business in the State of Florida, is the major landowner within the proposed District (Exhibits 8 and 9A). Four other property owners owning seven parcels within the proposed District have joined in the Petition (Exhibit 9B). Installment lot contract purchasers within the areas to be included within the District who had not received a Property Offering Statement from GDC indicating the possibility of the formation of a special taxing district were separately notified by mail of the time and place of hearing and provided with information on the functions of the proposed District. Out of a total of 10,270 letters sent, only six lot purchasers made further inquiries, and those inquiries were not related to the formation of the District, but were related to property values. (Testimony of Lawrence W. Mobley. Affidavit of Mark Billson, Exhibits 19A and B.) The area of land within the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functionally interrelated community. This finding is based in part on the fact that the area to be included within the proposed District contains approximately 30,637+- acres. Property within the proposed District includes "vested" areas and areas which have been and continue to be subject to Chapter 380, Florida Statutes, review and is planned to be developed as a functional, interrelated community with a variety of land uses, including commercial, institutional, residential, and recreational. The District is ultimately projected to include 49,646 dwelling units. The area encompassed by the proposed District was subject to a Master Application for Development Approval. The Master Land Use Plan depicting uses is shown in Exhibit 13A. Master Development Orders were issued by Glades and Hendry Counties in 1974, subject to further incremental review as detailed technical data became available (Exhibits 13A, B, C and D). In 1980, Development Orders were issued by Glades and Hendry Counties for Increment II (Exhibits 14A and B). Portions of the remaining property will be subject to further incremental review (Exhibit 15A). The area subject to further review contains approximately 13,690+- acres and includes residential villages and a town center as well as a variety of other land uses. The projected population for this area is 48,700 (Exhibit 15B). The proposed designation of the future general distribution, location and extent of public and private uses within the District is shown in Exhibit 15A. All mandatory elements of the local government comprehensive plans for both Glades and Hendry Counties have been adopted in compliance with the Local Government Comprehensive Planning Act of 1975 (Exhibits 17A, 17A1, 17B and 17B1) The proposed creation of the District is not inconsistent with applicable elements of the State Comprehensive Plan. The proposed District is not inconsistent with the applicable elements of the Glades and Hendry Counties Comprehensive Plans, as evidenced by the fact that the Planning Director for each county has indicated that the establishment of the District is not incompatible with applicable elements of the local government comprehensive plans (Petitioner's Exhibits 18A and 18B). The five persons proposed to be the initial members of the board of supervisors who shall serve in that office until replaced by elected members as provided by Section 190.006, Florida Statutes, are: C. C. Crump Senior Vice President General Development Corporation 1111 South Bayshore Drive Miami, --Florida -33131 (305) 350-1525 Arthur L. Harper, Jr. Vice President General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1533 James E. Clark Assistant Vice President 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1531 Wayne L. Allen Vice President and General Counsel General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 (305) 350-1261 Lawrence W. Mobley Assistant Vice President General Development Corporation Highway 80 East Birchwood Boulevard LaBelle, Florida 33595 (813) 675-1712 The proposed name of the District is the Port LaBelle Community Development District. A map of the proposed District showing current major trunk water mains and sewer interceptors and outfalls have been provided in Exhibits 11A and B. No water distribution and collection systems are proposed to be constructed, operated or maintained by the District. Facilities are to be constructed by the District over a period of 40 years. The timetable for construction indicates that all facilities should be completed by the year 2020 (Petitioner's Exhibit 23). The total costs associated with the capital facilities to be constructed are estimated in good faith to be $5,433,000.00 (Exhibit 22). Glades County Resolution 80-9 (Exhibit 14A) and Hendry County Resolution 80-37 (Exhibit 14B) requested that the applicant, GDC, work together with each county to investigate the feasibility of establishing certain special taxing districts. As a result of these conditions, GDC filed a petition for establishing a community development district. The applicable local governments, the Board of County Commissioners of Glades and Hendry Counties have evidenced their support of Petitioner's request to have a District established by rule by passing Resolution 81-62, dated September 8, 1981, by Hendry County, and Resolution 81-17, dated September 14, 1981, by Glades County (Exhibits 20A and B, respectively). The District is the best available alternative for providing and delivering community services and facilities to the area to be serviced by the District. This finding is supported by the Resolutions of the Board of County Commissioners of Glades County and Hendry County acknowledging that neither county is presently in a position to provide any of the essential services required by a community of this size. The Community Development District will be able to provide reliable long-term maintenance of the services and facilities not otherwise provided by the counties or other appropriate units of local government (Exhibits 20A and B). The Barron Water Control District, a district established pursuant to Chapter 298, Florida Statutes, within the area of the proposed District, has also evidenced its support of Petitioner's request to establish a Community Development District by rule (Petitioner's Exhibit 21). The Community Development District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the District is amenable to separate district government. This finding is supported by the foregoing findings of fact which establish that the nature, location, and size of the proposed Port LaBelle Community Development District would make it amenable to separate district government. Members of the public testifying at hearing had no complaints that related to the specifics of the petition filed in this cause. Instead, their concerns related to the wisdom of the Legislature in enacting Chapter 190, Florida Statutes, in the first instance, and the witnesses' desires that the Act be repealed as soon as possible. These concerns are, of course, outside the scope of issues properly involved in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law hereby submitted, the Hearing Officer recommends that the Florida Land and Water Adjudicatory Commission grant the Petition of General Development Corporation, and adopt a rule which will establish the Port LaBelle Community Development District. DONE AND ENTERED this 9th day of July, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1982. COPIES FURNISHED: Nancy H. Roen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Ms. Miriam Schreiner Post Office Box 1288 LaBelle, Florida Mayor Joan Jefferson City of Stuart Stuart, Florida 33495 Robert Miller, Chairman Treasure Coast Regional Planning Council Post Office Box 2395 Stuart, Florida 33495 Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301 Mr. John T. Herndon Director of the Office of Planning and Budget Executive Office of the Governor The Capitol Tallahassee, Florida 32301
The Issue The issues to be determined in this case are whether the land development regulations (LDRs) adopted by the City of Key West in Ordinance No. 12-16 are consistent with the City of Key West Comprehensive Plan and the Principles for Guiding Development for the City of Key West Area of Critical State Concern, and whether Final Order No. DEO-12-109 of the Department of Economic Opportunity ("DEO"), which approved the LDRs, is valid.
Findings Of Fact The Parties Petitioner is a not-for-profit corporation comprised of owners of condominium units located at the Sunset Marina Residences property within the City of Key West. The City of Key West is a Florida municipality. It is located within the City of Key West Area of Critical State Concern. DEO is the state land planning agency and has the statutory duty to review and approve LDRs adopted in an area of critical state concern. See § 380.05(6), (11), Fla. Stat. (2012).1 The Proposed LDRs The proposed LDRs are in sections 122-1016, 122-1017, 122-1018, and 122-1022 of the City of Key West Code. Petitioner's challenge focused on section 122-1017, which was amended to include emergency and temporary homeless shelters in its description of permitted uses in the PS district: Uses permitted in the public and semipublic services districts are as follows: * * * (13) Essential public services and facilities inclusive of but not limited to; drainage facilities, and emergency services; i.e. staging areas responsive to declared emergency, with the exception of shelters for the homeless, which are regulated as a conditional use; Standing Petitioner’s property is located near two PS districts, one of which is a former City landfill and the other is the site of the Monroe County Jail, Sheriff’s Department administrative offices, and the Keys Overnight Temporary Shelter. Petitioner's condominium units are separated from the inactive landfill by an area of wetlands (designated Conservation Outstanding Waters), which creates a natural buffer. The condominium units are separated from the existing shelter by an inlet of the Gulf of Mexico and a General Commercial zoning district on the opposite upland. In its petition for hearing, Petitioner alleged that it's members would be substantially affected by the proposed LDRs because Petitioner's members have been "involved in the development and enforcement of the City of Key West's Comp. Plan and implementing land development regulations" and they "rely on the Comp. Plan and its implementing land development regulations to protect their quality of life and ability to safely evacuate from the Florida Keys in the event of a hurricane or other emergency." At the final hearing, Petitioner made only a vague reference to adverse effects from the existing Keys Overnight Temporary Shelter, without any identification of the impacts. Petitioner never articulated how the operation of a homeless shelter on the nearest PS-designated lands would result in injury to its members. Petitioner focused on hurricane evacuation, implying that its members would be impeded in their attempt to evacuate Key West if the LDRs are approved. Whether a Homeless Shelter is a Residential Land Use Petitioner argues that proposed section 122-1017 is inconsistent with Policy 1-2.6.1 of the City’s Comprehensive Plan, which describes the land uses allowed under the PS land use designation: The Public and semi-public institutional (PS or HPS) land use designation is intended to accommodate existing public and semi-public services including: governmental administration buildings; public schools and not-for-profit educational institutions; hospital facilities and supportive heath care units; arts and cultural or civic facilities; essential public services and facilities; cemeteries; the City landfill; fire and emergency operation facilities; public and private parks and recreation areas; utilities; extensive open areas comprising major committed public and semi- public open spaces; and other similar activities as shall be identified in the land development regulations. The Comprehensive Plan establishes intensity limits for land uses in PS districts, based on floor area ratio. Residential uses are not among the land uses identified in Policy 1-2.6.1. Residential land uses are regulated elsewhere in the Comprehensive Plan by density limits or dwelling units per acre. Petitioner contends that homeless shelters are residential land uses, which are not allowed in PS districts. The City contends, and DEO agrees, that homeless shelters are not residential uses, but are institutional land uses and also essential public services and facilities, which are authorized land uses in the PS district. The Comprehensive Plan does not define the terms "institutional" or "essential public services and facilities." The term "residential uses" is defined in the Comprehensive Plan as "activities within land areas used predominantly for housing." Petitioner argues that emergency shelters and temporary shelters are types of housing and, therefore, meet the definition of residential uses. The term "housing" is not defined. The term "housing unit" is defined in the Comprehensive Plan as an "occupied or vacant house, apartment or a single room occupied by one individual known as a single room occupancy which is intended as separate living quarters." A homeless shelter does not consist of housing units. Chapter 86 of the City Code defines “residential activities” as single-family/two-family dwellings and accessory units, multifamily dwellings, manufactured housing, group homes, and approved home occupations. Hospitals, nursing homes, and other similar facilities provide temporary housing for the ill, infirm, or injured, but they are not treated as residential activities in the City Code. Emergency shelters, whether for homeless persons or for persons with homes, are not ordinarily thought of as the residences of the sheltered persons. Nevertheless, to add to the confusion, the Comprehensive Plan defines the word "sheltered" as "a person or family whose primary nighttime residence is a supervised, publicly or privately operated shelter." Petitioner argues that homeless shelters are residential in nature because they provide housing for sleeping, dining, bathing, and storage of personal items, all of which are characteristics of residences. The definition of "residential uses" in the Comprehensive Plan, by itself, is not helpful to resolve this dispute. However, when all the definitions and related provisions of the Comprehensive Plan and the City Code are considered together, they reflect a fundamental distinction between residences and institutional housing, such as hospitals, nursing homes, mental institutions, jails, and prisons -- institutional housing is supervised and controlled by the public or private operator; a residence is not. Like a hospital patient, a homeless person does not have control over his or her room and its contents and cannot exclude others. The supervisory staff cannot be locked out and they remain in control of almost all aspects of the occupancy. In a residence, the occupant has exclusive use and control of the premises, or much greater use and control than in institutional housing. Therefore, the City's interpretation of the term "institutional" in Policy 1-2.6.1 of the Comprehensive Plan as including homeless shelters is a reasonable interpretation. Providing shelter to homeless persons is now a public function performed by nearly all cities in Florida and the United States. The City's interpretation of the term "essential public services and facilities" in Policy 1-2.6.1 to include homeless shelters is also a reasonable interpretation. Growth Management In its petition, Petitioner claims that the proposed LDRs would result in "uncontrolled population growth." Petitioner presented no evidence to prove this claim. The claim is speculative. The City presented evidence that the number of homeless persons in the City is decreasing. Due to the difficulty in evacuating Key West during a hurricane, a Building Permit Allocation System ("BPAS") was established to limit future growth so that it will not prevent achievement of the goal to evacuate Key West 24 hours before hurricane-force winds make landfall. BPAS limits are derived from a hurricane evacuation model and are based on the ability of residents to drive to safe areas. Petitioner contends that the LDRs are invalid because they violate BPAS by failing to account for the greater numbers of homeless persons that would have to be evacuated during a hurricane. It has already been noted that Petitioner did not prove its claim that the LDRs would increase the population of homeless persons in the City. The City's hurricane evacuation plan calls for evacuating the "special needs population," including homeless persons (in buses), before the 24-hour period in which the permanent population must be evacuated. Furthermore, the hurricane evacuation model is based on the estimated number of cars involved in the evacuation and the model assumes that the homeless do not have cars. The proposed LDRs would have no effect on BPAS. There are three existing or approved facilities in Key West, two for homeless women and children and one for persons with HIV/AIDS, which were subject to BPAS. Petitioner contends that these projects support its contention that homeless shelters must be accounted for in BPAS. However, the three facilities were shown to be unique because they are essentially apartment buildings. Their occupancy is not supervised in the same way that homeless shelters are supervised. In addition, because these projects are for the working poor who are expected to have automobiles, they will affect the 24-hour evacuation model. Principles for Guiding Development DEO must determine that the challenged LDRs are consistent with the Principles For Guiding Development for the City of Key West, as set forth in Florida Administrative Code Rule 28-36.003(1). Although the petition for hearing included a claim that the proposed LDRs are inconsistent with these principles, Petitioner appears to have abandoned the claim in its proposed recommended order. Providing emergency and temporary shelters for the homeless population achieves two principles for guiding development stated in rule 28-36.003(1): Strengthen local government capabilities for managing land use and development. * * * (h) Protection of the public health, safety, welfare, and economy of the City of Key West, and the maintenance of Key West as a unique Florida Resource. The challenged LDRs strengthen the City’s ability to manage future land development by establishing criteria for the approval of homeless shelter as conditional uses. Providing shelters for the homeless obviously protects the public health, safety, and welfare of homeless persons who use the shelters. The shelters also help to decrease panhandling and loitering in public areas by homeless persons, especially in areas with high visibility and use by tourists.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Petitioner is not substantially affected by the proposed LDRs, and approving the LDRs adopted by the City of Key West Ordinance No. 12-16. DONE AND ENTERED this 26th day of March, 2013, 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 26th day of March, 2013.
The Issue The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
The Issue The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2005.
The Issue The general issue for determination in this administrative proceeding is whether Ordinance No. 1266-2002, adopting Amendment 02-1 (Plan Amendment) to the City of Rockledge's Comprehensive Plan, is not "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing, as amended.
Findings Of Fact The Parties Petitioners, Shelly W. Sutterfield, William E. Sutterfield, Becky Kosher, and James Kosher, are residents of the City, who reside within Pine Cove Subdivision, which is east of Fountain's property. This subdivision is located in the City's Planning District 8. Ms. Sutterfield stated that Petitioners want "to maintain the integrity of [their] planning district as low and medium-density in [their] neighborhood." Ms. Sutterfield also believed that the Plan Amendment "will add a high-density residential close to -- in close proximity to [their] neighborhood" and that "it will set a precedent for others to do the same thing." Ms. Kosher agreed. Petitioners appeared at most, if not all, of the local government public hearings held regarding consideration of the Plan Amendment leading up to and including the adoption of Ordinance No. 1266-2002 by the City. Petitioners opposed the Plan Amendment during each hearing. See also Findings of Fact 35-40. The Department is the state land planning agency responsible for reviewing local government comprehensive plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes (Act). This includes review of the proposed Plan Amendment adopted by the City, and a determination of whether the proposed Plan Amendment is "in compliance" with the Act. In this case, the Department reviewed the Plan Amendment submitted by the City and determined that it was "in compliance" with the Act. The City is the oldest incorporated municipality in Brevard County. The City is located on the shoreline of the Indian River Lagoon south of the City of Cocoa and north of Palm Shores and Melbourne. The City is approximately 10 square miles with a population of 20,174 as of 2000. The City is primarily a residential community, although it has some light, clean industry as well as a variety of commercial centers and institutional facilities, including a hospital, four public and three private schools, and churches of various denominations. The City has adopted a Comprehensive Plan and a FLUM, which was amended last on July 19, 2000, excluding the Plan Amendment at issue in this case. The City is divided into eight planning districts as reflected on the City's FLUM and in the text to the FLUE, Chapter 1, Appendix A, Planning District Guidelines, of the Comprehensive Plan. On May 19, 1999, the City adopted its Evaluation and Appraisal Report (EAR)-based amendments to its Comprehensive Plan pursuant to Ordinance No. 1182-99. Fountain is incorporated under the laws of the State of Florida and owns all the property (located within the City of Rockledge) that is the subject of the Plan Amendment. The Plan Amendment On or about August 23, 2001, Fountain submitted an application to the City, requesting the Plan Amendment at issue in this proceeding. First, Fountain requested a change to the City's FLUM, removing their property from Planning District 8, and placing it in Planning District 5. The property consists of approximately 9.163 acres (site or subject property) and is located adjacent to the intersection of Huntington Lane, to the east, and Eyster Boulevard, to the north. The property has pine trees and open grass areas. The subject property has no significant historical value and no environmental concerns have been raised. See Findings of Fact 50-68 for a more complete description of the subject property in relation to existing, surrounding land uses. As noted in Fountain's application: The applicant is proposing to build a high- rise apartment complex and needs additional density to meet the scale of economy for the project. The applicant also believes that with the FPL substation directly to the south and the property to the west being a large multi-family apartment project and the property to the north allowing manufacturing[,] [i]t would make more sense for the property to be in Planning District 5, instead of Planning District 8. The property to the east allows a mixture of low-density residential and single-family residential. In its application, Fountain claimed that the maximum allowed development under the existing designation in the FLUM for the property site is 96 residential dwelling units. Petitioners dispute this number and claim that the error is material. If the Plan Amendment is approved, the maximum allowable development under the proposed designation for the site is 118 dwelling units, i.e., 9.163 acres times a proposed maximum density of 13 dwelling units per acre. There is no dispute regarding this number. To this end, Fountain indicated that it "is willing to enter into a binding development agreement during the rezoning phase with the City to ensure adequate buffering to adjoining properties, where needed, as well as eliminate the possibility of the property to be used for commercial or manufacturing purposes." Fountain submitted a draft agreement to the City. However, no agreement has been signed by Fountain or the City. The subject property (without the Plan Amendment) is located in the northwest quadrant of Planning District 8. Planning District 5 is located immediately north of the subject property (across the street), and north of Eyster Boulevard, which runs east and west. Planning District 5 is located on the FLUM as a mixed- use planning district. The subject property, and the property to the west, south and east, are located in Planning District 8, which is designated as medium density residential on the FLUM. As defined in the City's Comprehensive Plan, "[m]edium density residential land uses shall be at a density greater than three (3) dwelling units per acre and not exceeding fourteen (14) dwelling units per acre." As provided in the Comprehensive Plan "Guidelines" for Planning District 5, the density for Planning District 5 for a new residential development "is limited to a maximum of fourteen (14.0) dwelling units per acre. . . ." With respect to Planning District 8, the "Guidelines" provide that the [m]aximum density allowed shall not exceed five (5) dwelling units per acre, current multi-family zoning districts shall be limited to existing densities. Any proposed zoning district changes shall be limited to a maximum of five (5) dwelling units per acre. Undeveloped areas west of Fiske Boulevard will be encouraged to be developed with a maximum of three (3) dwelling units per acre in order to protect the natural character of the land. In addition to requesting a change in the FLUM designation for the site, from Planning District 8 to Planning District 5, Fountain also proposed, and the City ultimately adopted, a textural Plan Amendment to the Planning District 5 "Guidelines," including paragraph 5.A., which provides: Those areas located on the west side of Huntington Lane and south of Eyster Boulevard and north of the Florida Power and Light sub-station, may develop residential at a maximum of thirteen (13.0) dwelling units per acre (appropriate zoning districts include R2A, R3, TH). No principal structure shall be constructed within 225 feet of the right-of-way of Huntington to a distance of 425 feet from the south boundary of the described property, and not closer than 50 feet to Huntington Lane beyond the 425 feet. Other conditions include the submittal of a binding site plan, building height limited to a maximum of 38 feet; deceleration lane to any point of ingress and egress, traffic calming techniques will be used at entrances, and sidewalk along Huntington Lane for the entire length of the property. Paragraph 5.A. was adopted as a site-specific addition within the Planning District 5 "Guidelines." Petitioners claim that this provision, when read with other provisions discussed in Planning District 5, allows Fountain to develop authorized land uses on the subject property, other than the development of only residential dwelling units. When read in its entirety, and based on the weight of the evidence, the text Plan Amendment authorizes only residential dwelling units and no other land use. The inclusion of only residential zoning districts and the clear language that the property may be developed "at a maximum of thirteen (13.0) dwelling units per acre" bolster this finding. Further, it is not uncommon for local governments to include various restrictions, such as maximum height restrictions and setback requirements, in plan amendments. These restrictions are not considered land development regulations within the context of the Comprehensive Plan. Rather, they are plan policies which define the parameters for future development within the planning districts, including Planning District 5. There is a body of "land development regulations" which are intended to implement comprehensive plans and are subject to independent scrutiny. See, e.g., Section 163.3202, Florida Statutes. However, the restrictions noted in the Plan Amendment are not land development regulations within the context of this "in compliance" review proceeding. Donald Robert Griffin of the City prepared a report consisting of two pages. Prior to preparing the report, Mr. Griffin reviewed the properties surrounding the subject property and also analyzed the potential impacts of the Plan Amendment on roads, sewer, and water, for example. In analyzing paragraph 5.A., City staff also considered in part setbacks and reducing the zoning on the site to ensure compatibility. The staff report includes input from City department heads, the City Manager, and other staff. Staff recommended approval. Staff indicated that the change in the residential land use classification for the approximate 9.163 acres would be consistent with the City's allocation percentages in its Comprehensive Plan. (The "need" for this Plan Amendment is not at issue in this proceeding.) Staff further noted: It would be staff's opinion that if the Brevard County enclave: (east of Fiske Blvd.; north of Howard Blvd. and south of Eyster Blvd.) was annexed into the city it would probably be put into Planning District 5, since it has a combination of mixed land uses. In addition, those properties immediately to the west of the subject property are identified as Woodhaven Apartments (799 Eyster Blvd.) a multi-family complex and the BCARC Group Home (951 Eyster Blvd.) a multi-family complex. Immediately to the south of the subject property is an FPL electrical substation. Immediately east of the subject property is Huntington Lane, a 50-foot road right-of-way, and property zoned either R-2A or R-2 on the east side of Huntington Lane. Immediately to the north of the subject property is Eyster Boulevard, a 100-foot-right-of-way and vacant M-1 industrial property. At the eastern terminus of Howard Boulevard, Florida Power and Light has a 100-foot wide easement, where power lines are currently in place. The easement limits the additional expansion of buildings into this 100-foot area. The property on the east end of Pine Cove, has a mixture residential and commercial uses adjacent to it, as part of Planning District 5. If this Comprehensive Plan Amendment is approved to allow the proposed change into Planning District 5, staff would recommend that when the property goes for rezoning, based on compatibility and consistency issues, that only residential land uses be allowed on the 9.163 acres. In addition, if the Amendment is approved, it should be suggested to the City Council that the area between Howard Boulevard and FPL Easement to the South; Fiske Boulevard to the west; Huntington Lane to the East; be incorporated into Planning District 5 at a future date. The Applicant does not have control over any other property beyond the 9.163 acres, noted in the application. Fountain's planner, Rochelle W. Lawandales, prepared a planning report dated October 2001. This document was submitted to the City for its consideration. This planning report provides technical information to support the proposed textural addition to the "Guidelines" (5.A.) for Planning District 5 and change to the FLUM. Ms. Lawandales describes the subject property, including the existing density for the approximate 9.163 acre site, as follows: "Approximately 6 acres [of the 9.163 acres] are zoned R-3 with a density of 13 units per acre. The remaining approximate 3 acres are designated as R-2 and R-2A. R-2A is medium density multi-family district allowing up to 8 units per acre and the R-2 allows up to 5 units per acre." (emphasis added.) (In 2001, the City approved a rezoning request for the six-acre parcel, changing the zoning from R-2A to R-3. According to the Comprehensive Plan, an R-3 designation authorizes a maximum density of 14 units per acre, not 13. It is uncertain why Ms. Lawandales used 13 units per acre.) The multiplication of approximate 9.163 acres times the noted (by Ms. Lawandales) densities per acre, yields a specific density of 96 residential units, which is the same number used in item 19 of Fountain's application. When this number (96) is subtracted from the maximum allowable development under the proposed designation (Plan Amendment) for the subject property, i.e., 118 units (9.163 X 13), the difference is 22, which purports to be the number of additional units which would be authorized if the proposed Plan Amendment is approved. Petitioners assert this number is incorrect and the record supports Petitioners' position in part. Prior to the EAR-based amendments to the City's Comprehensive Plan adopted in 1999, it appears that the zoning for the approximate north six acres of the subject property was R-2A, with a density of eight units per acre, which yields 48 units. The density for one acre was R-2A, which yields an additional eight units per acre. The remaining two acres were assigned a designation of R-2, which yields a density of five units per acre, or ten total units per acre for the two acres. When added together, the approximate 9.163-acre parcel yields a maximum allowable development for the subject property, pre-EAR- based amendment, of 66 units per acre, not 96 units per acre. This means that the maximum allowable additional development on the subject property under the existing land use designation, within the Planning District 8 pre-EAR-based amendments is 52, or 118 minus 66, not 22. Petitioners claim that the post-EAR based amendment zoning would allow five units per acre for the north six acres or approximately 31 units. (Presumably, this is based on Petitioners' contention that the density authorized for Planning District 8 for "post-EAR based amendment zoning" is five dwelling units per acre based on the following Planning District 8 statement regarding density: "Maximum density allowed shall not exceed five (5) dwelling units per acre, current multi- family zoning districts shall be limited to existing densities.") The zoning for the remaining three acres remained the same, which yields 18 units, for a total of 49 units, which would be allowed on the subject property without the Plan Amendment. According to Petitioners, this means that the Plan Amendment will authorize an additional 69 units, i.e., 118 minus 49, not the 22 units disclosed by Fountain. Fountain's representation that approval of the Plan Amendment would yield only an additional 22 dwelling units on the subject property was carried over to the Department's two (2) staff analyses, which were prepared in response to the proposed Plan Amendment. See Finding of Fact 43. Whether this revelation would have changed the City's, or the Department's, decisions is unknown, although the City Council and the Department were advised that the Plan Amendment authorized a maximum of 118 units. It is persuasive that the Department, in assessing whether the Plan Amendment is "in compliance," in part, considered the total maximum theoretical density, or 118 residential dwelling units, which may be authorized by the Plan Amendment on the subject property. Importantly, the maximum density of the proposed land use is expressly stated in the textural Plan Amendment, which was approved by the City, and found to be "in compliance" by the Department. Local Government Hearings Regarding the Plan Amendment On September 17, 2001, the Citizen's Advisory Committee (Committee) met to consider the Plan Amendment. The minutes reflect that the staff report mentioned in Finding of Fact 25 was presented to the Committee; that the Committee had several questions, which are noted in the minutes along with the responses; that Fountain gave a brief presentation using Ms. Lawandales' planning document referred to herein; and that several residents, including Ms. Kosher and Ms. Sutterfield, spoke in opposition. A motion to approve the request failed by a vote of four to two. On October 2, 2001, the Planning Commission (Commission) met to consider the proposed Plan Amendment. Fountain presented its position. (The Commission is the land planning agency for the City.) Ms. Lawandales also gave a presentation on behalf of Fountain. Several persons who are identified as having Cocoa and Rockledge addresses, appeared before the Commission. While some persons from Cocoa and Rockledge favored the proposal, the majority of the persons with Rockledge addresses opposed the project. Mr. McKnight, the City Manager, stated that the hearing before the Commission "did not require advertisement in the newspaper, as previously done; therefore, this too, was not an issue of concern, but that the property had been posted and all property owners within 500 feet were mailed a notice." Ms. Kosher and Ms. Sutterfield opposed the Plan Amendment. The Commission unanimously approved the Plan Amendment. On October 17, 2001, the City Council conducted a public hearing "to consider the request for Comprehensive Plan Amendment and cause the scheduling of a Transmittal Hearing." Ms. Kosher, Ms. Sutterfield and others opposed the Plan Amendment. Others supported the request. In response to concerns raised by Ms. Sutterfield regarding advertisements for this meeting and the Planning Commission meeting on October 2, City Manager McKnight responded that a newspaper advertisement is not required until the Transmittal Hearing. By unanimous vote, a motion to authorize a public hearing before the Commission on November 6, 2001, and a transmittal hearing before the City Council on November 7, 2001, was passed. On November 1, 2001, the City had published a "Notice of Change of Land Use" in "Florida Today," a newspaper of general circulation, published in Brevard County. This "Notice" advised the public of hearings to be held on November 6, 2001, before the Planning Commission and on November 7, 2001, before the City Council. Ms. Sutterfield received notice of the transmittal hearings by U.S. Mail prior to the hearings.1 On November 6, 2001, the Commission met once again to consider the Plan Amendment. The minutes of this public hearing reflect that "this was a transmittal public hearing." Local residents, including Ms. Kosher and Ms. Sutterfield, voiced their opposition to the Plan Amendment. The Commission voted in favor of the Plan Amendment by a vote of six to one. On November 7, 2001, the City Council met to consider the Plan Amendment. This transmittal hearing was held six days, not seven days, after the notice was published. Once again Ms. Kosher and Ms. Sutterfield opposed the Plan Amendment along with two other persons giving a Rockledge address. By unanimous vote, the City Council approved a motion to authorize transmittal of the Plan Amendment to the Department. This was the first of two transmittal hearings conducted by the City. The second was conducted on February 6, 2002, after timely notice was advertised. On February 6, 2002, the City adopted Ordinance No. 1266-2002, incorporating the Plan Amendment. Notice The City did not comply with the seven-day advertising requirement set forth in Section 163.3184(15)(b)1., Florida Statutes. See Conclusions of Law 101-102. It is concluded, however, that the "due public notice" procedures set forth in the City's Land Development Code do not apply. See Conclusion of Law 101. This is not fatal. Ms. Sutterfield and Ms. Kosher attended the November 6 and 7, 2001, transmittal hearings, as well as other hearings, both before and after these transmittal hearings, furnishing the City with their comments and objections at each hearing. Also, Ms. Sutterfield received notice of the transmittal hearings by U.S. Mail prior to the hearings. Ms. Kosher has been involved with this matter since November of 1999. Petitioners have shown no prejudice arising out of the City's non-compliance with the advertising/notice requirement for the transmittal hearings. The Department's Review of the Plan Amendment On November 15, 2001, the Department received the City's letter of transmittal with supporting documentation, including the proposed Plan Amendment. By Memorandum dated January 4, 2002, the Department "[s]taff has identified no potential objections or comments with the proposed amendments." With respect to the textural Plan Amendment to Planning District Policy 5.A., the Department staff stated: "The addition of this policy to Planning District 5 limits the potential growth of the parcel to 13 dwelling units per acre from the 14 now allowed in the Planning District. This is consistent with District 5 Mixed Use and Medium Density Residential Land Uses. Additionally the lower dwelling unit concentration in combination with the specific building set back regulations will work to buffer District 8 from the non-residential land uses in District 5." With respect to moving the approximate 9.163 acres subject property from Planning District 8 to Planning District 5, the Department staff noted: Moving the tract of land from Planning District 8 to Planning District 5 will allow for an additional 22 dwelling units to be developed on the land. The applicant is willing to enter into a binding development agreement during the rezoning phase with the City to ensure adequate buffering to adjoining properties, as well as eliminating the possibility of the property being used for commercial or manufacturing purposes. The analysis of existing public facilities provided shows the infrastructure is adequate to support the additional 22 dwelling units the proposed land use change would allow. The site is not home to any significant historic resources nor is it home to any endangered, threatened or species of special concern. The Department did not receive any negative comments from the Florida Department of Transportation, the Florida Department of State, the Florida Department of Environmental Protection, or the East Central Florida Regional Planning Council. The Department received several letters from citizens, objecting to the proposed Plan Amendment and summarized them as follows: "The residents state the high density residential development would be incompatible with the existing low density residential neighborhood. The residents opposing the amendment state it is spot zoning and will set a negative precedent for other developers. Several residents also mention the increase in traffic and how this would impact the safety of school children. The residents question the ability of the existing infrastructure will [sic] be adequate to serve the increased population. They also mention the insufficient notice given for the LPA meeting." On February 6, 2002, the City approved the Plan Amendment during a public hearing and, thereafter, sent the Department Ordinance No. 1266-2002, with supporting documents. Notice of this public hearing was published in the January 24, 2002, edition of The Reporter, published weekly in Brevard County, and a newspaper of general circulation. On March 11, 2002, the Department staff conducted a review of the Plan Amendment in order to prepare its notice of intent. The staff analysis reflects no comments or objections from the Department with respect to the Plan Amendment. On March 29, 2002, the Department had published "notice of its intent to find the Amendments to the Comprehensive Plan for the City of Rockledge adopted by Ordinance No. 1266-2002 on February 6, 2002, IN COMPLIANCE, pursuant to Sections 163.3184, 163.3187 and 163.3189, F.S." Thereafter, Petitioners filed a timely challenge to the Department's Notice of Intent. Petitioners' Challenges Petitioners contend that the Plan Amendment is not "in compliance," as defined in Chapter 163, Part II, Florida Statutes, because the Plan Amendment is not supported by adequate data and analysis; is not compatible with surrounding land uses; and is inconsistent with the City's Comprehensive Plan. Petitioners also argue that the Plan Amendment approves spot zoning or spot planning. Petitioners further contend that the City did not comply with statutory and City notice requirements prior to its transmittal hearing and, as a result, that the Plan Amendment is void ab initio. Data and Analysis Description of the Subject Property and Surrounding Area Fountain's property, approximately 9.163 acres, is rectangular in shape and is bounded on the north by, and directly abuts, Eyster Boulevard. This site is located in the geographic center of the City. Eyster Boulevard, abutting and to the north of the site and between Fiske Boulevard and Murrell Road, is a two-lane urban collector road (between Fiske Boulevard and Murrell Road), with a right-of-way width of 100 feet, and with a current Level of Service (LOS) of C, with a minimum acceptable LOS of E. (There are no traffic/transportation-related issues raised in this proceeding. Also, there is no evidence that the Plan Amendment will cause any reduction or deficiencies in the LOS for utilities.) Across Eyster Boulevard to the north of the site and extending west from Huntington Lane in Planning District 5, are industrial uses, mobile homes, apartment complexes, some commercial uses and Kennedy Middle School. The subject property is bounded on the west by an existing two-story, multi-family development, developed to eight units per acre, known as Woodhaven Apartments. The development of these apartments pre-dates the adopted EAR-based amendments. The apartments are located in Planning District 8, and will continue to be located in Planning District 8 if the Plan Amendment is approved. The Brevard County Association for Retarded Persons (BCARC), located west of Woodhaven, is a group home multi-family complex also located in Planning District 8, which has been developed at more than 25 units per acre. Development of this facility pre-dates the EAR-based amendments. A Brevard County enclave, consisting of a wide variety of uses, including commercial and manufacturing, is located east along Eyster Boulevard and west to Fiske Boulevard, and west of the BCARC. This enclave does not have a land use designation on the FLUM (nor is it within Planning District 8) because it is outside the jurisdiction of the City. (Objective 8.2 of the Comprehensive Plan states in part: "Any proposed development will be evaluated for its impact on adjacent local governments. ") The subject property is also bounded on the south by a Florida Power and Light (FPL) substation, within planning District 8, which has a R-2 zoning classification, five units per acre. There is a 100-foot FPL easement which runs east and west, directly south of the substation. This substation was in existence at the time of the adoption of the EAR-based amendments. Also, church property is located south of the 100 foot easement. The subject property is bounded on the east by, and directly abuts, Huntington Lane. Huntington Lane runs perpendicular north and south of Eyster Boulevard. Huntington Lane, south of Eyster Boulevard, which abuts the subject property, apparently carries no designation in the City's Comprehensive Plan, and is considered to be a local two-lane road. (Huntington Lane north of Eyster Boulevard is designated by the City in its Comprehensive Plan as a local road.) The right-of-way width for Huntington Lane adjacent to and east of the subject property is 50 feet. Immediately east of the site and adjacent to the Huntington Lane right-of-way, is vacant property of an approximate depth of 175 feet. This vacant land runs south to north and then east, abutting Eyster Boulevard to the south. For the most part, this vacant land has a density under the Comprehensive Plan of R-2A, which authorizes a density of eight units per acre. There is also vacant land to the east of the site and abutting the Huntington Lane right-of-way, which is due south of the rectangular vacant land, which has a density of R- 2, which permits five units per acre. The single-family subdivision (Pine Cove) is located to the east of the vacant land which abuts Huntington Lane. Petitioners reside in this single-family subdivision. (The maximum potential density for the subdivision allowed multi-family residential units, with eight units per acre. However, the developer opted to build single-family residential homes instead.) The predominant land use character of Planning District 8 is single-family residential. This includes the subdivision where Petitioners reside. The subject property has approximately 900 feet of frontage on Huntington Lane. The subject property is approximately 1,500 to 2,000 feet east of Fiske Boulevard, which is a roadway designated in the City's Comprehensive Plan as a four-lane divided minor arterial. (It is contemplated that Eyster will ultimately have five lanes. There are also existing intersection improvements at the corner of Huntington and Eyster.) The subject property is approximately one mile west of Murrell Road, which is a roadway designated in the City's Comprehensive Plan as a four-lane divided minor arterial. Both Fiske Boulevard and Murrell Road have a center turn lane with no islands. Prior to the proposed Plan Amendment, all the property within the City located south of and along Eyster Boulevard, between Fiske Boulevard and Murrell Road, was included in Planning District 8, except for the several parcels (referred to in this proceeding as "incursions") east of the subdivision, abutting Murrell Road. Also, prior to the proposed Plan Amendment, all of the property within the City located north of and along Eyster Boulevard, between Fiske Boulevard and Murrell Road, was included in Planning District 5. The incursions along Murrell Road are authorized by the City in its Comprehensive Plan. The incursions are contiguous to the residential dwellings and not separated by a 50 foot road right-of-way, as in the case of Huntington lane. However, these incursions are approximately one mile from the subject property and Petitioners' residences. These incursion areas along Murrell Road allow for Planning District 5 and Planning District 6 land uses pursuant to specific textural provisions set forth in the Comprehensive Plan for each of these planning districts. These textural provisions restrict Planning District 5 and Planning District 6 incursions in that area to a maximum depth of 630 feet west of Murrell Road, as well as provide other limitations on the types and intensities of development. (According to the Comprehensive Plan, the first 300 feet of the 630 feet can be developed at 14 units per acre, and the next 330 feet at eight units per acre. Also, "[r]esidential uses may be allowed to locate on the west side of Murrell Road to a depth of six hundred thirty (630) feet. Commercial uses may also be allowed to a depth of three hundred (300) feet.") The provisions for Planning District 6 incursions west of Murrell Road, as to densities and depth of development, are the same as those recited for Planning District 5 incursions on the west side of Murrell Road. The Planning District 5 and Planning District 6 incursions along Murrell Road predate the EAR-based amendments. Other than the incursions along Murrell Road, there have been no incursions of Planning District 5 into Planning District 8 until the Plan Amendment. The existing provisions covering Planning Districts 5 and 8 were the result of EAR-based amendments to the City's Comprehensive Plan adopted by the City in mid-1999. Planning District 8 was created by splitting the area from a then larger existing planning district.2 The City's Comprehensive Plan Planning Districts In its Comprehensive Plan, the City created eight planning districts. The boundaries and policies in the planning districts are fluid. Planning District 8, in which the subject property was located prior to the proposed Plan Amendment, is designated as the Central Rockledge Area. The "Area Objective" of this planning district is [t]o maintain and improve this area as a low and medium density residential area and insure that future development will not substantially alter or depreciate the existing character of the area. This planning district also authorizes, in part, the following types of land uses: Development within the district will be limited primarily to single-family detached dwellings and directly related land uses such as parks, schools, utilities, streets and other such activities whose primary purpose is to serve residents of the district. . . . Limited commercial, professional, and multi-family residential uses will be considered in appropriate locations based on severe compatibility and consistency tests. After due consideration by the city other zoning district [sic] shall be limited to existing use which range from R2A, R-3, TH, P1, C1, to C2, which may be changed and approved only if consistent with, and compatible to the intent or [sic] criteria of this district. The maximum density allowed in Planning District 8 "shall not exceed five (5) dwelling units per acre, current multi-family zoning districts shall be limited to existing densities. Any proposed zoning district changes shall be limited to a maximum of five (5) dwelling units per acre. Undeveloped areas west of Fiske Boulevard will be encouraged to be developed with a maximum of three (3) dwelling units per acre in order to protect the natural character of the land." Planning District 5 is designated as the Barton Boulevard Area. The "Area Objective" for this planning district is [t]o guide development in this area toward the establishment of a mixed-use area consisting of highly intensive mixed uses while maintaining compatibility with regional thoroughfares, local roads, municipal systems, and adjacent land uses. In part, "[d]evelopment in this district wall be limited to retail trade, business and professional offices, multiple family attached dwellings, public and semi-public service, . . . and other such activities that are compatible with and support the intent of this district." The density of new residential development in the Planning District 5 "is limited to a maximum of fourteen (14.0) dwelling units per acre. . . ." "Compatibility" is discussed in the Planning District 5 "Guidelines" as follows: Urban design guidelines shall be developed which address appropriate scale, materials, building orientation, signing, landscaping, detailing, and other physical features within the district. Adherence to the design guidelines shall be required to insure orderly development of the area and compatibility of uses within and adjacent to the district. Adequate vegetation, constructed buffers (fences, walls, berms, etc.) and/or open space will be used between different land uses. Compatibility, Suitability, and Urban Infill The Plan Amendment proposes the development of a maximum of 118 residential units, with a maximum density of 13 units per acre for the 9.163 acres. The site and the surrounding property to the east, south, and west are designated as "medium density residential" land uses on the FLUM. According to the Comprehensive Plan, a low density residential land use is restricted to a "density not exceeding three (3) dwelling units per acre." A medium density residential land use would include "a density greater than three (3) dwelling units per acre and not exceeding fourteen (14) dwelling units per acre." The site (as proposed) and the surrounding property are within the parameters of these measuring sticks, with the site (as proposed) at the upper end and the apartments (to the west) and the subdivision (to the east), as developed, at the lower end of the density spectrum. Yet both areas are within the medium density residential definition. In reviewing the Plan Amendment, the Department considered whether the uses proposed in the Plan Amendment in Planning District 5 were compatible with surrounding property, including the subdivision east of the site. In support, Mr. Wilburn testified in part: "We look at the surrounding area based on internal compatibility or compatibility in [sic] any other internal policies they may have as far as the movement or restriction of a planning district." Whether a proposed land use is compatible with surrounding land uses is a question of degree, rather than black and white. To this end, the Department examines what the comprehensive plan allows from a standpoint of maximum proposed density. On the other hand, the Department does not ignore the reality as to actual build-out on surrounding property. Consistency with the authorized land uses in Planning District 5 was also considered. As noted by Mr. Wilburn, "in this case Planning District 5 allows residential, industrial, commercial. Commercial or heavy industrial might be inconsistent next to residential, but as part of the plan amendment, they have limited it strictly to residential." However, the Department did not review the Plan Amendments for consistency with the Goals, Objectives, and Policies for Planning District 8 because the City is proposing to change the boundaries and make-up of Planning District 5, not Planning District 8. Here, as noted above, the issue of whether the proposed development as contemplated by the Plan Amendment is "compatible" with the surrounding property is largely a question of degree. For example, a nine-story high-rise, with 50 units per acre, next to a single-family residential area would most likely present compatibility problems. In this vein, Henry B. Iler, Petitioners' expert planner, opined that the proposed (by the Plan Amendment) three-story multi-family housing project would not be compatible with the single-family subdivision to the east of the site. Mr. Iler believes that going from five or eight units per acre to 13 units per acre takes the proposed development out of the existing character of the subdivision. Stated otherwise, Mr. Iler believes that with a density of eight units per acre, the land could be developed with single-family homes and "a few simple townhouses," whereas, with 13 units per acre, the land use would "move into the apartment/attached- housing product." For Mr. Iler, it is the latter described development which makes the proposed development "out of character" with the existing subdivision. The Department's expert planner, Mr. Roger Wilburn, and other experts, opined to the contrary. For Mr. Wilburn, compatibility is one of degree. In light of the nature of the surrounding property, and given the restrictions in the Plan Amendment, e.g., transition buffers (distance requirements in paragraph 5.A. and other provisions set forth in the Planning District 5 "Guidelines," and the restriction to residential use only, it is at least fairly debatable that the Plan Amendment, authorizing the development of the 9.163 acres as residential, with a maximum density of 13 units per acre, is "compatible" with the surrounding property and is not otherwise inconsistent with the Comprehensive Plan. It is also at least fairly debatable that the Plan Amendment is "suitable" to the area. (For example, there are no environmental, topographical, or soil factors at issue which might make the land unsuitable for its intended use.) The subject property may also be considered urban infill as it is in the middle of an urban area, served by existing urban services. The Plan Amendment seeks approval of residential development which is functionally related to surrounding property and is creating a compact development.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by the City of Rockledge in Ordinance No. 1266-2002 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 16th day of September, 2002.
