The Issue The sole issue in this proceeding is whether the rights of W-G Development Corporation in the land known as Future Community, comprising some 3,750 acres in Hillsborough County, have vested within the meaning of F.S. 380.06(12), so as to exempt petitioner from the planning and review requirements of Chapter 380, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In March of 1972, petitioner W-G Development Corporation purchased the remaining Del Webb interests in Sun City Center, an existing residential retirement community of some 1,600 dwelling units, and approximately 11,250 acres of surrounding undeveloped land. Almost immediately, through its consultants and representatives, petitioner began preparation to develop a single master plan for the development of its newly acquired property. The undeveloped land was divided into four parcels. Located South of State Road No. 674 is Sundance Recreational Community (3,150 acres), King's Point West (3,000 acres) 1/ and Sun City Center South (1,350 acres). Future Community lies to the North of State Road No. 674 and comprises 3,750 acres. The total development is to accommodate some 36,495 dwelling units, of which 16,125 are to be located within the residential section of Future Community. An additional 250 acres in Future Community are set aside for a regional office and commercial center. The various portions of the total development are more particularly described on pages 2 through 10 of the Stipulation of Facts attached hereto. The majority of the property acquired by petitioner was unzoned at the time of purchase. While most of the property could have been developed with the zoning existing as of the date of acquisition, petitioner determined that it was in the best interests of all concerned that an overall master plan be prepared and approved due to the magnitude of the proposed development, the potential for future public commitment, financing and the need for overall planning. In May of 1972, petitioner retained the services of architects, engineers and planners to prepare a master development plan which included the rezoning of the total area purchased to community unit (C-U) zoning. Such zoning envisions multiple types of land uses and provides flexibility for the developer and a means of continuous control of the development by the municipality. The master plan or overall site plan entails transportation routes, daily traffic flows, a master drainage plan, sewer and water concepts, density distributions and land uses. Prior to the development of such a plan, an analysis must be made of surrounding land uses, topology, zoning and economic feasibility. After the master plan is approved and the area is rezoned to C-U zoning by the County, the individual subdivision site plans must conform to the master plan or the County can reject them. In this case, petitioner's consultants and planners worked closely with County personnel and officials in the development of the master plan and request for C-U zoning. Discussions with the County ensued regarding water and sewage treatment, the donation of school sites, traffic patterns, the conveyance of road right-of-ways, densities of specific areas, etc. Hearings were held by the Board of County Commissioners on petitioner's application for rezoning in May and June of 1973. On June 22, 1973, Hillsborough County adopted petitioner's request for rezoning and accepted petitioner's C-U Plan by a unanimous vote. At this meeting, petitioner made certain concessions and commitments concerning the donation of school sites, conveyance of property for the widening of State Road No. 674, densities of particular areas and ingress and egress areas. In order to preserve in documentary form the actions and agreements of the parties made on June 22, 1973, petitioner, King's Point West, Inc. and the County executed a document memorializing the same on September 7, 1973. The effective date of the zoning actions by the County was June 22, 1973. In order to assure that public services would be available for the total development, petitioner and Hillsborough County negotiated and entered into certain agreements concerning water and sewer service during the course of preparing the rezoning application. Pursuant to an agreement dated November 6, 1972, and an addendum of February 7, 1973, petitioner paid the County $305,850.00 for 2,200 advance sewer and water connection fees to an existing facility authorized for use of residents in Sun City Center. There were no limitations, restrictions or distinctions as to which areas or parts of the total development would be served through these connections. In addition, petitioner agreed to and did construct prior to July 1, 1973, an interim sewage treatment plant at a cost in excess of $300,000.00. This plant is to be used to serve the existing development pending the construction by the County of a regional treatment plant. It is estimated that the regional plant will be built between 1978 and 1981. The County has now assumed the maintenance and operation of the interim facility. No payment for this facility has been made to petitioner by the County. The federal government will fund up to 75 percent of the construction of a regional plant. Petitioner agreed to match the remaining 25 percent representing a commitment by petitioner of $1,000,000.00 to $1,500,000.00. If Future Community were not to be developed, petitioner would not have committed itself for costs of the regional plant. An addition to the existing facility would have served residents of Sun City. As of July 1, 1973, the First National Bank of Chicago had loaned petitioner $8,500,000.00 for use in developing the subject project. Approximately $3.2 million was disbursed prior to November 6, 1972 (the date of the water-sewer agreement), and about $5.3 million was disbursed between that date and July 1, 1973. At the time of the loan commitment, the Bank understood that the property North of State Road No. 674 was to be developed, as well as the property South. The Bank considered the project as a single development. If petitioner's land holding had been only South of State Road No. 674, the Bank would not have committed itself to the loan. Some of the loan money went for planning purposes. No disbursements were made, by the Bank between June 22nd and July 1, 1973. Among the commitments made by petitioner in exchange for the rezoning approval by the County was the conveyance of school sites to the Hillsborough County School Board. Petitioner agreed to convey to the School Board a total of 195 acres to be used for public school facilities based upon the Board's projected need. It was agreed that at least seven of the school sites would be located in the Future Community or Dominion area of petitioner's development. If the projected need exceeded demonstrated need, the sites were to be used as recreation or park areas for the benefit of residents. As of the date of the hearing, petitioner had not executed any conveyances of school sites to the School Board. Petitioner also agreed, prior to July 1, 1973, to convey to the appropriate governmental body a parcel of land for the widening of State Road No. 674, such obligation to terminate on June 22, 1983. No such conveyance was made as of October 4, 1976. At the time of the hearing, as evidenced by Exhibit 9, petitioner was in the process of constructing and dedicating to the County some 85 acres for a major arterial road in the northern portion of its development. Prior to July 1, 1973, petitioner was issued numerous commercial and residential building permits authorizing construction with an estimated value of some eight million dollars. No permits have been obtained for construction within Future Community and no expenditures have been made for physical development, in Future Community, other than for planning. Although petitioner's entire development of some 11,500 acres was zoned, planned, engineered and financed as a single project, petitioner will probably not develop Future Community until Interstate 75 is completed, estimated to be in 1981. Petitioner's senior vice-president testified that petitioner would have had two hundred residential units in Future Community by now had prior approval been obtained from respondent.
Recommendation Based upon the findings of fact and conclusions of law set forth herein, it is recommended that the Division of State Planning issue to W-G Development Corporation a binding letter that it has vested rights to develop Future Community without compliance with Chapter 380 of the Florida Statutes. Respectfully submitted and entered this 13th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue Whether Amendment 99-1-NOI-5017-(A)-(I), Ordinance Number 509, to the Town of Juno Beach's (Town) Comprehensive Plan (Comprehensive Plan) is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and as alleged in the Petition for Formal Administrative Hearing.
Findings Of Fact Patterson, Bisbee, and McLeod Petitioners, Dr. Patricia M. Patterson and James M. Bisbee, are husband and wife and have resided at 431 Olympus Drive, Town of Juno Beach, Florida, since February, 1999. Dr. Patterson is a Professor of Public Administration at the Florida Atlantic University. Prior to occupying this residence, Dr. Patterson investigated the neighborhood and wanted to reside in an ungated, single-family neighborhood. Dr. Patterson describes her neighborhood as the Ridge Area, which has a southern border of Olympus Drive or south to a new development, a western border of U.S. Highway 1 (U.S. 1), an eastern border of Ocean Drive or A1A, and a northern boundary of the Ocean View Methodist Church (Church). The linear Ridge bisects this area, running approximately north and south. See (Town's Exhibit 1A); (Petitioners' Exhibits 9A & 9B). The top of the Ridge consists predominantly of single- family residences. There is a significant increase in elevation from the U.S. 1 corridor, east to the top of the Ridge. The Patterson/Bisbee residence is located on the top of the Ridge, toward the middle of Olympus Drive. Mr. McLeod resides in a single-family residence, east and adjacent to the Patterson/Bisbee residence. There is a rental, single-family home immediately adjacent to the west of the Patterson/Bisbee residence. The lots to the west of the rental property are vacant and include the corner property (+/-.34 acre) subject to the Plan Amendment, which is at the bottom of the hill on the U.S. 1 side. Shortly after they moved into their new residence, Dr. Patterson learned from a neighbor that a Key West-style home was proposed to be built on a portion of the vacant lot. Dr. Patterson attended the Town's Land Planning Agency (LPA) April 1999, meeting and learned that there was a proposal to change a portion of the use of the vacant lot to "commercial." She learned that an application was filed on behalf of the Town's former Mayor and a former Councilman. Dr. Patterson expressed concern that the area should remain residential and not be changed to commercial. Dr. Patterson appeared at the May 1999, Town Council meeting and objected to the proposal on behalf of herself and Mr. Bisbee. Dr. Patterson also furnished the members of the Town Council with a letter dated May 17, 1999, which set forth her objections to the proposed changes. Dr. Patterson also attended part of the November 1999 Town Council meeting. Mr. Baird appeared before the LPA and the Town Council on behalf of Mr. McLeod. Dr. Patterson objects to the proposed Plan Amendment to the Town's Comprehensive Plan based on the proposed "commercial" use of the site, rather than the architectural style of the building proposed by Celestial. The Petitioners are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes, and have standing to participate as parties in this proceeding. Celestial Celestial is a partnership, which owns property and conducts a business in the Town of Juno Beach, Florida. In or around March of 1999, Celestial, the applicant, submitted an Application for an amendment to the Town of Juno Beach Comprehensive Plan. Celestial proposed to re-designate a +/-.34 acre portion (the Property) of a +/-.57 acre parcel owned by Celestial. The entire +/-.57 acre parcel is vacant property at the northeast corner of U.S. 1 and Olympus Drive. Celestial sought to amend the Town's Future Land Use Map (FLUM) from the existing "low density residential" classification to the "commercial" classification for the western or corner portion, which is approximately +/-.34 acre. Celestial proposes to build a two (2)-story structure, with a professional office with residential units on the second level. The structure would be of an architectural style that will be compatible with surrounding, existing residential developments. Celestial has standing to participate as a party in this proceeding. Section 163.3184(1)(a), Florida Statutes. The Town The Town is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. On November 17, 1999, the Town adopted Ordinance Number 509 as an amendment to the Town's Comprehensive Plan. The Town also adopted Ordinance Number 510, which rezones the Property to "commercial office." The Department The Department is the state land planning agency, having authority to administer and enforce the Act. Among other responsibilities of the Department under the Act, the Department has the responsibility to review comprehensive plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act. Section 163.3184(8), Florida Statutes. The Department reviewed the Plan Amendment and determined that it was "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes. The Town of Juno Beach, the Property, and the "Neighborhood" The Town is a small coastal community consisting of approximately 903 acres. The Town is located along the U.S. 1 corridor in Northern Palm Beach County, with municipalities, Jupiter and Tequesta to the north, and Palm Beach Gardens, North Palm Beach, Lake Park, and Riviera Beach to the south. The Town is bounded on the east by the Atlantic Ocean. The U.S. 1 corridor was the subject of a study, conducted by the Treasure Coast Regional Planning Council in 1999, which became known as "Seven Cities: Northern Palm Beach County US 1 Corridor Study." "[T]he 16-mile corridor is primarily a four-lane facility involving a mixed bag of landscape and lighting treatments, roadway designs, land uses, access management, and drainage infrastructure. Conditions in the corridor range from urban to rural, from healthy to blighted. Long range transportation plans have called for the corridor to be widened to six lanes over times, but the need for this widening has been called into question." "Juno Beach's segment of US 1 is a long expanse with a variety of situations, ranging from the semirural or naturalistic sea scrub landscape to suburban areas of shopping malls & hotels, to strategically located vacant parcels ideal for infill development. The planning team recommends that each of these areas have its own distinct planning approach for improvement over time." Several recommendations are made for the Town, including the provision of "[a] variety of uses" for the town center location at the intersection of Donald Ross Road and U.S. 1, north of the Property, "including adding 'in-town' residential options: apartments above shopfronts, rowhouses along intimate streets, live/work loft combinations and so on would complement Juno Beach other excellent housing offerings." The Study also generally encourages attractive building facades with doors and windows facing the street, as opposed to "[b]lank, windowless facades facing streets [which] are absolutely deadening to the scene for pedestrians and motorists alike." There seems to be some criticism of the existence of "halfhearted 'buffer' of landscaping between the highway and a 'sound wall,'" in the Town area, which does appear along U.S. 1, north and south of the Property. The lands contiguous to the +/-.34 acre Property, on the north and east, are designated "low density residential," on the Town's FLUM. The land to the immediate east of the subject property is vacant and owned by Celestial. See Finding of Fact 3. The land to the immediate north is developed with a single-family home. A four-lane divided highway (U.S. 1), with a 120-foot right-of-way, is located to the west of the vacant Property, and extends from the Town's southern boundary to its northern boundary. There are approximately 24,000 daily trips of traffic passing the Property on U.S. 1. The speed limit on U.S. 1 is fifty (50) miles-per-hour, a speed not consistent with low residential development. The southern and western borders of the Town consist of lands owned by Palm Beach County and maintained as conservation areas. The land immediately to the west of the Property from U.S. 1 is designated "commercial" on the Town's FLUM and is called Seminole Plaza (Seminole), a 65,400-square foot, fairly large-scale, shopping center with various commercial and professional tenants, located on approximately five (5) acres. The property west of U.S. 1, north and south of Seminole, is owned and maintained by Palm Beach County as conservation areas. A short distance south of Seminole are Florida Power and Light's Juno Beach Offices and West Offices, both of which are office developments approved for land totaling over sixty (60) acres. To the immediate south of the Property is Olympus Drive. The land across Olympus Drive, to the immediate south of the Property, is designated "low density residential," and is developed as a Planned Unit Development (P.U.D.) consisting of single-family homes. This is the "Seaside" area and is bounded on the north by a white picket fence, which does not provide access to "Seaside." Pedestrian and vehicle traffic enter the Seaside development from the east along Ocean Drive or A1A. The southeast corner of Olympus Drive and U.S. 1, which is directly across from the Property, is within Seaside. There is no residential development on the southeast corner. Rather, the corner is developed with a concrete cul-de-sac. This parcel is not eligible for residential development under the Town's zoning code. The Town presented a composite exhibit of photographs of various commercial and other non-residential uses which are interspersed in the vicinity of the Property. The photographs were overlaid onto an aerial photograph of the general area between Donald Ross Road to the north of the Property, and Juno Road, to the south of the Property. The Property is located approximately mid-point between these roads. This visual depiction of the area demonstrates the variety of the uses and structures, which have developed along this segment of the U.S. 1 corridor within the Town, as well as the impact of that highway upon the development in the vicinity of the Property. The developments, north and south of the Property, include office buildings, the Church, an automotive repair business (e.g. Goodyear), motels (e.g. Hampton Inn) and a golf course. For example, the two-story, 9,000 square foot Juno Beach Professional Office Building, is located four-tenths of a mile north of the Property, east and fronting U.S. 1, and between a duplex and a single-family house. (This house has a yellow retaining wall directly fronting U.S. 1.) The Church is directly east of the office building. There are several vacant lots south and east of U.S. 1, designated "low density residential," which are undeveloped. There is a vacant, two (2) acre, commercially-designated parcel, two-tenths of a mile to the south of the Property on the east side of U.S. 1. Compare with Findings of Fact 1-3. Amendment to the Town's Comprehensive Plan In April of 1999, Celestial filed a revised Application requesting an amendment to the Town's Comprehensive Plan, changing the FLUM classification of the Property from "low density residential" to "commercial." Among other things, Celestial advised that its Application was for a low-density project on the northeast corner of U.S. 1 and Olympus Drive. Celestial further stated that the proposed commercial (mix-use) land is compatible with the commercial uses adjacent to and across from U.S. 1 from the Property and that the residential component of the mixed-use proposal will be compatible with the residential uses to the north, east, and south of the Property. Celestial did not request a change to the Town's "commercial" FLUM designation. Several documents were attached to the Application including a vegetation survey with indicated that the Property had no environmental constraints which would prohibit its development. Other correspondence included with the Application indicate that all major utilities including telephone, electric, water, and sanitary sewer, would be provided. The described project also met the Traffic Performance Standards of Palm Beach County. Further, the Florida Department of Transportation concluded that the placing the drive on Olympus Drive would better serve the development for the convenience and safety of the proposed access. On April 19, 1999, the Town of Juno Beach Planning and Zoning Board considered the proposed Plan Amendment to the Town's Comprehensive Plan's FLUM. Mr. Peduto, Director of Planning and Zoning, reviewed the Application, coordinated the review by other governmental entities, prepared the staff report, and recommended approval of the Plan Amendment. The report describes the proposal and sets forth an analysis which included, in part, the following: The proposal meets the adequate facilities standards and is not in the Coastal High Hazard area, as defined by the Treasure Coast Regional Planning Council (TCRPC) and State of Florida. The proposed change is an appropriate classification for the subject property. The proposed project is an "infill" development, as opposed to "sprawl" development. Infill development is supported by the TCRPC Strategic Regional Policy Plan. Sprawl, which is typical through "Euclidean" planning, creates isolated uses through non-flexible zoning districts, and also through "single-use" structures. The opposite of this is more "neo-traditional" planning, which encourages multi-use structures and is more community oriented, creating more livable, healthy and sustainable communities and neighborhoods. This is why infill development becomes so important to revitalizing and recreating community in a town's neighborhoods. The Town of Juno Beach has expressed through historical efforts and its Comprehensive Plan (as well as its Zoning Code) that it envisions a sustainable community atmosphere. Mixed-use projects play an important role in this long term, committed effort. While remaining consistent with the Comprehensive Plan and Zoning Code, the subject property is an ideal location to further express this effort. The subject property is located along an "urban principal arterial" highway, within an older residential neighborhood. Just south of the subject property [across Olympus Drive] is an newer residential neighborhood [Seaside]. West of the subject property is a commercial plaza (Seminole Plaza) with various commercial uses, from office uses to restaurant, retail, service oriented, medical and private educational uses. Further east is a large public recreational area and the Juno Beach Town Center. In the general area there is an existing mixed use which functions as an important community/neighborhood element in this section of the town. As part of the revitalization process of this overall area of town, the proposed project and petition brings an element of balance between newer residential and older residential, introduces a mixed-use and creates an ideal "bridge" between the western commercial uses and eastern residential, community and recreational uses. The proposed project meets the standards set forth by the Goals, Objectives and Policies in the adopted Town of Juno Beach Comprehensive Development Plan. The report also indicated that "[t]he Comprehensive Plan directly encourages mixed-uses throughout the document," and cited to several Objectives and Policies. The report confirmed that utilities and service providers have sufficient capacity to serve the Property for a potential project within the proposed designation/classification; that there are no environmental concerns concerning the entire +/-.57 acre site including the Property (+/-.34 acre); that the existing level of service standards of the adjacent U.S. 1 will not be adversely impacted by the proposed change of land use; that water and wastewater facilities exist nearby the site and will be able to provide for appropriate services to the site; that solid waste removal services will also be provided; and that all specific drainage designs must be acceptable to the Town engineer upon submittal of any site plan. The report concluded that the Plan Amendment is consistent with the Town's Comprehensive Plan and, in part, that the proposed change is "an appropriate land use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " The Town's Planning and Zoning Board considered the Application. Numerous local residents, including Dr. Patterson and Attorney Thomas Baird representing Petitioner McLeod, opposed the Application. A motion to approve the Application to amend the Comprehensive Plan's FLUM failed with a 3 to 2 vote. Further, a motion to approve a request for a change in zoning from the existing designation of residential single-family to the designation of commercial office was not approved by a vote of 3 to 2. On or about May 12, 1999, Celestial submitted a "memorandum on proposed land use changes" to the Town, which provided a historical analysis of the development of the Town, including but not limited to changed circumstances around Olympus Drive and U.S. 1. The Town Council (Council) of the Town of Juno Beach met on May 26, 1999, to consider Ordinance Number 509 which provided the amendment vehicle to the Town's Comprehensive Plan requested by Celestial. This was the first reading and public hearing for this Ordinance. Several area residents and others were in attendance. The results were mixed with some residents speaking in favor and some against approval of Ordinance Number 509. After some discussion by the Council members, and responses from the Town planner and Celestial's representative, the Council approved Ordinance Number 509 on first reading by a vote of 4 to 1. The Council also discussed, on first reading and during a public hearing, Ordinance Number 510, which proposed to approve a rezoning request for the Property to "commercial office." Attorney Tom Baird, on behalf of Petitioner McLeod, opposed the rezoning request. Dr. Patterson also opposed the request. "Town Planner Peduto pointed out the property that was annexed into town with a residential zoning designation, surrounded on three sides by residential and rezoned to Commercial. This parcel is known as Dr. Hinman's Building, Juno Beach Professional Building. He also pointed out another parcel on U.S. 1 surrounded by residential that was given a commercial land use classification and commercial general zoning designation upon its recent annexation into the town." The minutes indicate that the Council was aware that the Planning and Zoning Board had recommended denial. The Council had before it the Town's Staff Report and Recommendation, which was previously presented to the Town's Planning and Zoning Board in substantially the same form. See, e.g., Finding of Fact 30. The Council unanimously approved Ordinance Number 510 on first reading. On or about August 5, 1999, the Town submitted numerous documents to the Department of Community Affairs, including but not limited to, the Town's Staff Report and Recommendation and proposed Ordinance Number 509. The Town requested no formal review. By letter dated September 3, 1999, the Florida Department of Transportation advised the Department that it did not recommend a formal review of the proposed amendment. By letter dated September 16, 1999, the Department of Environmental Protection offered no comments to the Department. The staff at the Treasure Coast Regional Planning Council (TCRPC) submitted a memorandum dated September 17, 1999, for the Council members. The TCRPC is required to review the Plan Amendment prior to formal adoption by the Town Council. The TCRPC stated, in part, in its evaluation: The Town indicates that the proposed amendment is consistent with the Town Comprehensive Plan. The proposed development represents infill. Mixed-use projects of the nature are intended to play an important role in the Town's efforts to create a sustainable community. The amendment is consistent with several objectives of the Town Comprehensive Plan and also with the SRPP which encourages infill development and multi-use structures. The Town indicates that the proposed development will bring a balance between newer and older residential areas and creates a good transition between commercial and residential uses. All urban services are available to the site, there are no level of service concerns, and an environmental survey indicates that there are no environmental concerns relating to development of the site. According to the TCRPC, the proposed Plan Amendment would not have adverse effects on significant regional resources or facilities. The TCRPC concluded that "[b]ased on the lack of extrajurisdictional impacts or effects on significant regional resources and facilities, [TCRPC] does not recommend that the amendment be formally reviewed." However, the [TCRPC] noted: According to the SRPP, a mix of uses on a single property is desirable. However, the first mixed-use development in an area which has previously been devoted entirely to residential use can create controversy and result in opposition from nearby property owners. According to the Town, this has been the case for the subject amendment. Some of this controversy can be avoided and property owner objections lessened by creating a very fine-grained plan. The Town's comprehensive plan contains only a single commercial FLUM category. Therefore, neighbors are understandably concerned about what the type of commercial use might occupy the subject property. During the preparation of its Evaluation and Appraisal Report, the Town should consider the preparation of a more fine-grained plan for those parts of town where the "richness" of the urban fabric is important to protect, preserve, and enhance. On September 17, 1999, the Department advised the Town of its determination that the proposed Plan Amendment should be formally reviewed for consistency. On October 26, 1999, the South Florida Water Management District advised the Department that the District had no water resources related comments regarding the Town's proposed Plan Amendment. No state, regional, or local governmental entity requested review of the Plan Amendment. On November 12, 1999, the Department advised the Town that the Department had no objection to the proposed Plan Amendment. This letter served as the Department's Objections, Recommendations, and Comments (ORC) report. On October 27, 1999, Celestial provided the Town with a Supplemental Memorandum regarding land use changes in the Town since 1990. On November 17, 1999, the Council met to consider Ordinance Numbers 509 and 510 for second reading and received a Staff Report and Recommendation, authored by Mr. Peduto, which contained similar data and analysis from the prior report. See, e.g., Finding of Fact 30. The Town's staff also prepared a report and recommendation regarding the rezoning request/petition, Ordinance Number 510. During the hearing held regarding Ordinance Number 509, the report and recommendation, with backup, and the file for both this hearing and from the previous approval hearing, were entered into the record. During the hearing, the Council was apprised, in part, that the Planning and Zoning Board had recommended denial, by a three-to-two vote, "based on traffic concerns." The minutes further reflect that "[t]he [t]own traffic consultant agrees to the traffic studies from the applicant and the County. He reviewed other areas in [t]own that similar re-zoning occurred located on a local collector, abutted by residential and located on a major thoroughfare." During the public hearing, attorney Baird, representing Petitioner McCloud, advised the Council that Ordinance Number 509 needed to be corrected in the second "WHEREAS" clause stating that the land planning agency had recommended that the Town not adopt the ordinance. "He said the primary reason (to not approve the ordinance) is that the land use classification was incompatible with the residential neighborhood." Several persons opposed the Ordinance, whereas others favored the Ordinance. The Council received numerous letters both for and against Ordinance Number 509. The Council also received petitions for and against the Ordinance. After discussing the issue, the Council approved Ordinance Number 509 by a vote of 4 to 1. The Council also considered Ordinance Number 510 and after considering information both for and against, the Council voted 5 to 0 to approve Ordinance Number 510. On November 23, 1999, the Town submitted the adopted Plan Amendment to the Department. On January 7, 2000, the Department completed its review of the adopted Plan Amendment, Ordinance Number 509, and "determined that it meets the requirements of Chapter 163, Part II, Florida Statutes (F.S.), for compliance, as defined in Subsection 163.3184(1)(b), F.S." Petitioners' Objections to the Plan Amendment Petitioners claim that the Plan Amendment, as applied to the Property, is inconsistent with and, therefore, does not further the "Goal," Objective 1, and Policy 1.3, of the FLUE of the Comprehensive Plan. Petitioners also claim that the Plan Amendment is inconsistent with and fails to comply with Rules 9J-5.005(2)(a) and 9J-5.006(4)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes. Petitioners' claim that the Town has approved the Plan Amendment, which approves a mixed-use, without any specific provision in the Comprehensive Plan for a mixed-use designation. Petitioners further claim that the Plan Amendment is not supported by sufficient data and analysis, nor is the analysis professionally acceptable. Petitioners' inconsistency and incompatibility arguments focus primarily on Petitioners' description of the relevant "neighborhood." Mr. James Fleischmann testified on behalf of Petitioners as to his definition of the relevant "neighborhood." Mr. Fleischmann and Dr. Patterson carved out the area east of U.S. 1 and west of A1A and bordered on the north by the Church and on the south by the Seaside area, designated "low density residential," as the appropriate "neighborhood." They opined that any non-residential development within this area was inconsistent with this "neighborhood." See also Findings of Fact 1-3. The "Goal" of the Town's Comprehensive Plan Future Land Use Element (FLUE) provides: A Town characterized by a community spirit that: recognizes its historical development patterns and styles; maintains its established neighborhoods in a safe, secure, beautified, and efficient manner by providing for both vehicular and pedestrian movement in, and around, town; which promotes future growth and development that is creative and enhances historical values and architectural styles that are indigenous to Juno Beach; which protects natural environmental features; and which reflects those development values by well defined neighborhoods and public areas that create an overall continuity to the Town while providing effective and efficient community services. There is no definition of "neighborhood" in the Town's Comprehensive Plan, Chapter 163, Florida Statues, or Rule 9J-5, Florida Administrative Code. Mr. Fleischmann provided his definition based upon his experience and expertise. Mr. Fleischmann did not rely on any specific portion of the Town's Comprehensive Plan in defining his view of the relevant "neighborhood." Mr. Fleischmann testified that all of his opinions concerning compatibility and internal Comprehensive Plan inconsistency in this case are based upon his definition of the relevant "neighborhood." U.S. 1 is a major, four-lane highway, which accommodates traffic at speeds, which are incompatible with a low-density residential neighborhood. It was not unreasonable for the Town to consider that the "neighborhood" area is not as limited or restricted as proposed by Mr. Fleischmann. In fact, Seminole, across U.S. 1 from the Property, actually serves the identified "neighborhood" east of U.S. 1. The data and analysis presented in this hearing, most of which was presented to the Town Council, demonstrates that the area in proximity to the Property has changed over the years, including but not limited to the expansion of U.S. 1 and the development of Seminole directly across from the Property. The weight of the evidence demonstrates that approval of the Plan Amendment will not cause the "neighborhood," as defined by Mr. Fleischmann, to be unsafe, insecure, or not beautified, nor will it impede vehicular and pedestrian movement in and around the Town. The data and analysis presented in this record do not support Petitioners' argument that the Plan Amendment is inconsistent with the "Goal." Also, the analysis was performed in a professional manner. Objective 1 of the FLUE of the Comprehensive Plan provides: To manage growth and development through the preparation, adoption, implementation, and enforcement of land development regulations which: coordinate future land uses with the appropriate topography, some of the conditions and the availability of the facilities and services; prevent, eliminate, or reduce uses inconsistent with the Land Use Goal, Future Plan, and Future Land Use Map; and which require redevelopment, renewal or renovation, where and when necessary through the establishment of standards or for density and intensity of land development. This Objective requires only the adoption of land development regulations to implement its provisions. The record is clear that the Plan Amendment, as a future land use amendment, is not a land development regulation. Petitioners also contend that the Plan Amendment is inconsistent with Policy 1.3 of the FLUE and Rule 9J- 5.006(3)(c)(2), Florida Administrative Code. See Conclusion of law 87. Policy 1.3 states: "Implementing ordinances, regulations and requirements regarding the development of land shall consider adjacent land uses and promote compatibility with those uses." Mr. Fleischmann claimed that he was unaware of any analysis of compatibility in the Staff Report and Recommendation presented to the Town Council in support of the Plan Amendment. However, Mr. Peduto, in the staff report, analyzed the relationship of the Plan Amendment to the surrounding properties, and stated, in part: "[T]he proposed project and petition bring an element of balance between newer residential, older residential and existing commercial, introduces a mixed- use and creates an ideal transition between the western commercial uses and eastern residential, community, and recreation uses." Mr. Peduto also considered the issue of compatibility and stated: "[The Plan Amendment] is an appropriate land-use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " Petitioners next contend that the Plan Amendment is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(4)(c), Florida Administrative Code, because the "commercial" FLUM land-use category is not a "mixed-use" category, does not contain a percentage mix of uses, and does not contain densities and intensities of use for all identified land uses. The Town's Comprehensive Plan has numerous future land use classifications, including a classification called "commercial." This definition provides: Land Uses and activities within land areas which are predominantly related to and used for the sale, rental, and distribution of products; the provision or performance of business, personal and professional services. However, in order to allow for mixed uses, a maximum of 75 percent of the total gross floor area on the site may be used for residential development, not to exceed a density of 22 dwelling units per gross acre. The land uses allowed in the "commercial" category include mixed uses, such as residential and commercial. These general descriptions are consistent with the requirements of Section 163.3177(6), Florida Statutes, and the definitions in Rules 9J-5.003(21)("commercial uses") and 9J- 5.003(108)("residential uses"), Florida Administrative Code. The mix of uses is established within the description of the "commercial" land use category itself. A maximum of seventy-five percent (75%) of the total gross floor area on-site may be residential, with the remainder being commercial. The residential density is also established in the definition of "commercial" for a maximum of twenty-two (22) units per gross acre. Further, it appears the intensity standard for allowable commercial uses is found in FLUE Object 1, Policy 1.13 b. of the Town's Comprehensive Plan which provides: "The Building Site Area Requirements, as established in the CG-Commercial General and CO-Commercial Office zoning districts, shall provide the basis for intensity of use and be the development criteria standards for general commercial and commercial office development, respectively, in Juno Beach." The definition of "commercial" includes, and authorizes a "mixed-use" of the Town's property, including the Property, which is the subject of the Plan Amendment. Petitioners also claim that the Plan Amendment is not supported by data and analysis as required by Rule 9J- 5.005(2)(a), Florida Administrative Code. Mr. Fleischmann opined that based upon his examination of the record as it existed on November 19, 1999, the data submitted to the Town was insufficient and the analysis not professionally acceptable. Conversely, the data available to the Town and the evidence presented at the de novo hearing, is adequate to support a finding that the Town's decision to change the land use category for the Property from "low density residential" to "commercial" is at least fairly debatable. Mr. Fleischmann's disagreement with Mr. Peduto and the Town staff's analysis of the facts is not conclusive. Mr. Fleischmann offers a different opinion, which failed to overcome the data and analysis of record in this case. Petitioners also argue that the Plan Amendment could not be approved without the Town, and the Department's, requiring an analysis of a "worst case scenario." However, Mr. Wilburn's testimony in this regard is persuasive in that this analysis is normally employed in the planning field for a FLUM amendment only in terms of analyzing the five areas that a local government is required to set level of service standards, i.e., roads, water, sewer, recreation, and open space. It is not appropriate to use a "worst case scenario" when reviewing issues of compatibility. Importantly, the record indicates that there is no issue raised in this case regarding the sufficiency of the existing or proposed level of service standards. The Town Council held two public hearings regarding the Plan Amendment, heard from the public, including Petitioners, and was presented with adequate data and analysis to reasonably conclude that the Plan Amendment was consistent with its Comprehensive Plan and the relevant statutes and rules at issue in this case. In summary, the Plan Amendment's change of the FLUM land use category for the Property is fairly debatable, particularly in light of the historical development occurring within the Town, and the changing conditions affecting the U.S. 1 corridor in the vicinity of the Property. Based upon the totality of the circumstances and factors presented in this case, the Plan Amendment is consistent with the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Town of Juno Beach's Comprehensive Plan Amendment, Ordinance Number 509, is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and rules promulgated thereunder. DONE AND ENTERED this 5th day of March, 2001, 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 5th day of March, 2001. COPIES FURNISHED: Thomas J. Baird, Esquire Thomas J. Baird, P.A. 11891 U.S. Highway One Suite 105 North Palm Beach, Florida 33408-2864 Daniel K. Corbett, Esquire 300 Mercury Road Juno Beach, Florida 33408 W. Jay Hunston, Jr. Esquire Gregory S. Kino, Esquire Boose Casey Ciklin Lubitz Martens McBane & O'Connell 515 North Flagler Drive Northbridge Center-19th Floor, Suite 190 West Palm Beach, Florida 33401-4330 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The main issue in this case is whether the Town of Marineland's Comprehensive Plan Amendments adopted by Ordinance 2005-1 on August 18, 2005,1 are "in compliance," as defined by Section 163.3194(1)(b), Florida Statutes (2005).2 Another issue is whether Petitioners have standing.3
Findings Of Fact Background The Town of Marineland is unique. Its history is not only interesting but helpful to an understanding of why the Plan Amendments may or may not be "in compliance," and also why Petitioners may or may not have standing. Marineland originated as the Marine Studios, which was created so that oceanic life would exhibit natural behavior that could be filmed for feature Hollywood films. The Marineland Attraction (Attraction) followed, and the new word "Oceanarium" was coined. The Attraction was the first marine theme park and served as the model for those that followed. The Town of Marineland was created in 1940 essentially to provide support services for the Attraction. Eventually, the Attraction's founding members died, and the property was sold to a group of St. Augustine investors, with the new entity being called Marineland, Inc. The investors looked at the property as a real estate investment, and the 1992/2005 Plan reflects this vision, calling for a community of 1500 persons and 600 dwelling units. The Town and the Attraction remained interdependent, with the Attraction being the entity that generated revenue and provided for most of the financial needs of the Town. As the face of Florida tourism changed during the 1970's and 1980's, fewer and fewer people came to Marineland, opting instead for the high profile attractions in the Orlando area. Rather than being a profit center for the investors that allowed them leisure to develop the rest of the land at their convenience, the Attraction became a money sink and required the investors to put money in each year to keep the facility going. This was an untenable situation in the long run and ultimately Marineland, Inc., sold its holdings to Marineland Ocean Resort (MOR), which split off another entity, the Marineland Foundation, to manage the Attraction. The Marineland Foundation operated under the umbrella of the Town of Marineland and not specifically as part of MOR. As this was happening, the Town of Marineland found itself having to be self-sufficient for the first time in 55 years. It needed to assume all the trappings of a municipal government and deal with matters that had previously been handled in whole or part by Marineland, Inc. During all these changes various attorneys examined different aspects of the Town's operation and found certain deficiencies. The most serious for land use planning was that the Town had not followed through after adoption of the 1992/2005 Plan and adopted any sort of land development regulations (LDRs). Simultaneously, MOR was considering how to develop the land it had bought. Its model was timeshares, and it considered turning the two oceanfront hotels into timeshare units, building an additional oceanfront timeshare hotel, selling timeshare campground slots, selling timeshare marine slips, and building timeshare units along the riverfront in the maritime hammock. Since the town had no LDRs, MOR would have had a free hand to build anything it pleased. To remedy this deficiency as quickly as possible the Town passed: Ordinance 97-1, which adopted the Flagler County development code provisions for signage, storm water and drainage, wetlands, tree protection, road construction and coastal construction; Ordinance 97-2 to adopt various standard codes relating to amusement devices, buildings, fire prevention, gas, grading, housing, mechanical, plumbing and swimming pools; and Ordinance 97-3 establishing zoning districts and providing for zoning regulations. Ordinance 97- 3 allowed for medium-density housing at four units per acre in the disturbed and cleared areas and at two units per acre in the the partially-disturbed maritime hammock. The intention was to prevent the rest of the maritime hammock, a rapidly disappearing environment throughout Florida and an environment of special concern, from being cleared for river-view timeshare units along the Intracoastal Waterway (ICW). The Town wished to balance the need to preserve important lands with the need to rebuild the town and regain lost population. It was not clear from the evidence how many units of residential development would be allowed under Ordinance 97-3, but it would be less that under the 1992/2005 Plan or under the Plan Amendments. Shortly after these ordinances were passed, MOR, which had been struggling financially and unable to realize any of its development plans, filed for bankruptcy and sale of their holdings. Its attorneys expressed great concern about the effect of the town ordinances on the pending bankruptcy and sale, and pointed out that when MOR filed, the court froze the status quo, preventing the Town from amending the 1992/2005 Plan's future land use map (FLUM) to reflect Ordinance 97-3. The Trust for Public Land (TPL) was successful in purchasing the MOR holdings from the bankruptcy proceedings. The result was a substantial reshaping of the land ownership within the Town. Approximately 90 acres of the most vulnerable lands were purchased from TPL with grant money from Florida Communities Trust (FCT)and set aside for conservation. The University of Florida's Whitney Marine Lab purchased additional land to double its holdings, and Jacoby Development, Inc. purchased about 40 acres of the disturbed lands for development. Concurrent with these activities, DCA awarded two planning grants to the Town under the Remarkable Coastal Place Program. The purpose of the grants was to enable the Town to take advantage of state experts in various aspects of community planning who could help the Town reorganize itself, recover its lost population, and rebuild itself from the ground up. It became apparent during this work that the Town would need a new comprehensive plan, not simply an update to the existing plan, in order to reflect the different structure of land ownership and to support the vision that the stakeholders had created during the planning process of a sustainable community that would be a center of science, education, recreation, and ecotourism. This was begun while state expertise was still available to the town, and once again incorporation of Ordinances 97-1, 97-2, and 97-3 into the existing comprehensive plan and FLUM was put on the back burner, since a new set of LDRs would have to be written to support the new comprehensive plan work in progress. Existing Uses The Town's existing land uses are distributed into two major categories: those found within and those found outside the River-to-Sea Preserve. The Preserve Approximately 89 acres of the total 151+ acres of the Town is off-limits to development through protection in the River-to-Sea Preserve. The River-to-Sea Preserve is undeveloped and vegetated with maritime hammock, coastal strand, beaches, dunes, and approximately eight acres of salt marsh within the Town's boundaries. The land has experienced significant disturbance in some areas. However, the majority of the site consists of native forested and non-forested vegetative communities. Lands covered with coastal scrub growth dominated by saw palmetto are located along the barrier dunes and to some extent to the west along the southern border of the Town but mostly seaward of the Coastal Construction Control Line regulated by Florida Department of Environmental Protection. This is a rapidly-disappearing community, and some sites harbor numerous endangered species. For that reason, it is one of three which has been designated by the Florida Fish and Wildlife Conservation Commission (FFWCC) as a "Rare and Unique Upland Community" within Florida. Development to the south of the Town has left these scrublands as an isolated remnant of the former community. The Preserve protects approximately seven acres of the coastal scrub community located in the Town. The Preserve protects three-fourths (32.6 acres) of the coastal hammock community located in the Town. The coastal hammock community also has been designated as a "Rare and Unique Upland Community" by the FFWCC. This community provides valuable cover and feeding areas for migratory songbirds in fall and spring as they migrate down the Atlantic Coast. Running the length of the Town along the Atlantic Ocean are 8.9 acres of beach area, an area of unconsolidated material that extends landward from the mean low water line to the primary dune system. The north and south ends of the beach are in the Preserve. Outside the Preserve Development in the Town, outside the Preserve, includes the existing Oceanarium facilities, the Whitney Lab, and the presently closed marina facility. Approximately 2.2 acres in the northeastern portion of the Town between A1A and the Atlantic Ocean contain the two original Oceanarium tanks of Marineland and has been included in The National Register of Historic Places. The Marine Park of Flagler has purchased the MOR property and intends to revitalize these areas. The Whitney Lab consists of the Whitney Laboratory for Marine Bioscience and the Marine Education Building, all operated by the University of Florida. These facilities occupy approximately 10 acres and are used for educational and research purposes. The Whitney Lab has broken ground on a new Center for Marine Studies and has plans for a Center for Marine Animal Health. The marina facility is located in the northwestern part of the Town adjacent to the ICW. It is 3.4 acres in size. The marina has been closed due to the deteriorating facilities. There is a plan to redevelop the Marina as a "Clean Marina." A smaller (0.74 acre) parcel is located adjacent to the Preserve on the west side of A1A and is the location of the Guana Tolomato Matanzas National Estuarine Research Reserve (GTMNERR) Administrative Offices, classroom, lab, and research facilities. Besides the beach, undeveloped urban lands outside the Preserve consist primarily of an approximately 47-acre, privately-owned parcel located in the center of the Town west of A1A. It is surrounded on three sides by already-developed areas within the Town. It includes approximately 10.3 acres of the Temperate Hardwood Hammock. Adjacent Lands The Flagler County/St. Johns County line passes through the northern tip of the Town so that the Town is primarily located in Flagler County. Flagler County is a fast-growing county having five incorporated municipalities. Land to the north of the Town, located in St. Johns County, consists of undeveloped coastal scrub and dune, saltwater marshes, and single-family houses along the barrier dune and in the vicinity of Summer Haven, a small unincorporated community located on the south side of the Matanzas Inlet. To the south, in Flagler County, there are large areas of coastal scrub and temperate hammock. A residential development called Matanzas Shores is being constructed. This development was permitted by Flagler County after Development of Regional Impact (DRI) review by the RPC. Immediately to the south of this development is the Washington Oaks Gardens State Park. To the west of the Town are saltwater marshes associated with Pellicer Creek, which is designated an Outstanding Florida Water (OFW), and the Matanzas River, which is part of the ICW. Pine flatwoods and temperate hammock are on the mainland shore. The Princes Place Preserve, Faver Dykes State Park, and St. Johns River Water Management District lands along Pellicer Creek serve as a 19,000-acre buffer between the ICW and the U.S. 1/I-95 corridor to the west. Two islands located in the Matanzas River estuary have been purchased through the FCT program and are owned by the Town. The southern island is located directly across from the Marineland marina on the west bank of the ICW and on the Flagler/St. Johns County boundary. The north island is on the west side of the ICW just south of the Matanzas Inlet in St. Johns County. The Florida Park Service will manage the islands. Although owned by the Town, these islands have not been annexed into the Town boundaries. It is the intent of the Town to annex these islands and incorporate them into long-term research, education and protection. Density8 On several fronts, Petitioners take issue with the density of development allowed by the Plan Amendments. They point to the designation of the Coastal High Hazard Area (CHHA), as well as data and analysis concerning erosion, topography (ground elevations), hurricane frequency and severity (or intensity), hurricane evacuation and shelter concerns, and effects on the sensitive environment of the Town and vicinity. CHHA In accordance with the law at the time, the Town's 1992/2005 Plan designated the CHHA to be seaward of the Town's coastal dune. In compliance with Rule 9J-5.012(3)(b)6., which required (and still requires) coastal management elements of plans to contain one or more specific objectives which "[d]irect population concentrations away from known or predicted coastal high-hazard areas," the Town's 1992/2005 Plan included Coastal/Conservation Element (C/CE) Objective E.1.6, which provided: Marineland shall direct population concentrations away from known or predicted high-hazard areas and shall ensure that building and development activities outside high-hazard areas are carried out in a manner which minimizes the danger to life and property from hurricanes. Development within Coastal High-Hazard Areas shall be restricted and public funding for facilities with[in] Coastal High-Hazard Areas shall be curtailed. Marineland shall provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding. In addition, the Town's 1992/2005 Plan did not allow residential (or any other) development in the designated CHHA. In 1993 the Florida Legislature amended the definition of the CHHA mean the Category 1 hurricane evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See also Rule 9J-5.003(17) (defining the CHHA to mean the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study). Rule 9J-5.002(8) requires a local government to "address" rule changes in the next cycle of amendments. Since the entire Town is in the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study, the Plan Amendments designate the entire Town as the CHHA. The Plan Amendments allow residential development west of the ocean dune in what is now the CHHA. The Plan Amendments also replace Objective E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation, which requires the Town to "ensure that building and development activities areas [sic] are carried out in a manner which minimizes the danger to life and property" and "provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding." A series of policies follow the new objective. The question under these circumstances is whether the Plan Amendments adequately address the change in CHHA definition and comply with Rule 9J-5.012(3)(b)6. As the following findings explain, it is found that they do. Petitioners contend that they do not and that the Town was required to keep the 1992/2005 C/CE Objective E.1.6, which arguably would prohibit any residential development in the Town. This also would be the result if Rule 9J- 5.012(3)(b)6. were construed to require the Town to direct all population away from the CHHA. At least some Petitioners candidly would prefer that result, and Petitioners make a seemingly half-hearted initial argument that allowing any residential development in the Town (i.e., in the CHHA) would be inappropriate and not "in compliance." But it is clear that such a result is not mandated by the statute or rules. To the contrary, DCA interprets the statutes and rules as not even requiring a re-evaluation or "down-planning" of land uses (in particular, a reduction in residential densities) allowed under an existing comprehensive plan when a local government "addresses" the change in definition of the CHHA by increasing its size. DCA has not required such a re- evaluation anywhere in the State. Rather, DCA interprets the statutes and rules to prohibit the local government from increasing density in the CHHA above the density authorized by its existing comprehensive plan. In this case, the Town not only has designated the new CHHA but also has conducted a re-evaluation and revised its comprehensive plan. Under the rather unusual circumstances here, where the CHHA covers the entire Town, changing residential densities in various parts of the Town is not significant in determining whether population concentrations are directed away from the CHHA. Rather, what is important is the total residential development allowed in the Town as a whole. The Town contends, along with DCA and Centex, that the Plan Amendments reduce residential density in the Town. Petitioners, on the other hand, contend first of all that the density allowed by the Plan Amendments cannot be compared to the 1992/2005 Plan because the existing plan did not establish residential density standards, as required by Section 163.3177(6)(a), Florida Statutes ("[e]ach future land use category must be defined in terms of uses included, and must include standards to be followed in the control and distribution of population densities"). Instead, Petitioners contend that the 1992/2005 Plan was written in terms of "vague and standardless" design criteria and a policy direction for the Town to adopt LDRs consistent with the design criteria. Primarily for that reason, Petitioners contended that the density allowed by the Plan Amendments had to be compared to the residential density established by Ordinance 97-3 to determine whether the Plan Amendments increased residential density. Regardless of the way it was written, the 1992/2005 Plan was found to be "in compliance." In addition, while the policies in the Future Land Use Element (FLUE) of the 1992/2005 Plan were written in terms of average gross acre lot sizes, maximum lot coverage, and maximum floor area ratios characteristic of design criteria, it is nonetheless possible to calculate (albeit not without difficulty and with room for minor differences in results depending on the approach taken and assumptions made) the residential density allowed under the 1992/2005 Plan. The adopted FLUM depicted the various residential land use categories, as required by Section 163.3177(6)(a)("[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series"), and a summary of the total allowable residential land uses was included in data and analysis that accompanied the 1992/2005 Plan,9 making it possible to calculate residential density. Contrary to Petitioners' argument, it is not necessary to use Ordinance 97-3 to determine the residential density allowed under the 1992/2005 Plan, and there is no other plausible reason, or any precedent, for using land development regulations in that manner. As represented in the data and analysis summary for purposes of calculating the land requirements for housing, the 1992/2005 Plan allowed a maximum of 427 residential dwelling units on 37.7 acres, including apartments above retail uses, which are not depicted on the FLUM but are allowed under Housing Element (HE) Policy C.1.1.2 to provide affordable housing. This maximum of 427 assumed 98 apartments above retail uses although more arguably would be allowed under the 1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy C.1.1.1 allowed "out-buildings" as "ancillary structures to the rear of lots containing single family dwellings." Like the apartments over retail, these dwelling units are not depicted on the FLUM but are allowed as of right and theoretically could result in 176 additional dwelling units on a total of 37.6 acres. To arrive at the residential density allowed under the 1992/2005 Plan, DCA's expert added 12 of the approximately 12-20 dwelling units not shown in the summary but mentioned in the data and analysis of the 1992/2005 Plan as being either existing or allowed on the Whitney Lab's 5.4 acres, bringing the total theoretical maximum under the 1992/2005 Plan to 615 residential units on 43 of the Town's 151 acres, at various densities ranging from 2.2 units per acre at the Whitney Lab to 28.8 units per acre for apartments above retail uses, for an average residential density of 14.3 units per acre.10 Centex's expert took a different tack. First, for the apartments over retail uses, he assumed two units per retail use, for a total of 198 units (while also pointing out that there was no cap on these units in the 1992/2005 Plan). Second, he did not include any units for the Whitney Lab because they were not grounded in Plan policies. Using this approach, he arrived at a total of 704 residential units allowed under the 1992/2005 Plan. While he maintained the validity of that calculation, he pointed out that eliminating the units (both residential units and associated "out- buildings") allowed on land now included in the River-to-Sea Preserve would lower the total to 611 units. The Town's expert did not count apartments above retail uses or the units at the Whitney Lab and arrived at a total of approximately 421-425 dwelling units allowed under the 1992/2005 Plan. When he eliminated the units (residential units with associated "out-buildings") allowed on land now included in the River-to-Sea Preserve, he decreased his total to 275 units. The reason for the differences in his calculation was not clear from the record. Turning to the Plan Amendments, although more typical residential density standards are used, the experts still disagree on exactly what residential density the Plan Amendments allow and achieve. Most development under the Plan Amendments will occur in the Sustainable Mixed Use (SMU) future land use category, which allows a maximum of 241 residential units, a maximum of 50,000 square feet of commercial uses, and accessory residential units for affordable housing. Centex's expert determined that, under the Plan Amendments, the maximum theoretical number of dwelling units that could be developed in the Town, including the SMU category, is 565 units. It is not reasonable to conclude that 565 dwelling units would actually be developed, because this number includes 241 affordable accessory units, one for each residential unit. However, the Town concluded there is only a need for 39 such units. Centex's expert found that 13 of the 39 affordable housing units needed in the Town will be provided in FLUM categories other than SMU--namely, Institution Research (the Whitney Lab) and Conservation. It is more reasonable to expect that only the remaining 26 accessory units needed to address affordable housing will be developed in the SMU category to meet the 39-unit affordable housing need, instead of 241, and that 350 units actually will be built under the Plan Amendments. In his analysis, DCA's expert did not count any affordable housing units in the SMU category in reaching the conclusion that a 315 residential units are allowed under the Plan Amendments. Adding the theoretical maximum of 241, his total maximum theoretical number of residential units would be 553. The record is not clear as to why his numbers differ somewhat from the Centex expert's. The Town's expert somehow arrived at the conclusion that the Plan Amendments allow a total of 279 residential units. Like the DCA expert, he apparently did not count affordable housing units in the SMU category. The reason for other differences in his calculation are not clear from the record. It may be that he did not count residential units in the Tourist/Commercial category, while the others counted 35 units because there is a possibility that 35 condominium units could be developed there instead of 70 hotel rooms. Differences may also involve how he assessed and counted the possibility for residential units in the Institutional Research and Conservation categories. Despite these computational differences, it is clear that the Plan Amendments allow fewer residential units in the Town than the 1992/2005 Plan did, even assuming no residential development under the 1992/2005 Plan in what became the River- to-Sea Preserve. The density allowed under the Plan Amendments is comparable to densities authorized by comprehensive plans north and south of the Town, as well as the actual development that has occurred and is occurring in those areas. Since the entire Town is within the new CHHA, the Plan Amendments can be said to result in a reduction in population concentration within the CHHA by comparison to the 1992/2005 Plan. This also is reflected in the population projections on which the two plans were based. The 1992/2005 Plan was based on a projected total 2005 population of 1,551 people, including 900 permanent and 651 seasonal. The Plan Amendments are based on a projected 2015 population of 630, including 386 permanent residents and 244 seasonal residents and university students living in dormitories at the Whitney Lab. While reluctantly conceding that some residential growth in the Town (i.e., in the CHHA) is appropriate, Petitioners contend that growth must be limited to what is allowed under Ordinance 97-3 because any more growth than that would increase residential density in the CHHA. They argue that Ordinance 97-3 should be the benchmark because the 1992/2005 Plan did not establish residential density but instead relied on Ordinance 97-3 to do so. However, as reflected above, this argument was not supported by the evidence. Under the unusual circumstances of this case, while the Plan Amendments do not include an objective that parrots the words in Rule 9J-5.012(3)(b)6.--"[d]irect population concentrations away from known or predicted coastal high- hazard areas"--they do have goals, objectives, and policies which do so, as well adequately address the new CHHA definition. Data and Analysis Under the proposed findings in the section of their PRO entitled "Data and Analysis," Petitioners argue that there was a: "Failure to prove need for proposed density." The basis for the argument appears to be that: "[n]o professional methodology was utilized"; that the Town's population estimate was based on the "desires of the stakeholders," i.e., the "property owner investors"; and that the "desire of the stakeholders was for 'approximately 241 dwelling units,' not the at least 565 dwelling units authorized by the Amendments." Petitioners' PRO, at ¶61. But Petitioners did not prove that no professional methodology was used or that the population estimate was based solely on the "desires of the stakeholders." In addition, while the Plan Amendments state that the visioning effort undertaken by the Town for developing the Town's Master Plan under Florida's Remarkable Coastal Place program identified "approximately 241 dwelling units . . . as a target for meeting the permanent residential population of the Town," it also stated that "approximately 315 dwelling units were identified as a target for meeting the sustainability goal of the Town." Joint Exhibit 2, pp. A-14, C-11. Finally, there is no requirement that data and analysis "prove need for proposed density," but only that they support allocations of land for various uses. See § 163.3177(6)(a), Fla. Stat. ("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"). Accommodating need for affordable housing on the same land allocated for other residential and commercial development does not run afoul of this data and analysis requirement. See Fla. Admin. Code R. 9J-5.006(2)(c). No witness for Petitioners opined that the population projection for the Plan Amendments was not supported by data and analysis. To the contrary, several witnesses for the other parties opined that the data and analyses supporting the Plan Amendments were surprisingly comprehensive for a local government the size of the Town and were more than adequate. Land Use Suitability Petitioners' PRO contends: "The data and analysis concerning Town erosion, the low elevation of the Town, increased hurricane frequency and severity, inadequacy of hurricane evacuation time and shelter capacity, the adverse impacts of the land use designations on shellfish beds, estuarine nursery areas, the Tropical Hardwood Hammock, the designation of domestic waste water treatment and discharge facilities in the River to Sea Preserve, and water pollution resulting from foreseeable flooding establishes that the density of the Amendments is unsuitable for the Town land." Petitioners' PRO, ¶63. Erosion and Elevation It is clear that the Town of Marineland, due to its location and low elevation (generally 5-6 feet NGVD west of A1A), has been, is, and will continue to be vulnerable to beach erosion and flood damage from a major hurricane. Several hundred years ago, there was a navigable tidal pass north of the Town. The pass closed naturally through sand and sediment accretion but in recent years the area has been suffering significant erosion, resulting in State Road A1A having to be rerouted and access to homes along the old A1A being severely limited. In 1999, when Hurricane Floyd was 100-150 miles east of the Town in the Atlantic Ocean, significant erosion occurred within the Town, including the waters and sand of the Atlantic Ocean overtopping A1A in the north end of the Town, along with flooding the Town. As a result, the Town was a declared a disaster zone, and FEMA awarded two separate redevelopment grants. The Town's shoreline has been critically eroded, but is stable at this time. Notwithstanding these characteristics of the Town, which contribute to its designation as a CHHA, and as previously discussed, the evidence is clear that the Town is not considered unsuitable for development. To the contrary, the development allowed by the Plan Amendments is considered acceptable. Petitioners also cite evidence that sea level is expected by some to rise approximately 20 inches in the next 100 years. But no qualified witness opined that, for planning purposes, the Town should be considered unsuitable for development for that reason. Hurricane Frequency and Intensity Petitioners also contend that the Town is unsuitable for development in light of data and analysis concerning hurricane frequency and intensity. Indeed, there is persuasive evidence that hurricane frequency and intensity is cyclical and that in about 1995 a period of heightened hurricane frequency and intensity that usually lasts 10-20 years probably began. The evidence was clear that DCA does not consider the frequency and intensity of hurricanes to be relevant data and analysis in evaluating whether comprehensive plan development density and intensity are "in compliance." Rather, this is considered to be a matter to be addressed by the Legislature. So far, there has been no legislation to either further enlarge the CHHA or further restrict development in the CHHA.11 Hurricane Evacuation and Shelter Study Petitioners allege that the Town did not undertake adequate hurricane evacuation planning in connection with the Plan Amendments. Specifically, their PRO cites Section 163.3178(2)(d), Florida Statutes, which requires a comprehensive plan's coastal management element to include: "A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster." They also cite Rule 9J-5.012(2), which addresses the requirement that the coastal element be based on the following data and analysis, among others: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. They point out that Rule 9J-5.003(57) defines Hurricane Vulnerability Zone (HVZ) as "the areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and that it also requires the HVZ to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." Finally, they cite Rule 9J- 5.012(3)(b)7., which requires one or more specific Coastal Element objectives which: “Maintain or reduce hurricane evacuation times.” The evidence was that these planning requirements were met. There are no mandatory state, regional, or local evacuation clearance times. The 1992/2005 Plan included C/CE Objective E.1.5., which provided: "The time period required to complete the evacuation of people from flooding of vulnerable coastal areas prior to the arrival of sustained gale force winds shall be maintained at less than 12 hours." The Plan Amendments replaced that objective with C/CE E.1.5., which now provides: "Evacuation clearance time should be maintained or reduced to less than 12 hours." This complies with Rule 9J-5.012(3)(b)7. The Plan Amendments were based on appropriate data and analysis. Because the entire Town is in the CHHA, the Town population must evacuate in a Category 1 and all higher storm categories. Evacuation routes for the Town are S.R. A1A north to S.R. 206 in St. Johns County, and S.R. A1A south to Palm Coast Parkway in Flagler County. The best and most current evidence, based on a 2005 update to the RPC's 1998 Regional Hurricane Evacuation Study, indicates that evacuation clearance times for St. Johns County are estimated to be 11 hours for Category 1 hurricanes, 14 for Category 2 hurricanes, 16 hours for Category 3 hurricanes, and 16.75 hours for Category 4 through 5 hurricanes; evacuation clearance times for Flagler County are estimated to be 7.75 hours for Category 1 and 2 hurricanes and 12 hours for Category 3 through 5 hurricanes. The Flagler clearance times are lower than those estimated in a 1998 version of the study, even though based on a higher population, primarily because the widening of the Palm Coast Parkway to four-lanes has been completed. The evidence does not demonstrate that the evacuation clearance times in St. Johns County increased under the 2005 Study. Clearance times are based on the worst bottleneck in a county, where traffic is metered to derive the actual clearance times. Evacuation of Town residents under the Plan Amendments will not impact the bottlenecks in either St. Johns County or Flagler County. For that reason, evacuation of Town population would be expected to be take less time than the clearance times calculated for those counties in the RPC's 2005 study; conversely, evacuation of Town residents under the Plan Amendments will have no effect on the overall clearance times in either St. Johns County or Flagler County. Assuming a maximum additional population (resulting from the addition of 829 dwelling units) under the Plan Amendments, 652 cars would be added to an evacuation during high tourist occupancy season (which includes the summer tourist season, which generally corresponds to hurricane season). This would increase traffic during the worst theoretical hour of the Town's evacuation (i.e., during which 30 percent of the Town's traffic would try to enter the evacuation road network) by 8.7 percent heading north from the Town on A1A and by 13 percent heading south of the Town on A1A. Based on a comparison of maximum theoretical densities under the 1992/2005 Plan and under the Plan Amendments, the number of evacuating vehicles added to the road network is reduced under the Plan Amendments. By comparison, assuming a maximum additional population (resulting from the addition of 565 dwelling units) under the 1992/2005 Plan, 922 cars would be added to an evacuation during high tourist occupancy season. This would increase traffic during the worst theoretical hour of the Town's evacuation by 12.3 percent heading north from the Town on A1A and by 18.4 percent heading south of the Town on A1A. Likewise, based on a comparison of maximum densities under the 1992/2005 Plan and the Plan Amendments, the Plan Amendments result in a reduced demand for shelter space. Obviously, since the entire Town is in the CHHA and must evacuate in a Category 1 and all higher storm categories, there is no requirement for the Town itself to provide hurricane shelter. Similar to most Florida counties, St. Johns and Flagler Counties have deficits in shelter space that are expected to increase as the population increases. According to DCA's Division of Emergency Management (DEM), in 2004 Flagler County had hurricane shelter spaces for 4,267 persons and a deficiency of 2,401 shelter spaces. This deficiency is expected to almost double (be 4,020) by 2008. According to DCA's DEM, in 2004 St. Johns County had hurricane shelter capacity for 7,320 persons, and a hurricane shelter demand of 9,829 people, resulting in a deficiency of 2,509 spaces. In 2009, the St. Johns County shelter demand is projected to be 11,564, “leaving an anticipated shelter deficit of 4,244.” However, the evidence was not clear that the shelters to which Town residents would be assigned are either over capacity or under capacity. In addition, it was not clear that future development would not include the construction of facilities that may serve as shelters. Finally, there was no clear evidence why these anticipated shelter deficits should restrict development in either county, or in the Town, so as to make the Plan Amendments not "in compliance." Natural Resources Petitioners contend that the Plan Amendments are not "in compliance" because of effects on various natural resources in the Town and vicinity, including shellfish harvesting areas, important estuarine nursery for juvenile fish and invertebrates, and the Town's high-quality oak hammock area (also referred to as a maritime hammock, a coastal temperate hammock, or a tropical hardwood hammock.) Petitioners' main argument regarding adverse effects on shellfish harvesting and nursery areas was that flooding during hurricane events will cause household chemicals and other pollutants stored inappropriately at ground level to be released into the environment, probably at a time when juvenile fish are present in the estuarine nursery areas. But there also was persuasive evidence that chemicals released during these kinds of flood events would be substantially diluted by the massive volume of water associated with them, which would greatly reduces any deleterious effects on nursery and shellfish areas. Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan Amendments, the Town has chosen to impose OFW standards that substantially exceed those that would otherwise be imposed by the St. Johns River Water Management District. OFW standards prohibit degradation of water below ambient conditions and typically require the design of stormwater systems that provide 1.5 times the level of treatment that otherwise would be provided for stormwater. There was evidence that shellfish harvesting has declined in the waters of the GTMNEER to the north of the Town over the recent past as the land near these waters has been developed. The evidence was not comprehensive as to the reason(s) for the decline, but poorer water quality generally is thought to be the primary cause. Some shellfish harvesting areas still are productive, including some near the Town where Mr. Cubbedge has an oyster and clam lease. Petitioners presented no testimony related to the temperate hardwood hammock. Centex's expert in environmental analysis observed that portions of the hammock areas have been altered or disturbed and that the higher-quality areas have been placed in the River-to-Sea Preserve where they are protected from development. Much of the natural vegetative communities in the Town are within the Conservation future land use category and not subject to development. To protect 10.3 acres of oak hammock located on land that is subject to development, the Plan Amendments impose a Maritime Hammock Overlay. In addition to otherwise applicable density and intensity standards, development within the Overlay is subject to numerous restrictions on adverse impacts on natural vegetation. Amendment FLUE Policies A.1.8.3. and A.1.8.4. allow only 50 percent of single-family and multi- family parcels to be cleared of trees, understory, and groundcover, and only 25 percent of the tree canopy to be removed. Petitioners also argue that the designation of the "Public Facilities" future land use category in the River-to- Sea Preserve in Amendment Policy A.1.4.2 is unsupported by data and analysis and "fairs [sic] to show the extend [sic] of the category as required by Section 163.3177(6)(a), Fla. Stat., and it does not estimate the gross acreage of the category as required by Rule 9J-5.006(2)(c)." Actually, the statute cited requires the FLUE to designate the "extent of the uses of land," and the rule requires an "analysis of the amount of land needed to accommodate the projected population, including: . . . 2. The estimated gross acreage needed by category . . . ." There was no testimony or other adequate evidence to support these arguments, and it was not proven that the Plan Amendments are not "in compliance" for any of these reasons. Conclusion It was not proven that data and analysis concerning the above matters establish that the density of the Plan Amendments is unsuitable for the Town land. Meaningful and Predictable Standards Similar to the Amended Petition and Petitioners' Statement of Position in the Prehearing Stipulation, Petitioners' PRO lists numerous objectives and policies in the Plan Amendments and contends that they are not "in compliance" because they do not provide meaningful and predictable standards. One expert called by Petitioners (Ms. Owen) testified in general that the Plan Amendments contain objectives and policies "which do not contain meaningful and predictable standards" or "that are not measurable or provide any standards or specificity." (T. 359). She also initially testified that the Plan Amendments (at her request) incorporated into data and analysis OFW water quality standards for discharges into the ICW but that "their goals, objectives and policies, as drafted, do not provide specific enough standards to be able to measure that"; later, she conceded that C/CE Policy E.3.5 incorporated OFW water quality standards. Another expert for Petitioners (Mr. Johnson) testified, "I think there's not enough detail in these policies and standards by which somebody could measurably allow growth to occur and measurably predict that it's not going to have an effect, a negative effect, on the environment." Otherwise, Petitioners put on no expert testimony to explain why the objectives and policies in the Plan Amendments do not provide meaningful or predictable standards, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." Another expert for Centex (Dr. Dennis) testified specifically that incorporation of the OFW standards in the C/CE and other goals, objectives, and policies were adequate to protect the waters of the ICW and its natural resources and the River-to- Sea Preserve even with the development allowed by the Plan Amendments. Rule 9J-5.005(6) provides in pertinent part: "Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. This chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency." Rule 9J-5.003 sets out definitions, including: (52) "Goal" means the long-term end toward which programs or activities are ultimately directed. (82) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress toward a goal. (90) "Policy" means the way in which programs and activities are conducted to achieve an identified goal. Properly understood, these Rules require that an objective's "intermediate end" be specific and measurable in the sense that it can be determined when the "intermediate end" is reached. They do not mean that objectives must eliminate all possibility ambiguity or be amenable to quantitative measurement. They only require that objectives provide "meaningful guidance" and be enforceable in that sense. All of the objectives and policies listed by Petitioners have been reviewed. The evidence does not prove beyond fair debate that any of the listed objectives and policies are inconsistent with the cited Rule provisions, properly understood. Petitioners complain that several of the listed objectives and policies require the adoption of LDRs without including meaningful and predictable standards. In some cases, the objectives and policies themselves provide meaningful and predictable standards. But it is not necessary for comprehensive standards to be included in each such objective or policy. Rather, when required, meaningful and predictable standards to guide the LDR adoption process can be placed elsewhere in the comprehensive plan, as is often the case with the Plan Amendments. (In addition, not all plan directions to adopt LDRs are required by statutory and rule mandatory criteria, and it is possible that all of them may not be required to include meaningful and predictable standards if superfluous.) As they did elsewhere in their PRO, Petitioners contend that FLUE Policy A.1.4.2 does not "state what is the areal extent of the 'Public Facilities' land use category as required by Section 163.3177(6)(a), Fla. Stat. or estimate the gross acreage of the 'Public Facilities' land use category as required by Rule 9J-5.006(2)(c)." They also characterize the alleged failing as a lack of meaningful and predictable standards. But as previously mentioned, the Plan Amendments are not inconsistent with that statute and rule. See Finding 73, supra. Petitioners also argue that a listed objective and several listed policies fail to provide meaningful and predictable standards because they do not contain a percentage distribution of mixed uses.12 Actually, these are two different issues. As already indicated, it was not proven beyond fair debate that the objectives and policies fail to provide meaningful and predictable standards. As for the separate issue of percentage distribution of mixed uses, Rule 9J-5.006(4)(c) provides: Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use. (Emphasis added.) Petitioners put on no expert testimony to explain why the objective and policies in the Plan Amendments do not meet the requirements of this Rule, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, as already mentioned, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." On the evidence presented, it was not proven beyond fair debate that the Plan Amendments do not contain policies with "[an]other objective measurement" of the distribution among the mix of uses in the SMU, General Commercial, and Tourist Commercial land use categories established in FLUE Policy A.1.4.2. H. Petitioners' Other Issues The Amended Petition and Prehearing Stipulation raised other issues that were not included in Petitioners' PRO. Some of these were addressed in the parts of Centex's PRO, which the Town and DCA joined, including financial feasibility, planning timeframes, and deletion of a policy requiring habitats of listed species to be designated Conservation. To the extent that these other issues have not been abandoned by Petitioners, it is found that they were not proven. Petitioners' Standing All of the Petitioners submitted oral or written comments, recommendations, or objections to the Town during the period of time beginning with the transmittal hearing for the Plan Amendments on March 31, 2005, and ending with their adoption on August 18, 2006. None of the Petitioners own property or reside in the Town or own real property abutting real property in the Town. The Hamilton Brothers Brothers George William (Bill) Hamilton, III, and Patrick S. Hamilton live in Crescent Beach, which is four to five miles north of the Town in St. Johns County. Together (along with their wives), they own and operate Homecomers, Inc., which does business as Southern Realty of St. Augustine and Crescent Beach (Southern Realty), and as Southern Horticulture, which is located in Crescent Beach or St. Augustine (the evidence was not clear which). Patrick operates the real estate brokerage, which has offices in St. Augustine and in Crescent Beach, and Bill operates the retail garden and landscaping business. The brothers also own part of Coastal Outdoor Center, which is located in Crescent Beach at S.R. 206 and features kayak tours of the Matanzas River, mostly south to Pellicer Creek. The Hamilton family also has oyster and clam leases in St. Johns County. It appears that the vast majority of the brothers' business activities are conducted in St. Johns County north of the Town. However, over the years, some limited business has been conducted in the Town. In 1993 Patrick Hamilton twice brokered the sale of land from Marineland, Inc., one parcel to an private individual and the other to the Whitney Lab. In 1995 he procured a contract for the sale of Marineland, Inc. (and, with it, essentially the entire Town) for a fish farm operation for approximately $10 million; when the contract was breached, Southern Realty got part of the forfeited $100,000 binder. In 1998 Hamilton was authorized by MOR to sell its holdings in the Town for a ten percent commission. Hamilton was successful in efforts to arrange for it to be purchased by FCT and the Trust for Public Lands (TPL) through the bankruptcy court in Jacksonville, and some of the land was immediately resold at a profit to Mr. Jacoby. When Hamilton pursued payment of Southern Realty's brokerage commission through the bankruptcy court, he learned that TPL had indemnified MOR for the brokerage commission. At that point, Southern agreed to accept an $18,000 fee from TPL and drop its bankruptcy claim for ten percent on the overall purchase. In 2002, Hamilton paid for and prepared grant applications for the Town's purchase of two islands that were outside the Town's municipal boundaries but which the Town intends to annex. In September 2004 he wrote an offer on behalf of a trustee of the Whitney Lab to purchase a small parcel of land TPL still owned in the Town and donate it to the Lab. However, no contract was reached, and Southern Realty received no commission. In 2005 Phil Cubbedge asked Hamilton to represent him in the sale of his oyster and clam lease to Centex but then backed out when Centex proposed to deal directly with Cubbedge without Southern Realty's involvement. Southern Horticulture used to do business with the Marineland Attraction but has not done any business in the Town in nine years, since the Attraction went into receivership and did not pay a Southern Horticulture bill in full. The Town never has required the Hamiltons or their businesses to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 Southern Realty applied and paid for and obtained an occupational license to "engage in the business of real estate." This was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. On several occasions over the years, the Hamilton brothers have engaged in various civic activities pertaining to the Town. Most of these activities have been Patrick's. These have included: participation on the management advisory group for the GTMNERR and efforts in the early to mid-1990s to have its Administrative Office established in the Town; efforts in 2000 or 2001 related to the designation of A1A as a scenic highway in St. Johns County, with a segment being in the Town; subsequent work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County; advocacy related to the St. Johns County Comprehensive Plan; service on the Board of Trustees of the Whitney Lab; and financial contributions to and fund-raising for the Whitney Lab. The brothers do these things out of a sense of civic duty and for the good of the community and their vision for it. However, they also believe these activities provide a benefit for their business, particularly the real estate and outfitting businesses. It is found, based primarily on the activities of Southern Realty, that the Hamilton brothers own or operate a business within the Town. Florida Wildlife Federation FWF is a not-for-profit Florida corporation with approximately 50,000 members and supporters. No FWF members reside or own property in the Town, and FWF does not have an office in the Town. One member (Mr. Cubbedge) has an oyster and clam lease in the Town. Cubbedge, the Hamilton brothers, and Dr. Michael Greenberg, who works and has his office at the Whitney Lab in the Town, are the only members who have a connection to the Town, according to the evidence. In April 2004, FWF established a regional office in St. Johns County outside the Town for the primary purpose of reviewing comprehensive plan amendments, focusing on natural resource protection. FWF monitors growth management and habitat protection during the development stages of the Town, focusing on the draft of the goals, objectives and policies for the comprehensive plan. In furtherance of this effort, FWF’s planning advocate (Ms. Owen) has attended and participated in meetings of the Remarkable Coastal Place work group stakeholder meetings, where they reviewed drafts of comprehensive plan amendments; has talked with elected officials to educate them on FWF (and FOM) concerns; and has attended meetings of and made presentations to the South Anastasia Community Association, a civic organization that holds its meetings in the Town. Through the Post Office and its website, FWF publishes a newsletter with information about FWF’s activities in the state, including fundraising. No evidence was presented that the newsletter is distributed in the Town. FWF’s regional office held a fundraiser in St. Augustine in February 2006 to raise money to pay attorney’s fees and expert witness fees for this proceeding. The Town never has required FWF to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 FWF applied and paid for and obtained an occupational license "to engage in the business of monitoring growth management and habitat protection." As with Southern Realty, this was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. Based on the evidence, it is found that FWF owns or operates a business within the Town. Friends of Matanzas FOM is a not-for-profit Florida corporation established in 2001 to preserve and protect the estuary and its watershed, and to maintain the rural beach community, particularly on South Anastasia Island and in southern St. Johns County to Marineland. FOM has 34-44 members. No FOM members reside in the Town, but at least two of them--its current president, Dr. Greenberg, and Maureen Welsh--work at the Whitney Lab. The Hamilton brothers also are members. FOM itself does not have an office in the Town. However, Dr. Greenberg is its president, and he may keep some FOM records and documents in his office at the Whitney Lab. There was no evidence that FOM ever has had a Town occupational license, or that the Town ever has required it to have one. In part (if not primarily) through the activities of the Hamilton brothers, FOM has been involved in: efforts in the mid-1990s to have the Administrative Office of GTMNERR established in the Town; efforts, including production of a video in 2000 or 2001, related to the designation of A1A in St. Johns County, including within the Town, as a scenic highway; and work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County, including within the Town. There also was evidence that FOM holds annual meetings in the Town. Based on the evidence, it is found that FOM does not own or operate a business within the Town.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006.
Conclusions Having considered the entire record in this cause, it is concluded that petitioner has satisfied all requirements in Subsection 190.005(1)(e), Florida Statutes (1989). More specifically, it is concluded that all statements contained within the petition have been found to be true and correct, the creation of a district is consistent with applicable elements or portions of the state comprehensive plan and the Lee County comprehensive plan currently in force, the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district, the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities, and the land that will be served by the district is amenable to separate special- district government. Respectively submitted this 7th day of May, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. Appendix A (Names and Address of Witnesses) Bryon R. Koste, 801 Laurel Oak Drive, Suite 500, Naples, Florida 33963 Thomas R. Peek, 3200 Bailey Lane at Airport Road North, Naples, Florida 33942 Gary L. Moyer, 10300 N.W. 11th Manor, Coral Springs, Florida 33071 Dr. Lance deHaven-Smith, Florida Atlantic University, 220 S.E. 2nd Avenue, Fort Lauderdale, Florida 33301 Samuel R. Crouch, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 David E. Crawford, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 Dr. James E. Pitts, College of Business, Florida State University, Tallahassee, Florida 32306 William Spikowski, Lee County Community Development Department, 1831 Hendry Street, Fort Myers, Florida 33901 Gary L. Beardsley, 2396 13th Street North, Naples, Florida Richard Huxtable, 4741 Spring Creek Road, Bonita Springs, Florida 33923 Larry Sullivan, 4778 Tahiti Village, 4501 Spring Creek Road, Bonita Springs, Florida 33923 Lee Menzies, Business Development Corporation of Southwest Florida, corner of Summerlin and College Parkway, Fort Myers, Florida Donna Buhl, 4501 Spring Creek Road, Box 91, Bonita Springs, Florida 33923 Ruth Norman, 24578 Redfish Street, S.W., Bonita Springs, Florida 33923 James Pepper, P. O. Box 1260, Bonita Springs, Florida 33923 (Names and addresses of persons filing written statements) Eugene S. Boyd, 5225 Serenity Cove, Bokeelia, Florida 33922 Edward S. Zajchowski, 4501 Spring Creek Road, Box 178, Bonita Springs, Florida 33923 Winifred M. Wheeler, 24593 Dolphin Street, S.W., Bonita Springs, Florida 33923 James W. Campbell, 4501 Spring Creek Road, Box 131, Bonita Springs, Florida 33923 Dorothy Jean Kendrick, 300 Haral Street, Sturgis, Michigan 49091 Exhibit A Appendix B (List of Documentary Evidence) Location map Local boundary map outlining district Map of district and surrounding areas Collier County Comprehensive Future Land Use Map Exhibit B Pelican's Nest PUD 1b Ridgewood RPD 1c Palmetto Bay RPD 1d Pelican's Nest RPD 1e Summary of status of permits Proposed development agreement Statement by Crawford concerning DRI Exhibit C Petition filed by Westinghouse Bayside Communities, Inc. Location map Metes and bounds legal description of district Consent to establishment of district Map of existing major trunk water mains, sewer interceptors or outfalls Proposed time tables and cost estimates Future land use portion of Lee County Comprehensive plan Economic impact statement Exhibit D Supplement to metes and bounds description in petition Specific description of all real property within district Exhibit E Photocopy of $15,000 processing check sent to County Letter transmitting petition to Commission Secretary Exhibit F Letter transmitting petition to Division of Administrative Hearings Exhibit G Notice of Publication in Florida Administrative Weekly on March 8, 1991 Affidavit for Fort Myers News-Press publication, March 11, 1991 Affidavit for Fort Myers News-Press publication, March 18, 1991 Affidavit for Fort Myers News-Press publication, March 25, 1991 Affidavit for Fort Myers News-Press publication, April 1, 1991 Exhibit H Lee County Comprehensive Plan Documentation of plan status Exhibit I Chapter 187, Florida Statutes Exhibit J Letter of March 14, 1991 from Secretary of Department Community Affairs to Commission Secretary Exhibit K White Paper by Dr. Lance deHaven-Smith Supplemental Exhibits Prefiled testimony of Bryon G. Koste Prefiled testimony of Samuel R. Crouch 3A Letter from Samuel R. Crouch to Jim Pepper 3B Letter from Samuel R. Crouch to Lloyd Read Prefiled testimony of Gary L. Moyer Prefiled testimony of David E. Crawford Prefiled testimony of Thomas R. Peek Prefiled testimony of Dr. Lance deHaven-Smith Intevenors Exhibit 1 - Letter of Edward S. Zajchowski COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, FL 32399-0001 Kenza Van Assenderp, Esquire P. O. Box 1833 Tallahassee, FL 32302-1833 Judith A. Workman, Esquire 408 Old Trail Road Sanibel, FL 33957 Marianne Kantor, Esquire Asst. County Attorney Lee County Courthouse 1700 Monroe Street Fort Myers, FL 33901 David M. Maloney, Esquire Office of the Governor The Capitol, Room 309 Tallahassee, FL 32399-0001
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of September, 2019.
