Findings Of Fact At times relevant Respondent has held license number LS0001999 issued by the Florida Board of Land Surveyors and Mappers. His license is as a land surveyor and mapper. Respondent held an active license from December 31, 1973 through March 9, 1995. On the latter date Respondent's license became delinquent "Due to Non- Renewal." The license remained in a delinquent status at the time of hearing. In this case the Florida Board of Professional Surveyors and Mappers under authority set forth in Chapter 472, Florida Statutes, seeks to impose administrative discipline against Respondent. On April 24, 1991 Respondent provided John W. Smith a signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. In November 19, 1991 Respondent provided John W. Smith with a revised signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. Robert Waers is licensed as a land surveyor in Florida. As such he is an expert in land surveying. He reviewed the subject boundary survey drawings prepared by Respondent. The purpose for that review was to identify whether Respondent had complied with minimum technical standards for land surveying when preparing the survey drawings. As Mr. Waers established, a boundary survey is a procedure by which the surveyor identifies the property lines of a parcel of property as described by a legal description. The process also involves the identification of rights associated with that parcel as it exists on the ground with relation to the legal description. In Mr. Wares' expert opinion as a land surveyor Respondent failed to meet minimal standards or the standard of care within the surveying community when preparing the survey drawings at issue. Basically Mr. Wares established that the survey drawings were not complete, defensible, adequate and accurate. As Mr. Wares established, the survey drawings in depicting the outer boundaries on the parcel would lead one to believe that they coincide with the legal description for the parcel. This circumstance would purport to establish that the dimensions on the ground are precisely the same as those described in the legal description. However, the legal description does not form a closed geometric figure. When the geometry of the legal description is computed it does not return to the point of beginning. It misses that point by nine tenths of a foot. Consequently, it would be impossible to show the same measurements on the ground on the survey drawing as would be found in the legal description and accurately portray the situation on the ground. There would be differences between the survey drawing on the ground as physically measured and what is written in the legal description. Respondent has failed to note those differences through a comparison between measurements on the ground and those measurements in the legal description and the recordation of the difference. To properly perform the comparison Respondent would need to reflect the distances measured on the ground and the record distance found with both sets of measurements noted on the survey drawings, which he did not do. In both surveys in question the field data does not support the survey drawings. They are incomplete. They are so disorganized as to make many of the matters contained in the field notes indiscernible. For that reason Mr. Waers, as an expert, was unable to recreate the information in the field data as a means to determine the correct position of the boundaries in the survey drawing. Nor can the field data be relied upon as a means to compute a closed traverse of the parcel, referring to geometry relative to a closed traverse by use of the field notes. In the April, 1991 survey Respondent incorrectly located a residence. The survey drawings did not adequately nor accurately depict the nature or geometry of the fixed improvement. While the dimensions of the fixed improvement are sufficiently detailed, the position of the improvement related to the boundary line for the property is not acceptable in the April, 1991 survey. The April, 1991 survey drawings indicate dimensions of 13.8 feet and 15.7 feet at the northerly and southerly ends of the residence, whereas the November, 1991 survey drawings describes those dimensions as 10.65 and 9.8 feet respectively. As Mr. Waers described a monument is a marker on the ground at boundary corners for the property or along boundary lines. Its purpose is to assist in better establishing the location of a boundary line. The monuments are physical objects. In the event that the monument location and the boundary lines do not coincide, the expectation is that the surveyor will describe that conflict in the survey drawings by comparison. In this case, conflicts existed between boundary lines and monuments and they were not shown on the April and November, 1991 survey drawings. In both the April, 1991 and November, 1991 survey drawings Respondent included legends or notes describing abbreviations and their complete meaning such as R/W for right of way and CH for cord. However, in those drawings, Respondent used the initials RLS, CONC and FR, terms not commonly known by the public, without describing the full meaning of those initials in a legend or note. All matters which have been discussed were observed by Mr. Waers and in his opinion, which is accepted, constitute the failure to comply with minimal technical standards for surveying when examining the survey drawings from April, 1991 and November, 1991 prepared by Respondent. Furthermore, Mr. Wares's opinion that Respondent failed to use due care in performing the surveys is accepted. As established by Mr. Waers, Respondent should have gone to the field and collected sufficient data, made sufficient measurements as to accurately position the residence on the property and to show property lines in all instances that might affect property rights as a means to allow the land owner to make additions to the house without encroaching upon his neighbors property. To perform the survey properly Respondent should have made notes and comparisons between the legal description in the record and the physical boundaries found on the parcel.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered finding the Respondent in violation of Counts I and V with the exception of part (e) to those counts and part (f) to Count V; in violation of Count II but not Count VI; in violation of Counts III and VII; in violation of Counts IV and VIII; and, absolving him of any violation alleged in Count IX. As a penalty, a $1,000 fine should be imposed, with a ninety day suspension should Respondent attempt to reactivate his license. DONE and ENTERED this 15th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1996. APPENDIX CASE NO. 95-5375 The following discussion is given concerning Petitioner's proposed findings of fact: Paragraphs 1 and 2 are subordinate to facts found. Paragraphs 3 and 4 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 5 is subordinate to facts found. Paragraph 6 is not sufficient in itself to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 7 is rejected in its suggestion that proof was sufficient to demonstrate that the civil action pertained to the survey performed by Respondent for Mr. Smith. Paragraphs 8 through 18 are subordinate to facts found as is the first phrase in Paragraph 19. The remaining phrases in Paragraph 19 and Paragraph 20 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 21 is subordinate to facts found. Paragraphs 22 through 27 are not sufficient in themselves to support findings of fact. See Section 120.58 Florida Statutes. Paragraphs 28 through 44 are subordinate to facts found. Paragraphs 45 through 47 are not sufficient in themselves to support a finding of fact concerning reporting fixed interior improvements. See Section 120.58 Florida Statutes. Paragraphs 48 through 50 are subordinate to facts found. Paragraphs 51 and 52 are rejected in the suggestion that proof was made sufficient to demonstrate that the court case which judgement was obtained was proven to be a case related to the survey performed by Respondent for Mr. Smith. Paragraph 53 is subordinate to facts found. COPIES FURNISHED: Miriam Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald F. Mowrey, Jr. 312 Iola Street Port St. Joe, Florida 32456 Donald F. Mowrey, Jr. Post Office Box 838 Port St. Joe, Florida 32456-0838 Angel Gonzalez, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the City of Miami's small scale development amendment adopted by Ordinance No. 12550 on June 24, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On December 31, 2003, Intervenor submitted an application to the City for an amendment to the FLUM which would change the land use designation on a 7.91-acre tract of property from Industrial and General Commercial to Restricted Commercial. The property is located at 1818 and 1844 Northwest North River Drive, Miami, and is situated on the north side of the Miami River. It is bordered by Northwest North River Drive to the north, the Miami River to the south, and a recently renovated condominium development known as Serenity to the east. At one time (the specific date is unknown), the property was used as a boat repair facility and commercial marina. The property is currently unused. The application was submitted concurrently with an application for a zoning change in connection with Intervenor's intent to develop a mixed use project on the property. The applications were reviewed by the City's Planning and Zoning Department (Planning Department). The Planning Department recommended that the applications be approved. In doing so, it determined that the land use change furthers the objectives of the Plan, and that the land use pattern in the neighborhood should be changed. On April 7, 2004, the City Planning Advisory Board voted 4-3 in favor of recommending approval of the application. However, that vote constituted a denial due to the failure to obtain five favorable votes. Both the FLUM and zoning applications were initially presented for first reading to the City Commission (Commission) on April 22, 2004. At that meeting, the Commission voted to approve both applications. The applications were again presented to the Commission on June 24, 2004. At that time, Balbino's application for a major use special permit was also presented to the Commission. After consideration, the Commission adopted Ordinance No. 12550, which amended the FLUM by changing the land use designation on the property, as requested by Intervenor. (It also granted the rezoning request and approved the issuance of a major use special permit.) The Ordinance was signed by the City's Mayor on July 7, 2004. Because the amendment is a small scale development amendment under Section 163.3187(1)(c), Florida Statutes, it was not reviewed by the Department. See § 163.3187(3)(a), Fla. Stat. On August 5, 2004, Petitioners filed their Petition challenging the FLUM amendment generally alleging that the amendment involved a use of more than ten acres and therefore was not a small scale development amendment, that the amendment was internally inconsistent with other provisions in the City's Plan, and that the amendment was not supported by adequate data and analysis. After an intervening appeal to the Third District Court of Appeal, which involved the timeliness of their Petition, on March 1, 2006, Petitioners filed their Amended Petition which added additional grounds for finding the amendment not in compliance. On August 17, 2006, Intervenor, who is the contract owner of the property, petitioned to intervene in this proceeding. That request was granted on August 18, 2004. The Parties Durham Park is a non-profit corporation comprised of approximately ninety homeowners who reside within the Durham Park area. It lies on the south side of the Miami River across from Balbino's property. According to its president, Horacio Aguirre, every homeowner is automatically a member of the association but no dues are assessed. A list of members is not maintained. At the hearing, Mr. Aguirre acknowledged that the association is not engaged in any business and does not own any property. Although its corporate purpose is not of record, the association occasionally meets to discuss issues that "impact the neighborhood," including the amendment being challenged here. No minutes of meetings are kept. Once, in September 2003, the association published a newsletter. Mr. Aguirre appeared before the City Commission on behalf of Durham Park and offered comments in opposition to the plan amendment. Ann Stetser resides in a ten-story condominium at 1700 Northwest North River Drive, which is on the north side of the River and just east of the subject property. The Serenity condominium development lies between her condominium and Intervenor's property. Ms. Stetser offered oral or written comments to the City regarding the small scale amendment. Therefore, she is an affected person and has standing to bring this challenge. Mr. Payne resides in the City of Davie in Broward County but owns and operates a tug boat company known as Towing and Transportation, which is located in the Lower River portion of the Miami River. Mr. Payne submitted timely comments to the City regarding the small scale amendment and thus is an affected person with standing to bring this action. Miami River Marine Group, Inc. is a private, non- profit trade association comprised of approximately fifty-five members, each of which is a private business. Its mission "is to protect the working river." The executive director of the association, Fran Bohnsack, appeared before the City Commission on behalf of the association and offered comments in opposition to the proposed amendment. The parties agree that Miami River Marine Group, Inc. is an affected person and has standing to participate. The City is a political subdivision of the State of Florida. It initially adopted the Plan in 1989. The Plan has been amended from time to time. Balbino is the contract purchaser of the subject property. Balbino submitted comments concerning the amendment to the City at its meeting on June 24, 2004, and is an affected person with standing to participate in this proceeding. Relevant Provisions of the Plan The section of the Plan entitled "Interpretation of the Future Land Use Plan Map" describes the various land use categories in the Plan. See Joint Exhibit 2, pages 13-16. It describes the Industrial land use category as follows: Industrial: The areas designated as "Industrial" allow manufacturing, assembly and storage activities. The "Industrial" designation generally includes activities that would otherwise generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact unless properly controlled. Stockyards, rendering works, smelting and refining plants and similar activities are excluded. Residential uses are not permitted in the "Industrial" designation, except for rescue missions, and live-aboards in commercial marinas. The section also describes the "General Commercial" land use classification as follows: General Commercial: Areas designated as "General Commercial" allow all activities included in the "Office" and the "Restricted Commercial" designations, as well as wholesaling and distribution activities that generally serve the needs of other businesses; generally require on and off loading facilities; and benefit from close proximity to industrial areas. These commercial activities include retailing of second hand items, automotive repair services, new and used vehicle sales, parking lots and garages, heavy equipment sales and service, building material sales and storage, wholesaling, warehousing, distribution and transport related services, light manufacturing and assembly and other activities whose scale of operation and land use impacts are similar to those uses described above. Multifamily residential structures of a density equal to R-3 or higher, but not to exceed a maximum of 150 units per acre, are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents. This category also allows commercial marinas and living quarters on vessels for transients. Finally, the section describes the "Restricted Commercial" land use category as follows: Restricted Commercial: Areas designated as "Restricted Commercial" allow residential uses (except rescue missions) to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions; any activity included in the "Office" designation as well as commercial activities that generally serve the daily retailing and service needs of the public, typically requiring easy access by personal auto, and often located along arterial or collector roadways, which include: general retailing, personal and professional services, real estate, banking and other financial services, restaurants, saloons and cafes, general entertainment facilities, private clubs and recreation facilities, major sports and exhibition or entertainment facilities and other commercial activities whose scale and land use impacts are similar in nature to those uses described above, places of worship, primary and secondary schools. This category also includes commercial marinas and living quarters on vessels as permissible. The Plan is based on a pyramid structure. See Joint Exhibit 2, Interpretation of the Future Land Use Plan Map, page 13, paragraph 4. That is, each land use classification permits all land uses within previously listed categories, except as otherwise specifically provided in the Plan. Therefore, with the exception of residential uses, all uses permitted under the Restricted Commercial designation are permitted under the Industrial classification. The Restricted Commercial category is a logical designation for the property because of its proximity to residential neighborhoods. Those residential properties would clearly be more detrimentally affected by industrial activities that may generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact, which are now authorized under the Industrial designation. The Miami River The Miami River runs northwest to southeast for more than five miles from the Miami International Airport to Biscayne Bay (the mouth of the River). For planning purposes, it includes three sections: the Upper River, the Middle River, and the Lower River. Although the demarcations of those sections are in dispute, the best evidence of the appropriate demarcations of the three sections is found in the Miami River Master Plan (Master Plan), which was adopted by the City in 1992. See Joint Exhibit 1. The Master Plan clearly depicts the geographic scope of the Mid-River (or Middle River) as extending west to Northwest 27th Avenue and the Up River (or Upper River) as being that portion of the Miami River lying west of Northwest 27th Avenue. Based on these demarcations, the Lower River would run from the mouth of the Miami River to the 5th Street Bridge, the Middle River from the 5th Street Bridge to Northwest 27th Avenue, and the Upper River from Northwest 27th Avenue westward. It is undisputed that Intervenor's property is located on the Middle River. The parties agree that Restricted Commercial is a reasonable land use designation for the Middle River. Petitioners' expert witness also agreed that the Middle River "is supposed to be a mix of residential." In its discussion of the Middle River, the Master Plan provides: The Mid-River area contains most of the existing housing located along the Miami River. The wide variety of dwelling types, ranging from single family homes to high- rise apartment/condominium buildings, are mostly occupied by middle-income households. This is an important segment of the population for the City to retain in order to support the local economy and tax base. A number of opportunities remain for development of new housing by building on vacant lots or by increasing the density of existing developed lots. New housing construction should be encouraged, except on lands reserved for water dependent uses. In the proposed SD-4.1 waterfront commercial zoning district (See page 1.14) residential development could be permitted as an accessory use to a marina. The property is located within the referenced proposed SD-4.1 waterfront commercial zoning district. According to the Master Plan, the strategy for the Middle River is to "[b]ring the neighborhoods back to the river." The Master Plan further provides that "[d]iverse residential neighborhoods interspersed with commercial districts make the Mid-River unusual. The strategy is to develop centers of activities at strategic locations that will become gateways to the river and give identity to the neighborhoods." In contrast, the Master Plan describes the Up-River as "a working river." It also notes that "[m]arine industries in the Up-River area create a busy, economically vital district that is important to preserve. The challenge is to protect these industries from displacement by non-water-dependent uses and to nurture growth in marine industries without negatively impacting nearby residential neighborhoods." In describing the Upper River, the Master Plan provides: The character of the river changes dramatically west of NW 27th Avenue bridge. In fact, it is not really the river there; it is the man-made Miami Canal (and the Tamiami Canal branching off to the west). In contrast to the gently curving paths and irregular edges of the natural river, the canal banks are rigidly straight and significantly closer together at 90 feet. The most striking difference in the up-river area is the change in land use. The Miami Canal is almost entirely industrial in character, with commercial shipping being the predominant use. Most of the larger cargo vessels on the Miami River are loaded and unloaded in this area, resulting in an incredibly busy, narrow river channel. Due to the industrial nature of the up-river corridor, many of the urban design recommendations made for the mid-river and downtown areas are not applicable. The emphasis in this area should be to promote growth in shipping and related industries and to provide adequate roadways for the vehicles and trucks associated with these businesses. Allapattah The property is located in a community development target area known as Allapattah. Community development target areas are neighborhoods to which the City directs community block grants for revitalization. In need of revitalization, Allapattah has deteriorated over time and is one of the poorest neighborhoods in the City. Allapattah has been designated as a neighborhood development zone, a designation used in connection with community development programs. Also within the Allapattah neighborhood, and less than one mile from the subject property, is an area known as the Civic Center. The Civic Center includes Jackson Hospital, Cedars Hospital, the Justice Building, the County Jail, and government offices. More than 25,000 persons work in the Civic Center area. The area continues to expand. Urban Infill Area It is undisputed that the property is located within an urban infill area. Among the purposes of an urban infill designation are the promotion of the efficient use of infrastructure, including transportation and the prevention of urban sprawl. The Civic Center area is a major transportation hub and includes a metro rail station that is located approximately a five-minute drive from the property. The property is also served by several bus routes. As to urban sprawl, the amendment will fulfill a need for housing for persons who work in the Civic Center area. By doing so, the amendment is also expected to promote job creation. The Size of the Parcel Petitioners first contend that the parcel actually comprises 10.41 acres and therefore exceeds the threshold size (ten acres or fewer) for small scale development amendments. Petitioners point out that the approved companion rezoning and special permit encompasses 10.41 acres, while the application for the FLUM amendment is for 7.91 acres. Petitioners argue that the total area encompassed by the rezoning and special permit applications is the correct number to use in determining the actual size of the parcel. The application for the FLUM amendment included a site drawing on which the surveyor certified that the "NET TOTAL LOT AREA" of the property is 7.91 acres. This acreage includes upland and submerged lands and comprises all of the land under Intervenor's ownership and/or control. (Slightly more than one- half of the 7.91 acres is upland property, while the remainder is submerged land in the Miami River where Balbino will construct a marina.) The site drawing also includes areas adjacent to the property (from the boundaries of the property to the centerline of the adjacent rights-of-way and the centerline of the Miami River) and the surveyor's calculation of the sizes of those areas. The sum of the acreage of those areas and of the property is referred to as the "gross total lot area." To determine the size of the property for a future land use map amendment, for at least the last twenty-two years the City has employed the "net lot area" concept. Under that concept, defined in the City's Zoning Ordinance, an applicant may only seek a future land use map amendment with respect to property under its ownership or control, and the only property on which a land use classification is changed as a result of such an application is that which is within the ownership or control of the applicant. Approval of an application for a future land use map amendment does not result in a change in land use classification for lands not within the ownership or control of an applicant, such as a public right-of-way. Petitioners seek to contravene the City's longstanding use of net lot area in determining the size of property subject to a future land use map amendment by contending that it is the gross lot area that should be considered in determining the size of the property subject to the FLUM amendment. By doing so, however, they are improperly attempting to apply a zoning concept to the City's Plan process. More specifically, the concept of "gross total lot area" is relevant only for use in a mathematical calculation of "floor area ratio." Floor area ratio is a mathematical calculation pursuant to which the City determines the square footage of buildings that may be built on a particular piece of property. The City's Zoning Ordinance permits a property owner to include portions of the acreage of adjacent rights-of-way, bays, parks, or other open spaces in the floor area calculation. The floor area calculation will not be affected by the FLUM amendment. The City's net lot area approach is the correct methodology to be used in determining the size of the parcel. Therefore, the map amendment involves or uses only 7.91 acres and was properly considered by the City as a small scale development amendment. Consistency of the Amendment with the Plan At the hearing, Petitioners failed to present any evidence bearing on the consistency (or lack thereof) of the amendment with the following Plan objectives and policies: LU- 1.2.3, LU-1.3.1, HO-1.1, HO-1.2, SS-1.4, SS-2.1, SS-2.2, SS-2.5, SW-1.1, SS-2.1, SS-2.5, SW-1.1, PR-1.1, PR-1.4, CM-1.1, CM-2.1, CM-4.2, NR-1.1, NR-1.2, NR-3.2, and CI-1.3. Accordingly, Petitioners' challenge to the amendment based upon alleged inconsistencies with these objectives and policies must fail. Remaining for consideration are allegations that the amendment is inconsistent with Goal LU-1, Policy LU-1.3.6, and Objectives LU-1.2, LU-1.3, LU-1.6, SS-2.2, PW-1.2, TR-1.1, PA- 3.3, CM-3.1, CM-4.1, NR-1.3, NR-2.1, and CI-1.4. Goal LU-1 in the Plan's Future Land Use Element (FLUE) provides that a goal of the Plan shall be to: Maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city; (4) fosters the growth and development of downtown as a regional center of domestic and international commerce, culture and entertainment; (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's significant natural and coastal resources. The property is surrounded by residential neighborhoods. By eliminating the potential for development on the property of industrial uses that may generate "excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact," the amendment will enhance the quality of life in those surrounding neighborhoods. The Allapatah neighborhood, in which the property is located, is a declining area. The amendment is therefore consistent with subpart (2) of Goal LU-1, which is concerned with the redevelopment and revitalization of declining areas. Petitioners have also alleged that the amendment is inconsistent with subpart (3) of the Goal because it will negatively impact marine industrial uses along the Miami River. However, no persuasive evidence to support this contention was offered. Subpart (4) is not relevant to this case because it pertains to the downtown area and the property is not located in that part of the City. As to subpart (5), Petitioners offered no evidence that the amendment is inconsistent with the concept of the promotion of the efficient use of land. On the other hand, the evidence shows that the amendment will minimize land use conflicts by placing a land use classification on the property that is consistent with adjacent residential areas. Petitioners failed to offer any evidence that the amendment is inconsistent with subpart (6), which pertains to the protection and conservation of natural and coastal resources. FLUE Objective LU-1.2 provides that one of the objectives of the Plan is to: Promote the redevelopment and revitalization of blighted, declining or threatened residential, commercial and industrial areas. Because the property is in the Allapatah neighborhood, which is a declining residential area, the amendment will promote redevelopment and revitalization of that area and is therefore consistent with the Objective. FLUE Objective LU-1.3 provides as follows: The City will continue to encourage commercial, office and industrial development within existing commercial, office and industrial areas; increase the utilization and enhance the physical character and appearance of existing buildings; and concentrate new commercial and industrial activity in areas where the capacity of existing public facilities can meet or exceed the minimum standards for Level of Service (LOS) adopted in the Capital Improvement Element (CIE). The concurrency analysis performed by the City shows that approval of the amendment will not result in a failure of existing public facilities to meet or exceed applicable LOS minimum standards. At the same time, the new Restricted Commercial land use category permits the types of land uses that Objective LU- 1.3 seeks to encourage, namely, commercial and office uses. FLUE Policy LU-1.3.6 provides: The City will continue to encourage a diversification in the mix of industrial and commercial activities and tenants through comprehensive marketing and promotion efforts so that the local economy is buffered from national and international cycles. Particular emphasis is on, but not limited to, Southeast Overtown/Park West, Latin quarter, Little Haiti, Little River Industrial District, River Corridor, the Garment District and the Omni area. In considering the amendment, the City gave particular significance to the fact that the Restricted Commercial designation would allow greater flexibility in the development of the property. Such greater flexibility is consistent with the promotion of a diversification in the mix of industrial and commercial activities. The mix of uses permitted under the Restricted Commercial land use classification will promote urban infill and serve to prevent urban sprawl. As such, the amendment is consistent with Policy LU-1.3.6. FLUE Objective LU-1.6 provides as follows: Regulate the development or redevelopment of real property within the City to ensure consistency with the goals, objectives and policies of the Comprehensive Plan. This Objective (and its underlying policies) is not relevant because it pertains specifically to land development regulations. Even so, there was no evidence to show that the amendment is inconsistent with the Objective. Potable Water Element Objective PW-1.2 and Natural Resource Conservation Objective R-2.1 are identical and provide as follows: Ensure adequate levels of safe potable water are available to meet the needs of the City. Petitioners presented no evidence that the amendment is inconsistent with either Objective. Rather, they asserted that in evaluating the amendment application, the City failed to do an independent analysis to address the availability of potable water. (The City relied on information provided by Metro-Dade County.) The City's concurrency analysis revealed that potable water supplies will be available to the City even after the amendment becomes effective. Petitioners also failed to provide any evidence that the potable water usage under the Restricted Commercial classification would exceed that which may occur under the Industrial land use classification. Further, Petitioners failed to provide any evidence that there is a potable water deficiency in the City, or that the amendment would cause one. Finally, there was no evidence that the reliance on information provided by other local governments was unreasonable. Transportation Element Objective TR-1.1 provides as follows: All arterial and collector roadways under County and State jurisdiction that lie within the City's boundaries will operate at levels of service established by the respective agency. All other City streets will operate at levels of service that are consistent with an urban center possessing an extensive urban public transit system and characterized by compact development and moderate-to-high residential densities and land use densities, and within a transportation concurrency exception area (TCEA). The City will monitor the levels of service of all arterial and collector roadways to continue to develop and enhance transportation strategies that promote transit and minimize the impacts of the TCEA. Petitioners contend that the concurrency analysis performed by the City assumed that an unreasonably high percentage of persons accessing the property would use a form of transportation other than an automobile. However, Petitioners' expert conceded that he had no expertise in traffic analysis, and that the City's analysis was performed by persons who did. Because the challenge is based on criticism that is not supported by credible expert testimony, the assertion must necessarily fail. Coastal Management Element Objective CM-3.1 provides as follows: Allow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami. Florida Administrative Code Rule 9J-5.003(137) defines "water-dependent uses" as "activities which can be carried out only on, in or adjacent to water areas because the use requires access to the water body for water-borne transportation including ports or marinas; recreation; electrical generating facilities; or water supply." Witness Payne, who is a tug boat captain, stated that the United States Coast Guard requires vessels over five hundred gross tons to "leave the port, seek shelter" in the event of a hurricane and that Intervenor's property is a destination for boats seeking shelter from a hurricane. Because the land use on the property is Industrial, there is no requirement that a marina or any other water-related facility be located on the property as an available site for boats seeking shelter from a hurricane, even in the absence of the amendment. In addition, the Restricted Commercial land use category permits commercial marinas; therefore, the amendment in no way prevents the property from serving as a destination for boats over five hundred gross tons seeking shelter. Finally, because the property can already be developed in such a manner that it would be used by large numbers of persons (e.g., offices and malls), there is no basis upon which to conclude that the amendment will have any impact on the potential for loss of human life and destruction of property by hurricanes. Natural Resources Element NR-1.3 provides as follows: Maintain and enhance the status of native species of fauna and flora. Although the parties agree that there are manatees in the Miami River, Petitioners failed to provide any evidence identifying locations along the Miami River where such manatees are found, or any evidence that the amendment would have any impact on those manatees. It is fair to conclude that by eliminating the potential for development that might include such uses that involve noise, fumes, smoke, and hazardous wastes, this will enhance the status of native species of flora and fauna. Capital Improvements Element Objective CI-1.4 provides as follows: Ensure that public capital expenditure within the coastal zone does not encourage private development that is subject to significant risk of storm damage. Contrary to Petitioners' assertion, this Objective does not provide that the City should discourage development in the coastal zone. For example, there are other areas of substantial development within the coastal zone, such as Brickell Avenue. The amendment does not trigger the expenditure of public funds for capital improvements. This is clearly demonstrated by a comparison of development permitted under the Industrial and Restricted Commercial land use classifications. Due to the intensity of development allowed under either land use classification, there is no basis upon which to conclude any development under the Restricted Commercial land use classification will require any greater infrastructure expenditures than development under the Industrial land use classification. Based on the foregoing, it is fairly debatable that the map amendment is internally consistent with other provisions of the Plan. Data and analysis Petitioners contend that the amendment "is not based on the best available, professional acceptable, existing data," as required by Florida Administrative Code Rule 9J-5.005 and Section 163.3177, Florida Statutes. However, they failed to offer any evidence that the City failed to consider any relevant data in existence at the time the amendment was adopted, or that the City failed to appropriately react to that data. The preponderance of the evidence supports a finding that the City had sufficient data and analysis available at the time the amendment was adopted to justify its approval. For example, the staff considered data provided by Balbino in its application package; data (such as potable water and wastewater transmission capacities) supplied by Metro-Dade County; the Miami River Master Plan; maps; the target area plans for Allapattah; the current Plan, including the extensive data and analysis supporting the Plan found in Volume II; and other related information, including support by citizen groups from the Allapattah area. In response to that data, among other things, the staff performed a concurrency management analysis concerning the availability of public facilities and levels of service (although actual levels of service cannot be determined until the City knows what is going to be built on the site), and it performed a land use study focusing on the area around the subject property and the compatibility of uses in the area with the new land use designation. A summary of the staff's efforts are found in a fact sheet and analysis package which accompanied the amendment. One of Petitioners' primary criticisms on this issue is that the City relied upon Metro-Dade County to provide certain data pertaining to concurrency matters (traffic and potable water). However, Petitioners failed to prove that this data was insufficient to support the adoption of the amendment or that it was unreasonable to rely on that information. Moreover, at least with respect to traffic, small scale amendments are exempt from the requirement that plan amendment applications be accompanied by a traffic concurrency study. Petitioners also contend that the City ignored certain data which shows that the amendment disrupts the existing land use pattern supporting water-dependent uses. As noted above, however, the City performed an extensive land use study to consider, among other things, these very concerns and concluded that the new land use designation is compatible with adjacent properties and consistent with the Plan. It is fairly debatable that the challenged plan amendment is supported by professionally acceptable data and analysis, and that the City reacted to that data and analysis in an appropriate manner. The Port of Miami River Petitioners also argue that the Port of Miami River Sub-Element must be considered in determining whether the amendment is in compliance. This Sub-Element is found within the Plan's Ports, Aviation and Related Facilities Element. It is an optional element not required under Chapter 163, Florida Statutes. The Plan defines the Port of Miami River as: Simply a legal name used to identify some 14 independent, privately-owned small shipping companies located along the Miami River, and is not a "port facility" within the usual meaning of the term. The identification of the shipping concerns as the "Port of Miami River" was made in 1986 for the sole purpose of satisfying a U.S. Coast Guard regulation governing bilge pump outs. The private shipping companies identified as comprising the Port of Miami River are listed in Volume II of the Plan. The location of each of those companies is also shown. See Joint Exhibit 3, Section VIII, page 35. An updated list is found in the City's Evaluation and Appraisal Report. (A few companies are located outside the City's boundaries in unincorporated Dade County.) None are located on 18th Avenue, where the subject property is found. Over the years, the City has consistently interpreted this Sub-Element as applying only to properties that are listed in Volume II of the Plan. Because Intervenor's property is not included within the definition of the Port of Miami River, in reviewing the application, the City adhered to its long-standing interpretation that the Sub-Element was not applicable or relevant to the analysis of the amendment's consistency with the Plan. See Monkus, supra at 33- 34. Under the majority opinion in Payne II, however, the Sub-Element appears to be relevant and is "intended to apply to the 'uses along the banks of the Miami River", and not just to specific companies named in the definition.3 Even so, only Objective PA-3.3 would require consideration.4 That objective reads as follows: The City of Miami shall coordinate its Port of Miami River planning activities with those of ports facilities and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami. Petitioners failed to present any evidence concerning a lack of coordination activities relative to the FLUM amendment. Coordination does not mean that adjacent local governments or other interested persons have veto power over the City's ability to enact plan amendments. City of West Palm Beach et al. v. Department of Community Affairs et al., 2005 Fla. ENV LEXIS 191 at *34, DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM (DOAH July 18, 2005, DCA Oct. 21, 2005). Rather, the City needs only take into consideration input from interested persons. Id. at *35. The City established that pursuant to its Resolution No. 00-320, before any resolution, ordinance, or issue affecting the Miami River is considered, the City Manager is required to inform the Miami River Commission (MRC) of that impending matter. The MRC serves as a clearinghouse for all interests of the Miami River, including residential, economic, and industrial interests, as well as the other entities listed in the Objective. See §§ 163.06 et seq., Fla. Stat. The evidence shows that the MRC was notified before the amendment was considered, and that it provided a recommendation to the Commission. At the same time, Petitioners, their expert witness (Mr. Luft), and other interested persons were also given an opportunity to provide input into the process before the amendment was adopted. Therefore, the requirements of the Objective and Sub-Element have been met. Other Issues Finally, in their Proposed Findings of Fact and Conclusions of Law, Petitioners contend that "[t]he FLUM amendment renders the Port of Miami River Sub-Element (goals, objectives, and policies) vague, ambiguous, permissive, and without measurable and predictable standards." They also assert that the amendment "is an over-allocation of residential land use and is not economically feasible." Because these issues were not specifically raised in the Amended Petition or the parties' Pre-Hearing Stipulation, to the extent they are not otherwise discussed above, they have been waived. Even if the issues had been adequately pled, there is insufficient evidence to support these claims.
Conclusions For Petitioners: Andrew W. J. Dickman, Esquire Law Offices of Andrew Dickman, P.A. Post Office Box 771390 Naples, Florida 34107-1390 For Respondent: Rafael Suarez-Rivas, Esquire Assistant City Attorney 444 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130-1910 For Intervenor: Paul R. Lipton, Esquire Pamela A. DeBooth, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131-3224 David C. Ashburn, Esquire Greenberg Traurig, P.A. Post Office Box 1838 Tallahassee, Florida 32302-1838
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the small scale development plan amendment adopted by Ordinance No. 2055.1 is in compliance. DONE AND ENTERED this 16th day of May, 2006, in Tallahassee, Leon County, Florida. S DONALD R ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2006.
Findings Of Fact Background Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan). The Plan is compiled in the first volume of a three- volume set. The remaining volumes contain data and analysis (Original Data and Analysis). The Department of Community Affairs (DCA) determined that the Plan was not in compliance with the Act. DCA filed a petition challenging the Plan under Section 163.3184(10), which commenced DOAH Case No. 89-1843GM. Pursuant to a settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan amendments and revised the Original Data and Analysis. These amendments to the Plan shall be referred to as the Plan Amendments. The Plan Amendments are contained in a three-volume set. The first volume contains Plan Amendments and data and analysis concerning traffic. The second volume contains Plan Amendments and data and analysis concerning the future land use map series, which includes two maps forming the 2010 overlay. The third volume contains Plan Amendments and data and analysis involving general matters. The Plan, as amended by the Plan Amendments, shall be referred to as the Amended Plan. The additional data and analysis submitted by Lee County in September, 1990, shall be referred to as the Revised Data and Analysis. The Original Data and Analysis and Revised Data and Analysis shall collectively be referred to as the Data and Analysis. On or about October 29, 1990, DCA published a notice of intent to find the Plan Amendments in compliance. Petitioner Brenda Sheridan, who is a resident of Lee County, had previously submitted oral or written objections during the review and adoption proceedings concerning the Plan Amendments. On or about November 17, 1990, Petitioner commenced the above-styled case by filing with DCA a petition alleging that the Plan Amendments and Revised Data and Analysis are not in compliance with the Act and Chapter 9J-5, Florida Administrative Code (collectively referred to as the growth management law). Wildlife Habitats and Vegetative Communities (Issues 2 and 6) As to Issue 2, the Revised Data and Analysis contain limited data or analysis pertaining to wildlife habitat and vegetative communities. Much of the data and analysis concerning wildlife habitats and vegetative communities are in the Original Data and Analysis and were unchanged by the Revised Data and Analysis. The Revised Data and Analysis inventory only certain habitats or vegetative communities and analyze the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon only certain unique wildlife habitats. The habitats or communities so considered are only those used by wood storks, Florida panthers, and black bears. The Revised Data and Analysis state: The only documented wood stork rookery in Lee County is on Telegraph Creek. In the past 3 years, no nesting has occurred there. It is possible that they exist in the Flint Pen Strand, adjacent to the Corkscrew Swamp Sanctuary. Corkscrew includes a well-known wood stork rookery. Wood stork productivity is highly variable as a result of annual rainfall amounts which accumulate in South Florida. Flight paths . . . associated with that rookery cross into feeding locations within Lee County. These movements are primarily dependent on food availability. Tall structures placed in this flight path could affect the wood storks. The first monitoring report concerning the impact of WEVU's new broadcast tower on wood storks has been submitted. Every day during breeding season a biological intern has inspected the 60-acre tower site for injured wood storks. No injuries or fatalities were found. Feeding areas of the Corkscrew Swamp colony have been documented in Lee, Collier, and Hendry Counties. Southeastern Lee County provides important forage areas for this colony; occasionally saltwater habitats are also used. These food sources are essential to the success of wood stork reproduction within the colony. Figure IX.C-1 indicates the foraging sites used by wood storks from the Corkscrew Swamp Colony. Lee County wetlands provide significant feeding areas for wood storks. As water levels drop in the winter, fish are trapped in depressions associated with the wetland. These fish become an easy meal for the wood storks. The storks rely on this feeding source for successful breeding and survival. Strict enforcement of strong wetland regulations is the first step to protect this important feeding source. The Lee County Protected Species Ordinance provides the next step in protecting wood stork forage areas. It requires surveys and management plans for the wood storks. Nesting, roosting, and rooking areas are identified in the survey. Preservation of those areas can be accomplished through conservation easements granted to the county. All management plans must follow the Habitat Management Guidelines for the Wood Stork in the Southeast Region, a 1990 publication of the U.S. Fish and Wildlife Service. Of the 20 surveys submitted to date, only one indicated the presence of wood stork areas. Two wood storks were identified off of the property. The management plan associated with this property includes preservation of the wetlands associated with this documented forage site. Joint Exhibit 10.c, page IX-3. Figure IX.C-1 indicates the foraging sites used by wood storks of the Corkscrew Swamp colony from 1985 to 1988. The 30 indicated sites are (with one exception) concentrated in extreme southeast Lee County. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones. Addressing Florida panthers, the Revised Data and Analysis report: The greatest problems facing panthers are directly related to human intrusion. Habitat loss due to increased development erodes the range necessary for each cat's survival. Florida panthers require extensive and biologically diverse landscapes. Male panthers utilize up to 400 square miles of territory. Biotic systems utilized by the Florida panther include "mixed swamp forests, cypress swamps, sawgrass marshes, mesic hammocks, pine flatwoods, and palmetto prairies." (Maehr, David S., "The Florida Panther and Private Lands.") Uplands are especially critical habitats for Florida panther. The tall palmetto systems which are particularly beneficial to the panther are also particularly prized for agriculture and development. Because of the vast range necessary for the survival of the panther, protection of their habitat cannot be fully accomplished through site design regulations for private development. Large areas need to be acquired, preserved, and managed for the long- term survival of this species. Suitable corridors must also be maintained, either through acquisition or regulations. . . . In recent years, two cats have been documented in Lee County. One travels from Collier County, through the Flint Pen Strand, and north past the Southwest Florida Regional Airport to the Caloosahatchee River. This is a young panther. This movement is reflected in Figure IX.C-2 showing public lands within panther range. The second panther has been documented in Northern Lee County. Its range probably includes portions of Charlotte County. Figure IX.C-3 showing Florida panther range is currently out of date given the known travels of the first panther. The enlargement of this map in Figure IX.C-4 illustrates the importance of the Flint Pen Strand acquisition in the preservation of well-documented panther habitat. Joint Exhibit 10.c, pages IX-5 to IX-6. Figures IX.C-3 and -4 disclose that about 50 square miles of south Lee County serves as known panther habitat, although actual habitat is even greater. The 50-square mile area contains much of the land in Lee County east of I-75 and the headwaters of the Estero River. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones except for all or parts of six one- mile sections, which are designated Suburban and General (Interchange Area). The Revised Data and Analysis discuss the habitat of black bear: Black bear range requirements are strikingly similar to that of the Florida panther. Like the Florida panther, the adult male will occupy home ranges that are greater than the female; in the case of the black bear, 3 to 8 times greater. The range of the black bear forage area extends anywhere from 40 to 312 square miles. In Lee County, bears are known to exist in the northern and southeastern areas of the county. Bear dens are common in the eastern extent of the Flint Pen Strand acquisition. Black bear are generally more common in the southeastern area of the county (see Figure IX.C-7). Black bears have a diverse diet including acorns, various berries, and insects. Under some circumstances, they may also consume feral hogs and cattle. Consistent with their famous desire for honey, bears are notorious for invading apiaries. This activity causes an obvious conflict between bee-keepers and the bears, as many orange groves currently exist in the northern and eastern areas of the county. More groves are permitted in the area as well. Bears studied in the Ocala National Forest predominantly utilized pine flatwoods for bedding and forage. "Pine flatwoods provide good cover for winter bedding as well as a nearly year-round source of food and water. This habitat type supports a variety of food- producing plans including gallberry, blueberry, and saw palmetto." (Wooding, John B. and Hardisky, Thomas S., Final Performance Report: Black Bear Study, page 18.) Bears studied in [the] Osceola National Forest utilized cypress/bay swamps greatest in the fall and winter. The dense cover and fall food supply are explanations for this use. Black bears are prone to utilize areas which include oak in the autumn to take advantage of acorn production. Oak hammocks provide black bears with dense cover and food during these periods. It appears that black bear hibernate to some degree in south Florida. This period of hibernation is of a shorter duration (2 to 3 months) and the bears are more alert during hibernation than they are in more northern areas. However, building energy stores for the hibernation is still important to the black bear in south Florida. Florida black bear dens are simply beds made of vegetation such as palmetto fronds. They are known to den in a variety of habitats. However, pine flatwoods and cypress swamps would appear to be the most utilized for this area. "It is speculated that Florida black bears have adequate food supplies to reproduce by the age of 3-4 years." (Wooding and Hardisky, page 23.) Black bear road kills have been reported along I-75. These bears were crossing in the vicinity of San Carlos Park. Bears have been sighted in that community and occasionally elsewhere west of I-75. However, I-75 is more typically a barrier to black bear migration to the western half of the county. Preservation of large tracts of unfragmented forests is necessary for the continued survival of black bear in Lee County. Public acquisition of connected forested tracts is an effective way of ensuring habitat preservation for black bear. The Flint Pen Strand acquisition includes the area of most extensive bear denning and bedding in Lee County. Since this area is connected by the Bird Rookery Swamp acquisition to the Corkscrew Swamp Sanctuary, connectivity of preserved land is accomplished. The largest area of land currently under public control in southeastern Lee County is owned by the city of Fort Myers. Their southeast wellfield site encompasses 6 sections and is compatible with the management of black bear. This area is just 2 miles from the Flint Pen Strand acquisition. A link between the two would provide the needed connectivity and should become a priority. Enhancement of large preserved tracts may yield a higher density of bears. This enhancement includes the planting of forage plants and the maintenance of dense vegetation. A burning program that favors the production of soft mast-forming species should be evaluated with consideration of promoting Melaleuca [sic]. Joint Exhibit 10.c, pages IX-6 and -13. Figure IX.C-7 shows that most of the bear use areas correspond to the depicted location of the Florida panther habitat. As to Issue 2, to the extent that the Revised Data and Analysis address vegetative communities and wildlife habitats, Petitioner has failed to prove to the exclusion of fair debate that the Revised Data and Analysis are inconsistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon unique wildlife habitat. As to Issue 6, the Plan Amendments address to a limited extent regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat. The Plan Amendments address the wood stork and its habitat as follows: Objective 77.10: WOOD STORK. By July, 1991, regulatory measures to protect the wood stork's feeding and roosting areas and habitat shall be adopted and enforced by Lee County. Policy 77.10.1: By December 31, 1990, the Protected Species Ordinance (#89-34) and its administrative code (AC-13-10) shall include wood storks as a Lee County Listed Species, requiring surveys for and protection of wood stork habitat. The county shall maintain an inventory of documented feeding, roosting, and rooking areas for the wood stork to ensure that surveys submitted through the Protected Species Ordinance include such areas. Policy 77.10.2: By December 31, 1990, the county shall require management plans for existing wood stork feeding, roosting, and rooking areas to utilize "Habitat Management Guidelines for the Wood Stork in the Southeast Region" (U.S. Fish and Wildlife Service, 1990). Policy 77.10.3: By July 1991, the county shall provide incentives for the creation of wood stork feeding areas in mandatory littoral shelf design, construction, and planting. These incentives shall include relief from 50% of the shrub requirements in exchange for fish entrapment areas. Policy 77.10.4: By July 1991, the county shall identify wood stork flight patterns from roosting and rooking areas to feeding areas within the county. Regulations protecting significant flight areas shall be adopted by July 1992, restricting the construction of tall structures such as broadcast towers (see Policy 2.1.5). Policy 2.1.5 provides: 25/ * [[After the completion and acceptance of a special study]] <<By July 1991, the county shall complete a special study on locational criteria for tall structures such as broadcast towers. These criteria shall include wood stork flight corridors from roosting and rooking areas to feeding areas as well as airport hazard areas. By July 1992, new>> tall structures such as broadcast towers shall be [[encouraged or]] required to be located in areas identified as appropriate <<after examining the findings of the study (see Policy 77.10.4).>> * Note: In the above quotation, language added to the policy is within the <<>>; deleted language is within the [[]]. Policy 77.10.1 requires Lee County to keep an inventory of wood stork feeding, roosting, and rooking areas to ensure that developer-provided surveys include such areas. The Revised Data and Analysis indicate that the County is already aware of certain of such areas. Policy 77.10.2 requires, by December 31, 1990, Lee County to demand that management plans for existing wood stork feeding, roosting, and rooking areas use regionally applicable U.S. Fish and Wildlife Service guidelines for habitat management. The requirement of management plans arises from the inclusion of wood storks among Lee County Listed Species, as provided in Policy 77.10.1. Policies 77.10.3 and 77.10.4 provide additional protection for wood storks found in Lee County. The Plan Amendments address the Florida panther, black bear, and their habitat as follows: Objective 77.11: FLORIDA PANTHER AND BLACK BEAR. By June 30, 1991, county staff shall develop measures to protect the Florida panther and black bear through greenbelt and acquisition strategies. Policy 77.11.1: County staff, working with the Florida Game and Fresh Water Fish Commission, shall identify known black bear and Florida panther corridors in Lee County. Policy 77.11.2: Criteria developed for ranking land acquisition priorities shall include known panther and black bear corridors. Policy 77.11.3: Lee County shall inform Collier and Charlotte counties as to Lee County corridor acquisition projects to encourage a regional approach to corridor acquisition. Policy 77.11.4: Lee County shall support the acquisition of the Flint Pen Strand through a millage increase of .2 mills over a three-year period. Acquisition of this documented Florida panther and black bear corridor shall be coordinated with the South Florida Water Management District's "Save Our Rivers" program and the state's "Conservation and Recreational Lands" program. Policy 77.11.5: Important black bear and Florida panther use areas shall be identified. Corridors for regulatory and public acquisition purposes shall be designated within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Policy 77.11.6: Florida panther and black bear corridors shall be included in the Protected Species Ordinance (#89-34) management section. Where corridors are purchased (or designated for purchase) adjacent to the development site, then a buffer to the corridor of no greater than 500 feet shall be required. Policy 77.11.7: In any vegetative restoration projects conducted by Lee County for land acquired due to its environmental sensitivity (such as the Six Mile Cypress Strand and the Flint Pen Strand), plant lists shall include species that provide forage for the prey of the Florida panther and forage for the black bear. The Plan Amendments also modified another policy contained in the Plan: Policy 77.4.1: Identify, inventory, and protect flora and fauna indicated as endangered, threatened, or species of special concern in the "Official Lists of Endangered and Potentially Endangered Fauna and Flora of Florida," Florida Game and Fresh Water Fish Commission, as periodically updated. <<Lee County's Protected Species Ordinance (#89- 34) shall be enforced to protect habitat of those listed species found in Lee County that are vulnerable to development. There shall be a funding commitment of one full-time environmental planner to enforce this ordinance through the zoning and development review process.>> Although not further described in the Amended Plan, the Protected Species Ordinance, which is not part of the Amended Plan, is addressed in the Revised Data and Analysis: The Protected Species ordinance (#89-34) was adopted by the Lee County Board of County Commissioners on August 31, 1989, and became effective on September 1, 1989. The ordinance was the first in the nation to require a survey for listed species habitat and a management plan for proposed development sites. The survey method is delineated to ensure a proper survey is performed. This survey is only required for those vegetative communities known to harbor listed species from the "Official Lists of Endangered and Potentially Endangered Flora and Fauna of Florida" of the Florida Game and Fresh Water Fish Commission. Once the listed species are identified, a number of regulatory tools are used to preserve the nesting, feeding, and "other use" areas. These tools include the transfer of density on-site, use of open space requirements, and credits toward regional park impact fees. * * * The ordinance is being administered to allow maximum development flexibility while preserving listed species habitat. Joint Exhibit 10.c, page IX-1. Added by the Plan Amendments, Objective 17.4 states: NATURAL RESOURCES. County regulations, policies, and discretionary actions shall permit no further degradation of estuarine and wetland resources and no unnecessary loss of native upland vegetation and wildlife habitat. Although unaffected by the Plan Amendments, other provisions of the Amended Plan address wildlife habitat and identifies techniques for limiting the impacts of development and redevelopment upon important vegetative communities. These provisions state: Goal 77: RESOURCE PROTECTION. To manage the county's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal species diversity, water quality, and natural surface water characteristics. Objective 77.l: RESOURCE MANAGEMENT PLAN. By 1991 the county shall adopt a resource management plan that will ensure the long- term protection and enhancement of the natural upland and wetland habitats through the retention of interconnected, functioning, and maintainable hydroecological systems where the remaining wetlands and uplands function as a productive unit resembling the original landscape. Policy 77.l.l: The county shall designate a natural resource management agency with responsibilities including: Identifying upland and wetland habitats/systems most suitable for protection, enhancement, reclamation, and conservation. Recommending standards to the Board of County Commissioners for Board approval for development and conservation that will protect and integrate wetlands (Resource Protection Areas and Transition Zones), and significant areas of Rare and Unique upland habitats (RU) as indicated in the Lee County Coastal Study, including but not limited to: sand scrub (320); coastal scrub (322); those pine flatwoods (411) which can be categorized as "mature" due to the absence of severe impacts caused by logging, drainage, and exotic infestation; slash pine/midstory oak (412); tropical hardwood (426); live oak hammock (427); and cabbage palm hammock (428). The numbered references are to the Florida Land Use Cover and Forms Classification System (FLUCFCS) Level III (FDOT, 1985). Preparing standards for wetland and rare and unique upland mitigation. Preparing a prioritized listing of wetlands, rare and unique uplands, and critical endangered and threatened species habitat properties for possible acquisition. Recommending a plan for eradicating and controlling problematic exotics Melaleuca, Schinus, and Casuarina with the highest priority placed on preventing new or accelerated infestations in wetlands and rare and unique upland habitats. Maintaining a central clearinghouse for all environmental studies and recommendations by both public and private organizations. Completing the mapping of the hydrological boundaries and habitats of each coastal watershed that extend landward of the coastal area study boundary. Preparing recommendations for maintaining or restoring the desired seasonal base flows and water quality into the coastal zone after reviewing monitoring data. Coordinating the preparation of plans with the municipalities, South Florida Water Management District, and Southwest Florida Water Management District to better control flows of freshwater and reduce pollutant discharges into the Lee County coastal waters. Regularly updating the Level III maps and database of the Coastal Study to reflect the existing conditions following each aerial photography overflight of the county. Providing an annual report to the county commission on the status of wetlands, native uplands, and rare and unique habitats. The report should focus on the adequacy of the land use regulations and management plan to protect and enhance these natural systems. Adjustments should be made in the regulatory process to address whatever deficiencies are noted. Objective 77.2: PLANT COMMUNITIES. By 1991, Lee County will have completed an inventory of natural plant communities and will adopt a program to protect at various suitable locations remnant tracts of all important and representative natural plant communities occurring within Lee County. Policy 77.2.1: Establish a coordinated natural resources information exchange program with state and regional agencies. Policy 77.2.2: Prevent incompatible development in and around areas that have been identified as unique or important natural plant communities. Policy 77.2.3: Prevent water management and development projects from altering or disrupting the natural function of significant natural systems. Policy 77.2.4: Encourage the protection of viable tracts of sensitive or high-quality natural plant communities within developments. Policy 77.2.5: Prepare and adopt regulations to control the clearing of natural vegetation except where and when needed for permitted development. Policy 77.2.6: Avoid needless destruction of upland vegetation communities including coastal and interior hammocks through consideration during the site plan review process of alternative layouts of permitted uses. Policy 77.2.7: Specify in the development regulations where inventories and assessments of the impacts of development in environmentally sensitive lands and Rare and Unique upland habitats shall be required. Policy 77.2.8: Promote the long-term maintenance of natural systems through such instruments as deed restrictions, covenants, easements, transfer of development rights, restrictive zoning, and public acquisition. Policy 77.2.9: Identify possible programs which would help to eradicate noxious plant species and/or non-native plant species from environmentally critical areas and Rare and Unique upland habitats, and implement pilot programs. Incentives such as density bonuses may be considered. Policy 77.2.10: Development adjacent to aquatic and other nature preserves, wildlife refuges, and recreation areas shall protect the natural character and public benefit of these areas including, but not limited to, scenic values for the benefit of future generations. Policy 77.2.11: The planting of Brazilian Pepper, Melaleuca, and Australian Pine is prohibited in order to prevent the spread of these noxious species. Policy 77.2.12: Lee County shall protect its natural resources by encouraging and cooperating with the local Mosquito Control District to employ the maximum feasible use of natural biological agents to control injurious insects. Objective 77.3: WILDLIFE. Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system to which man is inexorably linked. Policy 77.3.1: Encourage upland preservation in and around preserved wetlands to provide habitat diversity, enhance edge effect, and promote wildlife conservation. Policy 77.3.2: Develop a plan to establish wildlife corridors in order to help to maintain regional species viability and diversity. Policy 77.3.3: Adequate safe passage for wildlife under or across new and reconstructed roads shall be provided where appropriate. Objective 77.4: ENDANGERED AND THREATENED SPECIES IN GENERAL. Lee County will continue to protect habitats of endangered and threatened species and species of special concern in order to maintain or enhance existing population numbers and distributions of listed species. * * * Policy 77.4.2: Conserve critical habitat of rare and endangered plant and animal species through development review, regulation, incentives, and acquisition. Policy 77.4.3: Require detailed inventories and assessments of the impacts of development where it threatens habitat of endangered and threatened species and species of special concern. Policy 77.4.4: Restrict the use of critical habitats to that which is compatible with the requirements of endangered and threatened species and species of special concern. New developments shall protect remnants of viable habitats when listed vegetative and wildlife species inhabit a tract slated for development, except where equivalent mitigation is provided. Objective 77.5: LOGGERHEAD SEA TURTLES. By the beginning of the 1989 nesting season (May 1), establish a program to minimize the disorientation of hatchling sea turtles along the Gulf beaches. Policy 77.5.1: The sea turtle protection program shall include at least the following activities: Prepare a guide for homeowners and builders which explains the detrimental effects of night-time beachfront lighting on hatchling sea turtles. Examine public light sources (streetlights, security lights, beach access lights, etc.) and prepare a plan to minimize the amount of harmful light from such sources onto the beach during the nesting season. Conduct an educational program to persuade residents to reduce lighting levels on the beach and to publicize other hazards to turtles from activities of people, pets, and vehicles. Encourage electrical suppliers and lighting dealers to stock special fixtures which reduce the negative effects of beachfront lighting. Develop an ordinance which controls the installation of new light fixtures which could shine on the beach, and which encourages or requires that existing lights be shielded or turned off during the nesting season. Determine whether certain areas of the beachfront are not used by sea turtles for nesting and should therefore not be subject to the same restrictions. Objective 77.6: SOUTHERN BALD EAGLES. During 1989, amend the county's ordinance protecting southern bald eagle habitat to provide an optimum mix of incentives and regulations for protecting buffer areas around nests. Policy 77.6.l: Maintain a policy of negotiations with owners of land surrounding eagle nests to provide an optimal management plan for land subject to imminent development. Policy 77.6.2: The county Eagle Technical Advisory Committee shall complete by the end of 1989 an assessment of all eagle nests in Lee County, and shall prepare proposed guidelines for each nest. Policy 77.6.3: The Committee shall also prepare management guidelines to inform land owners and the general public of proper practices to minimize disturbances to eagle nests. Objective 77.7: WEST INDIAN MANATEES. Minimize injuries and mortality of manatees to maintain the existing population by encouraging the adoption by the state of Florida and local governments of regulations to protect the West Indian Manatee in the Caloosahatchee and elsewhere in Lee County. During 1990, manatee management plans will be prepared for other waters of Lee County also frequented by manatees. Policy 77.7.1: Characterize and map important manatee habitats; identify and evaluate potential threats to important habitats; and consider management agreements to protect such habitats. Policy 77.7.2: Identify areas of greatest actual or potential boat/barge mortality and/or injury by December 31, 1990, and establish slow or idle speed zones. Policy 77.7.3: Inform and educate the public through sign posting, lectures, and regulations about manatee protection. Policy 77.7.4: Educational materials regarding manatees should be disseminated to boaters and warning signs placed in areas where both manatees and humans congregate. Policy 77.7.5: Construction and expansion of multi-slip docking facilities and boat ramps shall be encouraged in locations where there is quick access to deep, open waters where the associated increase in boat traffic will be outside areas of high manatee concentration. Policy 77.7.6: Rezoning and DRI applications for marinas and boat ramps shall be evaluated in the context of cumulative impacts on manatees and marine resources. Policy 77.7.7: State, local, and private interests shall work in cooperation to develop and implement area-specific manatee protection plans. Policy 77.7.8: By October 1, 1991, the county shall provide a permanent funding source to assist the Florida Department of Natural Resources in enforcement of such manatee protection plans as may be adopted. Objective 77.8: GOPHER TORTOISES. During 1989, determine the suitability of publicly owned property for the relocation of gopher tortoises. Policy 77.8.1: The county's policy is to protect gopher tortoise burrows wherever they are found. However, recognizing that there occasionally are unavoidable conflicts which require the relocation of gopher tortoises, the suitability of alternate sites should be evaluated as to --physical suitability of the site for the gopher tortoises; --long-term protection of the land; --conflicts with other management objectives for the land; and --costs that would be incurred by the relocation. Objective 77.9: RED-COCKADED WOODPECKER. By 1990, county staff will prepare a list of best management practices for the red- cockaded woodpecker's habitat. Policy 77.9.1: County staff will note and document other possible red-cockaded woodpecker sites during routine site inspections. As to Issue 6, to the extent that the Plan Amendments address the identification of regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the criterion of a policy identifying such regulatory or management techniques. Future Land Use Map Series (Issues 3, 4, 5, 7, and 11) Issues 5, 7, and 11 As to Issue 11, the future land use map series, which includes the 2010 overlay, reflects a planning timeframe of 20 years. The schedule of capital improvements covers a five-year timeframe. Petitioner argues in her proposed recommended order that the Amended Plan uses inconsistent timeframes, such as those mentioned above, as well as timeframes of five years for potable water and sewer, less than 10 years of need for potable water wellfield protection, and one year for mass transit. Different timeframes may be appropriate for different projected items because of the varying amounts of available data and analysis for different items, varying planning requirements in the growth management law concerning different items, and varying degrees of predictability for different items. As to Issue 11, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the criterion of two planning timeframes. As to Issue 5, nothing in the Plan Amendments or Revised Data and Analysis identifies potable water wellfields or their cones of influence. Map 8 of the Amended Plan identifies the cones of influence surrounding depicted wellfields and indicates that it was "as adopted [on] January 31, 1989." Map 8 obviously was part of the Plan and was unchanged by the Plan Amendments. The extensive amendments and revisions concerning the new 2010 overlay, the Density Reduction/Groundwater Resource designation, related Plan Amendments, and the data and analysis underlying these operative provisions do not provide a basis for Petitioner's assertion that the future land use map series fails to identify potable water wellfields permitted to pump less than one million gallons per day and their cones of influence. Issue 5 is directed toward the Plan, not the Plan Amendments. As to Issue 7, nothing in the Plan Amendments or Revised Data and Analysis involves densities in the coastal high hazard area, except to the extent that the 2010 overlay may reduce such densities by limiting residential uses when compared to the original 70-year future land use map. 26/ Issue 7 is directed toward the Plan, not the Plan Amendments. Issues 3 and 4 Overview As to Issues 3 and 4, the Plan Amendments substantially changed the future land use map series by the addition of the 2010 overlay and related text. However, except for the introduction of the new Density Reduction/Groundwater Resource designation, the Plan Amendments, including the 2010 overlay, did not substantially alter the types of land uses permitted by the future land use map series in the Plan. The 2010 overlay and related text address the timing of land uses by limiting the amount of land that may, prior to 2010, be devoted to the uses designated by the future land use map in the Plan. Issues 3 and 4 generally raise the issue whether the Plan Amendments, including the amended future land use map series, are supported by data and analysis. Because the Plan Amendments and the amended future land use map series do not generally change the uses that are ultimately to be allowed in an area, the Plan Amendments and amended future land use map series are not implicated by allegations that the amended future land use maps are not consistent with soils, topography, and floodplains. For the same reason, the Plan Amendments and amended future land use map series do not play a significant role in determining whether land use designations for specific areas, such as North Bonita Springs, are supported by data and analysis. However, as explained below, the Plan Amendments, including the amended future land use map series, directly affect the amount of land that will be available for designated uses by 2010. Based on the findings contained in the following sections, the designations contained in the amended future land use map series--even as limited by the 2010 overlay--lack support from data and analysis in two crucial respects. The first deficiency is that the density allocations are not supported by data and analysis. The second deficiency involves all designations, not just residential designations expressed in terms of densities. The second deficiency contains two parts. First, the existing land use baseline data are omitted from the Amended Plan and Data and Analysis. Second, the County has yet to design a reliable process for updating the available baseline existing land use data. The determination whether the density allocations in the amended future land use map series are supported by data and analysis begins with consideration of the ratio of the maximum population accommodated by the Amended Plan for the planning timeframe divided by the projected population at the end of the planning timeframe. The resulting ratio is not itself determinative of the issue whether data and analysis support the density designations in a comprehensive plan. A wide range of density allocation ratios may be calculated for the same plan. There are a variety of reasonable assumptions and adjustments, especially for reducing the maximum population accommodated by the plan. Also there are a range of reasonable density allocation ratios. A density allocation ratio represents a rough calculation of the relationship between the amount of land needed for residential uses during the planning timeframe compared to the amount of land so designated during the planning timeframe. If the ratio is relatively high, there is a greater chance that the plan may not facilitate the efficient use of land or the efficient provision of public facilities, especially if the spatial distribution of densities and textual plan provisions do not tend to achieve these objectives. In any event, a density allocation ratio is an important factor in determining whether data and analysis support the density designations contained in a comprehensive plan. As explained below, the Data and Analysis contain a critical adjustment by which the maximum densities permitted in the Amended Plan are reduced to reflect historic densities--by an unstated amount and according to an incompletely described methodology. The second deficiency concerning supporting data and analysis undermines residential, commercial, industrial, and other designations. The baseline existing land use data are omitted from the Amended Plan and Data and Analysis, and the process by which existing land uses will be updated is uncertain and unreliable. The 2010 overlay is meaningless without these data. As described below, the 2010 overlay divides the County into numerous subdistricts. The 2010 overlay limits development in each subdistrict to a maximum acreage for each land use category. The acreage limitations represent total acreage, which consists of the acreage of existing land uses that preexisted the implementation of the 2010 overlay and the acreage of land use authorized pursuant to, and following, the implementation of the 2010 overlay. The baseline data missing from the Amended Plan and Data and Analysis are the acres of each existing land use for each subdistrict. The absence of such data from a readily available source such as the Amended Plan or Data and Analysis undermines effective implementation of each of the designations contained in the 2010 overlay. Although the evidence indicates that the County has adequate baseline existing land use data, such data, for the reasons set forth in the Conclusions of Law, must be included in the Amended Plan or the Data and Analysis because of its indispensable role in the implementation of the 2010 overlay. Neither the Amended Plan nor the Data and Analysis identify the process by which Lee County will update the baseline existing land use data. Evidence at the final hearing revealed serious deficiencies in the updating process, which requires the County to extrapolate from traffic data and analysis the ongoing incremental acreage increases of land use, rather than track the increases as they are authorized in a more straightforward fashion. Thus, concerning the second deficiency, the designations contained in the 2010 overlay are supported by data and analysis only to the extent of: 1) a clearly ascertained baseline, in terms of acres of existing land uses by category for each planning subdistrict, set forth in the Amended Plan or the Data and Analysis and 2) the identification of a reliable means of determining the incremental acreage increases authorized by the County for each land use category for each planning district following the implementation of the 2010 overlay. 2. How the Amended Future Land Use Map Series Works The primary component of the future land use map series Map 1, which is a future land use map containing 18 future land use designations. Map 1 projects land uses through buildout of the entire County, or about 70 years. Map 1 was contained in the Plan and was not changed by the Plan Amendments, except for the addition of the 2010 overlay and the Density Reduction/Groundwater Resource designation. The Plan Amendments added Maps 16 and 17 to the future land use map series. Maps 16 and 17 constitute the 2010 overlay. Map 16 divides the entire County, including the three municipalities, into 115 planning subdistricts. Map 17 is not a map, but is a series of bar graphs depicting acreages for seven land use categories: residential, commercial, industrial, parks and public, active agriculture, conservation, and vacant and passive agriculture. The regulatory concept of the 2010 overlay is to prohibit, prior to 2010, the issuance of "final development orders or building permits" for any future land use designation once the subdistrict has attained the acreage specified for that type of land use by Map 17. Joint Exhibit 10.b, page 3. This concept is implemented by Policy 1.1.1, which provides: The Future Land Use Map contained in this element is hereby adopted as the pattern for future development and substantial redevelopment within the unincorporated portion of Lee County. <<Maps 16 and 17 are an integral part of the Future Land Use Map series (see Policies 1.7.6 and 2.2.2). They depict the extent of development through the year 2010. No final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on these maps to be exceeded.>> The cities of Fort Myers, Cape Coral, and Sanibel are depicted on [[this]] <<these>> maps only to indicate the approximate intensities of development permitted under the comprehensive plans of those cities. Residential densities are described in the following policies and summarized in Table l. The Revised Data and Analysis explain that the purpose of the 2010 overlay is to make the 70-year future land use map in the Plan "even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon." Joint Exhibit 10.b, page 1. The Revised Data and Analysis elaborate: The addition of a 20-year horizon (i.e., to the year 2010) to the map series is an effort to project and monitor land development quantitatively on a small area basis and over a relatively shorter period of time, thus improving the county's ability to coordinate zoning, impact fees, and other development regulations with the planning and programming of public facilities and services. Joint Exhibit 10.b, page 2. Assumptions, Data, and Methodologies Applicable to 2010 Overlay Density Allocations: Assumptions and Data Map 1 and the 2010 overlay are based on the 1987 University of Florida high-range population projections for 2010. Joint Exhibit 10.b, page 4. Residential projections are based on peak or seasonal populations, which are permanent populations plus 18%. Joint Exhibit 10.b, page 4, and County Exhibit 1.B, page V-7. Populations are converted to dwelling units by assuming that 2.01 persons occupy each dwelling unit. Id. The population figures typically include Ft. Myers, Cape Coral, and Sanibel, not merely unincorporated Lee County. 27/ Other important assumptions identified in the Revised Data and Analysis are that there will be no net loss of wetlands, the density allocations will reflect the new Groundwater Resource/Density Reduction designation with a density of one dwelling unit per 10 acres (1:10), the Mid-Point Bridge will be built by 2000, all but one of the transportation projects shown on the Interim Traffic Circulation Plan Map will be finished by 2010, and the "state road network" will be enhanced by the Traffic District Program and Interim/Operational Improvement Program for backlogged roads and Operational Improvement Program for constrained roads. 28/ Joint Exhibit 10.b, pages 4-5. Another key assumption involves adjustments to the designated densities authorized in the comprehensive plans of Ft. Myers, Cape Coral, and Sanibel. Acknowledging that Lee County lacks planning jurisdiction over these municipalities, the Revised Data and Analysis nonetheless reveal that Lee County made "some adjustments" to their growth trends. In other words, in determining the densities to use for the 2010 population that could be accommodated by the cities' plans, Lee County chose not to rely on the maximum densities indicated by the future land use designations given vacant residential acreage on each city's future land use map. Instead, as it did for the unincorporated County, Lee County reduced the maximum densities in the cities' plans to account for historic buildout densities. Joint Exhibit 10.b, page 3. Density Allocations: Methodology Noting that the 2010 overlay is not a "textbook planning concept," the Revised Data and Analysis acknowledge that the 2010 overlay required an "innovative methodology," which, due to time constraints, could not be fully documented in the Revised Data and Analysis. Joint Exhibit 10.b, page 3. Instead, the Revised Data and Analysis provide only a "brief explanation" of the methodology. Id. Section III of the Revised Data and Analysis for the Future Land Use Element 29/ describes the methodology underlying the County's estimate of the builtout capacity of the land. In this analysis, the County reduces maximum densities permitted under the Amended Plan to reflect anticipated actual densities. This adjustment is intended to reflect the historic buildout factor in Lee County, which generally resulted in involved lower densities in urban areas and higher densities in rural areas than are designated in the Amended Plan. The Revised Data and Analysis explain that the Original Data and Analysis used 1981 data and analysis of then-existing vacant land, including platted but vacant lots. The vacant acreage was then tabulated by land uses identified within the Plan. The Revised Data and Analysis add: By adding the 1981 dwelling unit count to a reasonable projection of future housing densities on the "vacant" acreage, an estimate was made of the build-out capacity of the unincorporated area as shown in the Lee Plan's land use map. The process by which vacant acreage was converted to dwelling units is partly described, at least to the extent of several assumptions. The following percentages were deducted from the vacant acreage for the following uses: commercial--8%; major collector and arterial roads--5%; educational facilities- -2%; and community and regional parks--1%. Another 10,000 acres were deducted from the vacant acreage for industrial uses. The percentage reductions for commercial and industrial future land uses were based on studies by the independent planning consultant who was involved in the preparation of Map 1 and the 2010 overlay. Joint Exhibit 10.b, page 6. The deductions for commercial and industrial acreage allotments, as described in this paragraph, are reasonable and supported by data and analysis. 30/ The Revised Data and Analysis, as well as the Original Data and Analysis, mention adjustments that Lee County made to its analysis of the capacity of residential development authorized by the Amended Plan. By these adjustments, the County attempted to show where commercial and industrial uses would preempt residential uses. Although the methodology of the adjustments is not disclosed, they appear to represent a reasonable attempt to avoid the unrealistic land use planning assumption that commercial and industrial uses would be scattered equally throughout the parts of the County where they are authorized under the Amended Plan. The Revised Data and Analysis next break down the acreage of each future land use designation into 15 planning districts and 115 planning subdistricts. Table 1 (III C) beginning on page 8 of Joint Exhibit 10.b provides acreages for each of the 15 planning districts on three tables: one for Lee County in its entirety, one for unincorporated Lee County, and one for the three municipalities. Table 2 (III C) breaks down the acreages by planning subdistrict. The acreages in Tables 1 (III C) and 2 (III C) do not correspond to the acreages shown in Map 17 and Table 3 (V G). 31/ The differences are not indicative of deficient data and analysis. Tables 1 (III C) and 2 (III C) represent interim stages of the process by which Lee County developed the 2010 overlay and, as such, do not provide acreages on which density allocations may be calculated. However, Tables 1 (III C) and 2 (III C) do not suggest that the final acreage figures in Map 17 and Table 3 (V G) represent the maximum densities or population allowed in the Amended Plan without reduction for historic densities. To the contrary, the Revised Data and Analysis indicate that the preparation of Table 2 (III C) allowed "the input of expected densities." Joint Exhibit 10.b, page 7. Unlike Table 3 (V G) or Table 1 (III C), Table 2 (III C) contains a column entitled, "Buildout Assumptions." One part of the Buildout Assumptions column is "percent residential." The adjustment for percent residential appears to be based on the above-described deductions for commercial and industrial allotments. In any event, the adjustment represents a reasonable projection as to what portions of land designated residential will necessarily be devoted to other uses, such as commercial and industrial. The other part of the Buildout Assumptions column in Table 2 (III C) is "dwelling units per acre," which appears to represent adjusted projections based on historic buildouts. The maximum densities for each category allowed by the Amended Plan are invariably equal to or (more often) higher than the dwelling units per acre contained in the Buildout Assumptions. 32/ The Revised Data and Analysis revise Section V(G) of the Original Data and Analysis. This section is entitled "Future Land Use Needs for the Year 2010." The new section addresses exclusively residential development. Table 2 (V G) in the new section lists by planning subdistricts the number of dwelling units in 1987, the number of dwelling units projected for 2010, and the number of dwelling units projected at buildout. In introducing Table 3 (V G), the Revised Data and Analysis note that the projected number of dwelling units for 2010 (presumably from Table 2 (V G)) was translated to acreage by "taking the number of acres in each land use category in each district and allocating the residential units projected for 2010 at the density factor (number of units per acre) allowed in the land use category." Joint Exhibit 10.b, page 37. However, the acreage allotments in Table 3 (V G), which are the same as those in Map 17, reflect historic density adjustments, rather than unadjusted applications of the maximum densities authorized in the Amended Plan. For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for failing to disclose information necessary to calculate the maximum population that can be accommodated by the Amended Plan. 33/ For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for reducing the maximum population that can be accommodated by the Amended Plan by an undisclosed amount to reflect historic buildout densities. The purpose of Map 1 was to depict the land uses in Lee County at buildout, which was estimated to be about 70 years. This 70-year future land use map was to facilitate end-state public facility planning by assisting the County and private utility companies in determining where to locate and how to size public facilities so as to accommodate the builtout population of Lee County. Projecting actual buildouts for end-state public facility planning requires an adjustment based on historic densities. But the present determination is whether the densities authorized by the Amended Plan are supported by data and analysis. This determination requires consideration of the effectiveness of the future land use map series as a regulatory device to assist the Amended Plan in achieving consistency with applicable criteria of the growth management law. To a large extent, any regulatory purpose for Map 1 was frustrated by the fact that, in 1989, it made available for immediate development (subject to concurrency) all of the land that would be needed for various uses by 2060. The 70-year planning timeframe meant that Map 1 designated amounts of land for various uses that were grossly in excess of that which was needed in 1989 or even 2010. To this extent, the 70-year future land use map did not facilitate effective land use planning. The sole purpose of the 2010 overlay is to shorten the planning timeframe of Map 1 from 70 year to 20 years. The shorter planning timeframe is more meaningful for land use planning, as well as facility planning in the interim. Although the 2010 overlay clearly strengthens the future land use map series as a regulatory device, the question still remains whether even the reduced densities designated by the map series are supported by data and analysis. The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities somewhere between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. Although there is some flexibility in calculating and interpreting density allocation ratios, the reduction of maximum densities allowed in the Amended Plan by an undisclosed amount and by an incompletely explained methodology frustrates the purpose of comprehensive land use planning. The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population and consider the extent of the overallocation in light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. By failing to disclose either the maximum population that can be accommodated by the Amended Plan or even the bases upon which such maximum densities could be derived, Lee County has implicitly and--at times--explicitly demanded undue deference to its above-described density analyses. Nothing in the record warrants such deference. Although Lee County has made considerable progress in regulating land uses since first adopting zoning in 1962, sprawling, low-density residential monoliths already occupy much of the landscape in Lee County. Two such areas are Lehigh Acres and Cape Coral, the latter of which has now been incorporated. These inefficient land use patterns, which are a large part of Lee County's historic densities, generally exceed rural densities but do not attain urban densities. Lee County confronts a serious challenge from the massive tracts of prematurely (and in some cases unsuitably) platted lots, as well as the ongoing pressure to continue such inefficient and costly land use practices. The Original Data and Analysis note that "vacant zoning together with platted lands could accommodate over 218,700 units or 518,000 people in the unincorporated area alone" and that the "pace of rezoning, often with speculative intent, has not lessened appreciably since that time." County Exhibit 1.B, Future Land Use Element Data and Analysis, page V-1. The Original Data and Analysis observe that Lee County in its entirety contains 480,458 platted lots covering over 153 square miles. Although it is not entirely clear that all of these lots are vacant or preplatted, a considerable number of them are. Most of the lots are in Lehigh Acres (132,512 lots) and Cape Coral (287,869, but deed restrictions require two lots for one homesite.) Only 3768 lots are considered nondevelopable. County Exhibit 1.B, Future Land Use Element Data and Analysis, page I-1. The Revised Data and Analysis argue that Lee County should be accorded greater planning flexibility than should other local governments in Florida due in part to its "large concentrations of pre-platted lands." The other reasons cited to justify special treatment are the presence of three independent municipalities, a multiplicity of private sewer and water systems lacking centralized control, a complicated land and water configuration, a strong wetlands protection program, a large regional airport, existing and future DRI's, and an "historical pattern of decision-making that has created land use expectations which, in the aggregate, are difficult to reverse and require care and sensitivity in so doing." Joint Exhibit 10.b, page 2. With the exception of the strong wetlands protection program, if one were to exist, the cited factors at best cut both ways in terms of whether, under the growth management law, a local government facing such challenges requires greater planning flexibility. The pre-platted lands factor militates against greater planning flexibility, as these vacant lots represent a potential liability that threaten the viability of a local government's comprehensive plan. Following the discussion of Tables 1 (III C) and 2 (III C), the Revised Data and Analysis admit: The above analysis helps to explain the inability of Lee County and private sector utility companies to provide infrastructure to all of the future urban areas shown on the future land use map. Those services that involve major expenditures for site-specific capital improvements (such as sewer lines, water lines, and major roadways) are the major components of local governments' expenses in providing for new growth; yet they are the very services which are difficult to provide economically when a large supply of land is provided for development. Joint Exhibit 10.b, page 7. The Revised Data and Analysis identify several factors that militate in favor of abandoning the stricter regulatory land-use controls introduced by the 1984 comprehensive plan. 34/ These factors are the presence of numerous private utility suppliers over which Lee County has no regulatory control; the "existing pattern of development within unincorporated Lee County [involving] numerous physically scattered communities of widely varying character," which renders attempts to apply a "single concept" of urban services across a wide spectrum of communities "inappropriate" and "financially infeasible" both as to existing and future development; the unsuccessful implementation of flexible planning strategies in the 1984 plan, such as planned unit developments in which developers and landowners provide a full range of urban infrastructure without expense to Lee County; and, "[p]erhaps the most difficult issue. . . in implementing the 1984 Lee Plan," the "lack of total commitment to the policy of allowing urban-scale development [over 1:1] only where a commitment was actually being made to provide an urban level of infrastructure." Elaborating on the last factor, the Revised Data and Analysis add: "The future land use map has often been seen as just another obstacle rather than as a vehicle towards the creation of desirable development patterns." Joint Exhibit 10.b, pages 30-31. Again, the cited factors do not militate in favor of more relaxed regulatory land-use practices to achieve consistency with the criteria of the growth management law. Addressing the 2010 overlay and the projected population that it is intended to accommodate, the Revised Data and Analysis contend: [DCA] has tried to rigorously defend the concept of enforcing a future land use map having an approximate capacity equal to the projected growth of the county over a given (typically, 20-year) period. This is not possible in Lee County where existing platted and sold lots greatly exceed the 20-year period. In addition, it is also important to know where and how growth will occur well beyond the conventional timeframe of a comprehensive plan. Joint Exhibit 10.b, page 31. However, the Revised Data and Analysis acknowledge the drawbacks of reliance upon a future land use map with a 70-year planning timeframe. The cited disadvantages include the increased likelihood of changes in designations over the intervening 70 years (as compared to shorter periods like 20 years); the premature conversion of agricultural and vacant land to residential uses due to designations that, in 1990, presently permit land uses that will accommodate all projected urbanization through the year 2060; and the possibility that actual population growth will not attain projected population growth, which would result in an even more scattered development pattern that would further increase the cost of servicing the scattered population with required public facilities and services. The Revised Data and Analysis frankly concede that "there is no easy way to exit from the present dilemma." Joint Exhibit 10.b, page 32. A "wholesale rollback" of existing future urban areas, though simple, "would inevitably diminish development rights previously granted by Lee County." The prime examples of previously granted development rights are the "hundreds of thousands of [already-sold] platted lots" and "numerous large-scale developments which have recently been approved based on the existing Lee Plan . . .." Id. Acknowledging the obvious, the Revised Data and Analysis admit that the preceding analysis "indicates clearly that the development potential shown on the Future Land Use Map is greater than the projected population for the year 2010." Id. The Revised Data and Analysis list five steps that Lee County has taken to "bridge the gap between the adopted [70- year] future land use map and the desirability of a 20-year map." Joint Exhibit 10.b, page 32. These steps are reserving about one-third of the Future Urban Areas for privately funded infrastructure; substantially reducing the total acreage of land, including coastal ares designated urban in the 1984 plan; adopting impact fees for fire protection and emergency medical services; adopting the 2010 overlay; and adopting the new Density Reduction/Groundwater Resource designation to reduce densities in sensitive areas to 1:10. As noted above, the encouragement of privately funded infrastructure has not enjoyed much success in Lee County. As noted below, the adoption of the Density Reduction/Groundwater Resource designation with a low density of 1:10 over thousands of acres of the County allows a real separation of urban and rural uses. But, as noted in this section of the recommended order, data and analysis do not support the density designations in the 2010 overlay and thus the question remains open whether even the reduced densities authorized by the 2010 overlay are supported by data and analysis. Baseline and Updated Existing Land Use Data: Data, Assumptions, and Methodology Lee County possesses the baseline data for existing land uses by each land use category for each subdistrict. Lee County's Growth Management Director William Spikowski testified that the County possessed sufficient, baseline existing land use data, broken down by land use category and subdistrict, as of 1987. Tr., page 122. There is no basis in the record for discrediting the 1987 baseline data, 35/ but, for the reasons discussed in the Conclusions of Law, the criterion of supporting data and analysis requires in this instance that such crucial baseline data be included in the Data and Analysis (or the Amended Plan, if the County prefers). For the faster-growing subdistricts, these baseline data were updated to 1990, which is when the 2010 overlay was adopted. Id. The record does not support the finding that, to the exclusion of fair debate, any problems exist with respect to the one-time 1990 update of the baseline data, which may have been produced by the independent consultant who prepared the commercial and industrial studies and initiated Map 1 and the 2010 overlay. The point at which the 2010 overlay finds no support from the data and analysis is in the updating of the existing land use data from the 1987 (or 1990, where applicable) baseline data. The 115 planning subdistricts in Map 16 are formed out of over 800 traffic analysis zones. Part of the reason for using the traffic analysis zones was the detailed data available for small areas of the County. When confronted with the necessity of calculating exactly how much land remains in a specific subdistrict for a specific use, the County has a very poorly defined process whose results are unreliable. The updating process does not involve tracking actual land areas authorized for development in a specific land use under the 2010 overlay. Instead, the County reverts to traffic data, employs undisclosed conversion factors, and reaches a result that may or may not measure the extent of the development that it has authorized in the subdistrict under the 2010 overlay. The conversion process is unreliable and, even if it were reliable, may be measuring merely actual uses, but not already-authorized uses not yet in existence. The unreliability of the updating process by which authorized development under the 2010 overlay is measured was disclosed in the testimony of Mr. Spikowski. The relevant portion of the transcript reads: Q: Okay. Where would I find the--just the vacant acreage that you're proposing to allow to be developed? A: The exact inventory is what I discussed as what we want to have--be able to take off the property appraiser's records for each parcel so that we can have a constantly updated figure. We don't have that available. . . . Tr., page 1294. After discussing a recent rezoning request that evidently involved commercial uses, possibly as part of a mixed- use project, Mr. Spikowski explained that the County elected to do a manual count of existing land uses rather than rely on the traffic data and use a conversion factor. Mr. Spikowski testified in relevant part: A: . . . instead of using the information we used, which is the 1987 inventory done for the traffic model where we had to use conversion factors to take employees back to acres, the right thing to do in that case was to do a manual count, to do what we want to do on the computer. And maybe week after next we're going to have the capability to do that. It had to be done manually. Because we had base projections in here based on the inventory for the '87 traffic model, but it was calculated for commercial based on number of employees, because that's what the traffic model wanted. For us to use it in the overlay we had to convert that back to acres using standard conversion factors, which introduces an element of error. So before you would use this overlay as a regulation of telling somebody they cannot use their land, you really would need to manually check it. Whether that goes to the property appraiser records for those sections or estimate of aerial photography with the Plan amendment, or either way would work. We tried both methods. Q: I really can't do--take the documents that are in evidence and do this calculation because I can't tell what is existing? A: You would have to--If you take the documents in evidence, I believe you'd have to assume that the conversion factors that are county-wide averages are correct for that subdistrict. And again, for general planning purposes we were comfortable doing that, also knowing that we were getting this new system to do it automatically. This is one of the regulatory flaws of the 2010 overlay and that's why it's become so hated in the development community. They say, if you can't give us the exact amount, how can you expect us to live with it? Tr, pages 1294-97. The record is otherwise devoid of evidence describing the methodology by which the acreage allotments by subdistrict will be updated. The role of Map 17, as described by Policy 1.1.1, is to ensure that the County will not authorize development that would exceed relevant acreage totals. There are absolutely no data or analysis supporting the crucial updating process. Nothing in the Amended Plan or the Data and Analysis prevents the County from, if it so chooses, using traffic data (which may possibly ignore authorized uses that have not yet placed vehicles on the road), converting employees to acres by some undisclosed formula (or perhaps residents to acres through the undisclosed historic density adjustment), and determining that the development would not exceed the acreage allotment. It is to the County's credit that, in the rezoning application described by Mr. Spikowski, it manually determined existing land uses in the affected subdistrict to determine if additional acreage were available. This is the "right thing to do" for using the 2010 overlay "as a regulation." But the 2010 overlay is unsupported by data and analysis unless the County restricts itself to a reliable updating process. The alternative updating process, which is based on converted traffic data, cannot be found, on basis of this record, to be any more reliable than reading owls' entrails. The Amended Plan or Data and Analysis must assure that the County will adhere to more reliable means of measuring interim increases in land uses authorized under the 2010 overlay. Even if the County implements a computer- assisted reading of updated property appraiser records, questions remain concerning, for instance, the accuracy of such records as measurements of the extent of development authorized by the County pursuant to the 2010 overlay and the frequency with which these measurements must be updated in order to ensure that acreage allotments are not exceeded. These matters must be described either in the Amended Plan or the Data and Analysis for the designations contained in the 2010 overlay to find support in the data and analysis. As to Issues 3 and 4, for the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the Maps 1, 16 and 17 of the amended future land use map series are not supported by data and analysis. Transportation (Issues 8 and 9) With five exceptions not material to this case, Policy 21.1.1 adopts the Metropolitan Planning Organization's (MPO) 2010 Financially Feasible Map as the Interim Traffic Circulation Plan Map. This color map is Map 3 in the Amended Plan. Policy 21.1.5 explains that the future traffic circulation map series consists of Map 3, the MPO 2010 Needs Plan (Map 4), and a map of ports, airlines, and rail lines (Map 13). The Plan Amendments completely revised Policies 21.1.1 and 70.1.3.6, which adopt minimum peak hour/peak season level of service standards 36/ for roads in Lee County. The adopted level of service standard is D for freeways, such as I-75, and principal arterials under state jurisdiction other than US 41. The Amended Plan assigns a level of service E to all other roads, which are County arterials and collectors, and state minor arterials and others, as well as US 41. Concerning constrained roads, Policy 22.1.3 provides: <<Due to scenic, historic, environmental, aesthetic, and right-of-way characteristics and considerations, Lee County has determined that certain roadway segments will not be widened. Therefore, reduced peak hour levels of service will be accepted on those constrained roads as a trade-off for the preservation of the scenic, historic, environmental, and aesthetic character of the community. These constrained roads are defined in Table 2(b). Growth on those constrained roads will be permitted only within the volume-to-capacity (v/c) ratios established in this plan and only if consistent with the Operational Improvement Program for those constrained roads.>> Table 2(b) identifies nine state and County road segments that are constrained. Policy 22.1.9 sets a maximum volume-to-capacity ratio of 1.85:1 and prohibits the issuance of additional permits for development affecting the constrained segment once that ratio has been reached. Policy 22.1.10 establishes an Operational Improvement Program for each constrained segment. There is no evidence that Lee County has identified as constrained road segments roadways for which capacity-enhancing projects are not appropriately limited by scenic, historic, environmental, aesthetic, or right- of-way factors. Petitioner has failed to prove to the exclusion of fair debate that the treatment of constrained roads in the Amended Plan is inconsistent with any of the criteria of the growth management law. Table 2(a) identifies 26 state and County road segments that are backlogged. The treatment of backlogged roads in the Amended Plan is much more elaborate. Even though these road segments do not, by definition, meet the minimum level of service standards otherwise adopted in the Amended Plan for roads of their functional classifications, the Amended Plan requires neither the addition of greater transportation capacity in the affected area nor the cessation of development impacting the affected area. Instead, the Amended Plan offers a two-part alternative. Under the Traffic District Program, a backlogged road segment may be viewed in the context of a much larger area. Pursuant to the Interim/Operational Improvement Program, interim operational improvements may be undertaken, but are not required to restore the subject road segment to its otherwise applicable level of service standard. As to Issue 8, the Traffic District Program in particular has a clear impact on the consistency of the Amended Plan and Plan Amendments with the criteria of setting level of service standards for roads, ensuring concurrency for roads, and correcting infrastructure deficiencies regarding roads. Policy 22.1.2 states: <<The minimum acceptable levels of service specified in Policy 22.1.1 shall not apply on an interim basis to the backlogged roads identified in Table 2(a). It is the County's intent that those segments will be improved to the identified standard in the shortest period possible, but no later than December 31, 1999. During that interim period, however, growth on those backlogged roads may be permitted if it is consistent with the Traffic District Program (Policy 22.1.5) and Interim/Operational Improvements Program (Policy 22.1.6).>> Policy 22.1.5 provides: <<A Traffic District Program is hereby established for purposes of determining allowable development affecting backlogged roads. On at least an annual basis, Lee County shall estimate the service volumes for all City, County and State collectors, arterials and freeways within each traffic district, and shall determine the district- wide service volume surplus or deficiency. Development permits that affect a backlogged road may still be approved provided that the surplus service volume resulting from the existing surplus service volume, any service volume increases due to committed roadway improvements, and any service volume increases due to interim improvements (reported as a percent of existing service volume on a district basis) is equal to or exceeds the annual percent increase in traffic on a traffic district basis. However, such permits will be issued only if mitigation is provided in accordance with Policy 22.1.13. In the event that the percent service volume growth identified above on a traffic district basis is less than the percent traffic growth in that district, no permits will be issued by Lee County for development that affects the backlogged segment. Such development will be permitted only if capacity enhancement and/or operational improvements are programmed for implementation within the specific District so that the total service volume growth for the District will again be equal to or greater than the District traffic growth. Growth on non-backlogged roads will not be affected. Development that does not affect the backlogged segment will still be allowed. For purposes of calculating service volumes for the Traffic District Program, the following rules apply: Constrained roads (see Table 2(b)) will not be included in the determination of traffic growth and percent service volumes. Percent traffic growth will be based on the last full year of traffic count information. Committed roadway improvements for purposes of this calculation are those improvements under a current construction contract.>> Policy 22.1.6 states: <<For the identified backlogged roads (see Table 2(a)), and as any additional backlogged roads may emerge over time, an Interim/ Operational Improvement Program will be established. The Interim/Operational Improvement Program will include the following types of improvements: Phased improvements, representing a staged implementation of the eventual improvement that is needed to return the backlogged road to the minimum acceptable level of service. Operational improvements, representing short-term measures to improve traffic operations and expand capacity prior to the eventual roadway improvement.>> <<The initial Interim/Operational Improvement Program for backlogged roads is identified in Table 2(c).>> <<On an annual basis, a minimum of five backlogged roads will be studied in detail by Lee County with specific interim/operational improvements identified. Specific interim/ operational improvements shall be incorporated into the County's Capital Improvements Program. Initially, six backlogged roads have been studied in detail including portions of US 41 South, US 41 North, McGregor Boulevard, Gladiolus Drive, San Carlos Boulevard, and Metro Parkway. The selection of specific interim/operational improvements to be constructed in any given year may be adjusted as deemed necessary by Lee County to reflect developer funding opportunities, adjustments to construction schedules, other agency improvement projects and schedules, and alternative improvements of a comparable nature. Specific interim/ operational improvements shall be included in all following updates of the County's Capital Improvements Program to ensure the expeditious construction of those improvements.>> Policy 22.1.8 assures that, "[a]fter December 31, 1999, Lee County shall measure concurrency on all roads on a roadway segment-by-segment basis rather than using the Traffic District Program contained in this plan." Policy 22.1.13 provides: <<All proposed development activity, as part of the concurrency management process, will be reviewed against the Traffic District Program, the Interim/Operational Improvement Program for backlogged roads and the Operational Improvement Program for constrained roads. Development activity affecting backlogged and constrained roads will be required to mitigate its traffic impacts: For that development activity determined not to affect a backlogged and/or constrained road segment, traffic mitigation will consist of payment of Roads Impact Fees and needed intersection improvements at the site entrance(s). For development activity determined to affect a backlogged and/or constrained road segment, traffic mitigation may include, but not necessarily be limited to, the following: Advanced, lump sum payment of Roads Impact Fees to Lee County; Developer construction or financing, with Lee County approval, of one or more of the interim or operational improvements identified in the Interim/Operational Improvement Program for backlogged roads or the Operational Improvement Program for constrained roads; Developer prepares, with Lee County approval, a detailed Interim/Operational Improvement Program for the affected road(s) and funds one or more of the needed interim or operational improvements; and Developer funding of needed road improvements.>> <<Lee County's Concurrency Management Ordinance shall be amended prior to the end of 1990 to specify the impact mitigation procedure and threshold measurements for mitigation purposes.>> The establishment of the Traffic Districts for backlogged roads is left to the Revised Data and Analysis. At page VI-7 of Joint Exhibit 10.a is a map dividing Lee County into nine traffic districts. Six districts cover the entire mainland. The districts approximate the preexisting districts created by Lee County in the implementation of its traffic impact fee program. The service/traffic formula does not operate in isolation. As noted above, the Interim/Operational Improvement Program also requires developer- provided mitigation. However, the required mitigation does not require the developer to restore the road segment to its otherwise applicable adopted level of service standard and may not even affect the road segment impacted by the proposed development. More importantly, the service/traffic formula requires little of the County in addressing the problem of backlogged roads before 2000. A graph on p. VI-10 of Joint Exhibit 10.a provides the necessary data to calculate the service/traffic formula to determine if, under this formula, Lee County would likely be precluded from issuing final development orders due to the presence of backlogged roads. A sample calculation on p. VI-6 of Joint Exhibit 10.a illustrates the calculation. As noted on the graph, the service/traffic formula is inapplicable to two of the island traffic districts, which contain only constrained roads. The service/traffic formula, as a practical matter, eliminates the possibility of concurrency-imposed limitations on development due to the enforcement of level of service standards on nonconstrained roads in any of the six mainland districts. The reason is the vast difference--in each district-- between existing service volume and traffic volume. But this difference bears no relationship to the fact that many road segments are already operating below their otherwise applicable level of service standards and that, under the Traffic District Program, many more road segments, not presently backlogged, will also operate below their otherwise applicable level of service standard prior to 2000. Assuming the same annual increase in traffic volume as presently exists for each mainland district, the service/traffic formula would not require Lee County to build or commit to build any road improvements for over 10 years in Districts 1, 2, 5, and 8, six years in District 4, and seven years in District 3. In other words, the service/traffic formula allows Lee County to continue to issue final development orders impacting backlogged road segments and causing more road segments to become backlogged for at least six years anywhere on the mainland and over 10 years for most of the mainland--even in the absence of any capacity- enhancing transportation improvements. The combination of the service/traffic formula and the vast areas covered by the mainland districts allow the perpetuation of congested conditions on nonconstrained roads in Lee County. The Traffic District Program, including the service/traffic formula, renders completely meaningless the adopted level of service standards for nonconstrained roads and concurrency as it applies to nonconstrained roads. The formula and program also relieve Lee County of any obligation to correct transportation infrastructure deficiencies, or even address such deficiencies. The above-stated findings apply even if Table 2(a) and other provisions of the Amended Plan effectively limited the number and length of backlogged road segments to those listed on Table 2(a). Even worse, however, the Amended Plan does not so limit backlogged roads, and Table 2(a) is merely descriptive of road segments that were backlogged when the Plan Amendments were adopted. As contemplated by the first clause of Policy 22.1.6, "additional backlogged roads may emerge over time." This possibility is repeated in the Revised Data and Analysis, which concede that "backlogged and constrained roads may be added to the list over time." Joint Exhibit 10.a, page VIII-5. By effectively ignoring existing backlogged roads and allowing more roads to become backlogged, Lee County has deferred the adoption of level of service standards and postponed concurrency until the year 2000 when the Traffic District Program ends. When a road segment falls below its otherwise applicable standard, the effect of the Traffic District Program and Interim/Operational Improvement Program is to override concurrency by allowing development impacting the affected road segment to proceed without regard to the availability of capacity-enhancing transportation improvements sufficient to restore the affected roads to their otherwise applicable level of service standards. The short-term prospects for roads in Lee County are discussed in the Revised Data and Analysis. In its discussion of existing roads, the Revised Data and Analysis note: The rapid growth in Lee County's population during the past several years has been accompanied by even more rapid growth in traffic volumes on Lee County roads. According to the [FDOT] . . ., traffic volumes (daily vehicle miles traveled) in Lee County increased by 126 percent from 1979 to 1987, the second highest rate of growth in the State of Florida. This rapid growth in traffic is expected to continue. . . . Generally, historic road construction has not kept pace with traffic growth. However, Lee County has recently embarked on an ambitious roadway improvement program and the pace of construction has accelerated in recent years. Joint Exhibit 10.a, page IV-1. The discussion of the existing road network adds that the existing plus committed roadway network includes major roadway improvements programmed by State and local governments for construction through 1994. Addressing backlogged roads, the Revised Data and Analysis state: Despite the accelerated roadway construction activity in Lee County, many road segments are becoming increasingly congested. Several already meet or exceed the level of service standards established in the Lee Plan. . . . Joint Exhibit 10.a, page V-1. The Revised Data and Analysis describe two exhibits displaying information about traffic volumes. Exhibit V-1 analyzes 1989 traffic volumes with the existing road network. Exhibit V-3 analyzes 1994 traffic volumes with the existing plus committed road network, which reveals that several backlogged segments from Exhibit V-1 have been eliminated and several new backlogged segments have been added. The Revised Data and Analysis explain that Exhibit V- 7, which lists all of the backlogged roads on Table 2(a), shows which backlogged roads will be "relieved to some extent by committed improvements." Joint Exhibit 10.a, page V-3. The Revised Data and Analysis acknowledge that "there are no major improvements programmed for several backlogged roads in Lee County." Id. Exhibit V-1 shows that, for 1989, there were 26 backlogged road segments for a total of 27.3 miles. 37/ Of these, 18 segments for 18.2 miles were under state jurisdiction, rather than County jurisdiction. Exhibit V-3 shows that, for 1994, based on the existing plus committed road network, there will be 28 backlogged road segments for a total of 34.2 miles. The total for state backlogged roads is projected to rise even more rapidly: 22 road segments for a total of 29.4 miles. As indicated by the text, Exhibit V-7 shows that several backlogged roads listed in Table 2(a) are not scheduled to receive committed improvements (presumably through 1994). Recommended improvements to eliminate backlogged conditions (Joint Exhibit 10.a, page VII-4) are shown on Exhibit VII-7. However, nothing in the Amended Plan commits the County to undertaking these projects. The purpose of Exhibit VII-7 is to show the work needed over a ten-year period to restore backlogged roads to their otherwise applicable level of service standards. Some of the projects would be outside of the five-year period covered by the schedule of capital improvements on page VII-21 of the Amended Plan. But, in addition to the fact that Lee County does not commit itself in the Amended Plan to undertaking this work, nothing in Exhibit VII-7 addresses those road segments that become backlogged at a later date. As to Issue 8, Petitioner has proved to the exclusion of fair debate that, as to all nonconstrained roads not under the jurisdiction of any municipality, the Amended Plan is inconsistent with the criteria of setting level of service standards, ensuring concurrency, and correcting existing infrastructure deficiencies. As to Issue 9, Petitioner argues that the Plan Amendments regarding transportation are not financially feasible because the capital improvement schedule does not identify a current source of funding for all of the road improvements described in the Plan Amendments as "necessary or desirable." It is not entirely clear what Petitioner means by road improvements that are described as "necessary or desirable." These words correspond to the MPO Needs Plan and MPO Financially Feasible Plan. Of course, these plans, which are adopted in the Amended Plan as Maps 4 and 3 respectively, pertain to the year 2010, and the five-year capital improvements schedule properly pertains only to 1995. Petitioner may mean by "necessary and desirable" that the road projects do not adequately address backlogged roads, so as to allow the Traffic District Program to attain consistency. This issue has been addressed in connection with Issue 8. Except to the extent that the financial feasibility of transportation improvements has been addressed in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate that the transportation capital projects are inconsistent with the criterion of financial feasibility. Miscellaneous Minimum Criteria (Issues 1, 10, and 12) As to Issue 1, nothing in the Plan Amendments or Revised Data and Analysis addresses directly the issue of private potable water suppliers. The Plan Amendments create a new future land use category, Density Reduction/Groundwater Resource. The Revised Data and Analysis discuss four studies or reports focusing on the aquifers in Lee County and aquifer recharge areas. But the focus of these material is general and on hydrogeologic supplies, rather than on the specific entities presently involved in producing potable water. As to Issue 10, nothing in the Plan Amendments or Revised Data and Analysis addresses coordination between Lee County and its Amended Plan and the Charlotte Harbor Management Plan. However, the separate issue whether the Plan Amendments are consistent with the provisions of the Charlotte Harbor Management Plan is addressed below. As to Issue 12, the only provisions amended by the Plan Amendments are Policies 2.2.2 (primarily third factor and flush language), 15.2.2, 38.1.6, 38.4.1, and 38.4.3, as well as the 2010 overlay. The remaining objectives and policies were unchanged by the Plan Amendments. Policy 2.2.2 states: Map 1 of Tthe Future Land Use Map <<series>> indicates the uses and density ranges that will ultimately be permitted on a given parcel. However, it is not a guarantee that such densities or uses are immediately appropriate, as the map provides for the county's growth over the coming 70 years. During the rezoning process the Board of County Commissioners will balance the overall standards and policies of this plan with [[two]] <<three>> additional factors: --whether a given proposal would further burden already overwhelmed existing and committed public facilities such that the approval should be delayed until the facilities can be constructed; <<or>> <<--whether a given proposal is for land so far beyond existing development or adequate public facilities that approval should be delayed in an effort to encourage compact and efficient growth patterns.; or>> <<--whether a given proposal would result in unreasonable development expectations which may not be achievable because of acreage limitations on the "Year 2010 Overlay" (see Policy 1.7.6 and Maps 16 and 17).>> <<In all cases where rezoning is approved, such approval does not constitute a determination that the minimum acceptable levels of service (see Policy 70.1.3) will be available concurrent with the impacts of the proposed development. Such a determination must be made prior to the issuance of additional development permits, based on conditions which exist at that time, as required by Lee County's concurrency management system.>> The 2010 overlay designates the proposed location of various future land uses in Lee County. Map 1 shows where certain land uses may generally be located for the next 70 years. Maps 16 and 17 limit these land uses for the next 20 years and, to some extent, show where these land uses may be permitted during that timeframe. Although the specific locations of land uses prior to 2010 are not disclosed by Maps 16 and 17, the generalized locations are. There is nothing vague or ambiguous in Policy 2.2.2. Misciting Policy 2.1.2 as Policy 2.2.2, Petitioner argues in her proposed recommended order that certain language is vague, but she did not plead Policy 2.1.2, which, in any event, was unchanged by the Plan Amendments. Objective 15.2 provides: COMMUNITY FACILITIES. Within funding constraints, the county shall attempt, during 1989, 1990, and 1991, to incorporate the following recommendations of the ad-hoc Bonita Study Group into the planning process for public facilities. Policy 15.2.2 states: <<IRRIGATION WELLS. Bonita Springs (as defined in this plan) is hereby declared a critical area for future potable water supply, based on evidence that withdrawals from the main potable aquifer, the lower Tamiami aquifer, are approaching or exceeding the maximum safe yield. In response to this designation, the county shall amend current regulations to provide that new irrigation well permits in Bonita Springs may not utilize the main potable water source. (Also see Policy 32.1.9 for new permit requirements for wells in Lehigh Acres, and Policy 2.4.3 for special requirements for amendments to the Future Land Use Map.)>> Policy 15.2.2 is not vague, nor does Petitioner argue grounds for vagueness as to Policy 15.2.2 in her proposed recommended order. Policy 38.1.6 provides: <<Within one year after the adoption of this policy, Lee County shall amend its land development regulations to require that proper stormwater management systems be installed when land is being redeveloped. Appropriate exemptions shall be provided to this requirement for individual residential structures and for historic districts. The regulations may also provide modified stormwater management standards for publicly sponsored projects within community redevelopment areas (as defined by Chapter 163, Part III, Florida Statutes). However, this policy shall not be interpreted so as to waive any concurrency level-of-service standards.>> Petitioner argues in her proposed recommended order that the words "proper," "appropriate," and "modified" lack sufficient definition so as to render Policy 38.1.6 vague and ineffective. The terms are sufficiently definite to provide enforceable guidance to the County in the adoption of implementing land development regulations. The word "proper" incorporates the stormwater level of service standards stated at Policy 38.3.1. The word "appropriate" applies to reasonable exceptions to the stormwater level of service standards for individual residences and historic districts. The word "modified" creates a reasonable exception to the stormwater level of service standards for publicly sponsored community redevelopment areas. There are communities in Lee County, such as Harlem Heights, where the housing is seriously substandard and the community is eligible for publicly sponsored redevelopment, as well as interim assistance through such projects as Habitat for Humanity. Evidently due to relatively low elevations, at least when the housing is compared to adjacent roadways, the Harlem Heights community also suffers from a seriously inadequate (and possibly nonexistent) stormwater management system. Ideally, all areas within Lee County should be subject to, and receive the benefits of, effective stormwater management. However, communities desperately in need of publicly funded redevelopment, such as Harlem Heights, present a special challenge. As a practical matter, the treatment of publicly sponsored projects within community redevelopment areas by Policy 38.1.6 represents a fair accommodation of competing policy demands in providing stormwater management and decent, affordable housing. Objective 38.4 states: <<CRITICAL AREAS. The Six Mile Cypress Basin (as defined in Ordinance #83-5 as amended) and the Density Reduction/Groundwater Resource land use category are both identified as "critical areas for surface water management." By December 31, 1990, the county shall adopt additional regulations to protect the unique environmental and water resource values of these areas.>> The policy cluster under Objective 38.4 provide: <<Policy 38.4.1: The county shall amend the Six Mile Cypress Ordinance to reduce or eliminate the exemptions allowable in the ordinance.>> <<Policy 38.4.2: The county shall conduct public hearings to consider amending the boundaries of the Six Mile Cypress Ordinance to include all land within the Density Reduction/Groundwater Resource land use category.>> <<Policy 38.4.3: The county shall amend the Wetlands Protection Ordinance (#86-31), the Tree Protection Ordinance (#86-34), and the Development Standards Ordinance (#82-42 as amended) to reduce or eliminate the exemptions for agricultural uses and small subdivisions within the "critical areas for surface water management" and shall subject these uses to an appropriate review process.>> The Revised Data and Analysis explain that Lee County has adopted over the years various environmental ordinances, including the Six Mile Cypress Ordinance, Wetlands Protection Ordinance, Tree Protection Ordinance, and Development Standards Ordinance. The Revised Data and Analysis note that exemptions have been adopted that can reduce the effectiveness of these ordinances in "'critical areas for surface water management.'" Joint Exhibit 10.c, page VI-2. Reviewing the exemptions to the Six Mile Cypress Ordinance, the Revised Data and Analysis observe that the exemptions should be revised so that, under the ordinance, the County must "consider all impacts to surface water flow." Joint Exhibit 10.c, page VI-3. As for the Wetlands Protection Ordinance, the Revised Data and Analysis conclude that its expansion "is probably necessary to limit the impact of clearing of wetlands for agricultural purposes." Id. The Revised Data and Analysis observe that amending the Tree Protection Ordinance would reduce incentives to remove trees and understory vegetation, which assist in water quality and quantity considerations in stormwater management. The Revised Data and Analysis note that the Development Standards Ordinance exempts small subdivisions, whose impervious surfaces alter surface water flow. Petitioner correctly argues in her proposed recommended order that the reduction or elimination of exemptions by an unstated amount or without regard to a stated objective is vague and ineffective. However, the assurances involve only land development regulations that, in the context of a limited plan- amendment challenge, do not play a significant role in the outcome of the case. The vagueness is thus harmless. Contrary to Petitioner's assertions, the 2010 overlay is not confusing, nor does it fail to depict the general distribution, extent, and location of the required land use categories. Although more conventional future land use maps are more precise in rendering the location of future land uses, the imprecision of the 2010 overlay is not inconsistent with the criteria of the growth management law. As noted above, the shortcomings of the 2010 overlay result from the lack of crucial supporting data and analysis. Internal Consistency (Issue 13) Issue 13 alleges that the Amended Plan is internally inconsistent. Petitioner argues that the Traffic Circulation Element and transportation improvements contained in the five-year schedule of capital improvements are inconsistent. She also argues that Goal 2, which requires financial feasibility, and the Traffic Circulation Element, including the financially feasible transportation map, are inconsistent. She asserts the same grounds as she does in connection with Issue 9, which has been discussed above. Based on the findings set forth in connection with Issue 9, and subject to the findings set forth in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate any inconsistency between the Traffic Circulation Element and Goal 2 or the transportation improvements contained in the five-year schedule of capital improvements. As noted above, Policy 1.7.6 requires that final development orders and building permits be consistent with the 2010 overlay, including Map 17. Policy 1.7.6 does not impose this requirement upon rezonings. Petitioner asserts that Policy 1.7.6--particularly its omission of rezonings--is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a) of the Amended Plan. Petitioner argues in her proposed recommended order that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2 because of the emphasis on zoning in the two objectives. The objectives state: DEVELOPMENT LOCATION. Contiguous and compact growth patterns shall be promoted through the rezoning process to contain sprawl, minimize energy costs, conserve land, water and natural resources, minimize the cost of services, and reverse typical development patters where large tracts of land are bypassed in favor of development more distant from services and existing communities. DEVELOPMENT TIMING. Direct new growth through the rezoning process to those portions of the Future Urban Areas where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created. Goal 12 is: "To ensure that appropriate water, sewer, traffic, and environmental review standards are considered in reviewing rezoning applications and are met prior to issuance of a county development order." Section XIII(a) of the Amended Plan adds in part: "Upon adoption of this amended plan, all development and all actions taken in regard to development orders shall be consistent with the plan as adopted." Given the subordinate role of zoning to the designations contained in the Amended Plan and future land use map series, the conflicts perceived by Petitioner either do not exist or, if they exist, are harmless. The Amended Plan governs. Zoning is of such inferior importance that any conflict will be resolved in favor of the Amended Plan. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a). Petitioner asserts that Policy 2.2.2 and Section XIII(a) are inconsistent. As noted above, Policy 2.2.2 identifies the factors that will govern rezonings. This policy explicitly subjects rezoning to the concurrency requirements of the Amended Plan. Nothing in this policy attempts to allow rezoning to override the acreage allotments contained in the 2010 overlay and implemented by Policy 1.1.1. Although it would have been preferable for Policy 2.2.2 to acknowledge the acreage allotments as limitations upon land uses that can be authorized, the subordinate role of zoning, as compared to land use designations in the comprehensive plan, emerges clearly from the Amended Plan as a whole. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 2.2.2 and Section XIII(a) are inconsistent. Petitioner alleges that the amended future land use map is inconsistent with Goals 71, 75, 77, and 79; Objectives 2.3, 74.1, 75.1, 77.3, 77.4, 79.1, and 87.1; and Policies 77.2.2, 77.4.4, 77.11.5, and 83.1.4. Goal 71 is to: "To protect the public from the effects of natural and technological hazards through county emergency plans and programs." Objective 74.l provides: ENVIRONMENTALLY CRITICAL AREAS. By 1990, land within coastal area environmentally critical areas, including present Resource Protection Areas and Transition Zones and Rare and Unique upland habitats, shall be regulated and managed so as to conserve and enhance the natural functions of these critical areas. Goal 75 is: "To protect human life and developed property from natural disasters." Objective 75.l adds: DEVELOPMENT IN HAZARD AREAS. Development (other than minor structures) within the V Zones shall not be allowed seaward of the Coastal Construction Control Line as it exists in 1988; new development on barrier islands shall be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion shall not be permitted; and allowable densities for undeveloped areas within A Zone areas will be considered for reduction. Goal 77, Objectives 77.3 and 77.4, and Policies 77.2.2, 77.4.4, and 77.11.5 have been set forth above. 38/ Goal 79 is: "To provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.l adds: EVACUATION. By 1995, evacuation times will be restored to 1987 levels using the 1987 Southwest Florida Regional Hurricane Plan Update as guidance; and by 2010, the clearance time portion of evacuation time will not exceed 18 hours. Policy 83.1.4 provides: Lee County shall protect and conserve the following environmentally sensitive coastal areas: wetlands, estuaries, mangrove stands, undeveloped barrier islands, beach and dune systems, aquatic preserves and wildlife refuges, undeveloped tidal creeks and inlets, critical wildlife habitats, benthic communities, and marine grass beds. Objective 87.1 states: WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems. Petitioner argues in her proposed recommended order that the future land use map series is inconsistent with Goals 71 and 75 because the Amended Plan increases densities in the hurricane vulnerability zone in the North Bonita Springs area and fails to coordinate land use designations with evacuation times and shelter space capacities. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goals 71 and 75. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 74.1, which requires the County, by 1990, to "conserve and enhance the natural functions" of environmentally critical areas in the coastal area. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 74.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 75.1, which requires the County to consider reducing allowable densities in the hurricane vulnerability zone. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 75.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Goal 77, which requires the County to manage the County's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal diversity, water quality, and natural surface water characteristics. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Goal 77, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goal 77. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objectives 77.3 and 77.4, which require the County to "maintain and enhance" current fish and wildlife diversity and existing populations and distributions of listed species. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objectives 77.3 and 77.4, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objectives 77.3 and 77.4. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policies 77.2.2, 77.4.4, and 83.1.4, which call for the protection of unique or important natural plant communities, protection of critical habitats for the preservation of listed species, and protection of critical wildlife habitats in the coastal area, respectively. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with these policies, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by these policies. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policy 77.11.5, which provides in part: "Corridors for regulatory and public acquisition purposes shall be designated in [black bear and Florida panther] use areas." Added by the Plan Amendments, Policy 77.11.5 is not inconsistent with the Plan Amendments concerning the future land use map series. The orientation of Policy 77.11.5 is prospective and does not require immediate implementation through amendment of the future land use map series to show corridors that are subject to additional regulatory controls or are eligible for public acquisition. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 79.1, which requires the County, by 1990, to restore evacuation times to 1987 levels by 1995 and to ensure a maximum clearance time of 18 hours by 2010. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 79.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 87.1, which requires the County, by 1990, to ensure sufficient quantity and quality of water to meet present and projected demands of all consumers and the environment. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 87.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1. Consistency with Charlotte Harbor Management Plan (Issue 14) The Charlotte Harbor Management Plan, which was adopted June 5, 1981, is a resource management plan prepared and adopted pursuant to Section 380.045, Florida Statutes. Lee County is within the jurisdiction of the Charlotte Harbor Management Plan. Under "regulatory actions," there are 12 objectives in the Charlotte Harbor Management Plan. Beneath each objective are implementation actions that pertain to specified federal, state, regional, and local agencies. Twenty-two implementation actions apply to local governments, such as Lee County. Objective 4 of the Charlotte Harbor Management Plan provides: "Future development in floodplain areas is to occur only in a manner consistent with the function of floodplains." In her proposed recommended order, Petitioner argues that the Amended Plan lacks specific provisions identifying the functions of floodplains and requiring new development to be consistent with floodplain functions. Petitioner also argues that the Amended Plan fails to coordinate densities and intensities with tidal floodplains. Except for the stormwater level of service standard, which is discussed below in connection with Objective 5, nothing in the Amended Plan directly addresses floodplains. The floodplain map--Map 9--was part of the future land use map series in the Plan and was unchanged by the Plan Amendments. In general, Petitioner argues only that the Amended Plan fails to deal effectively with floodplain issues. The Plan Amendments substantially change designated land uses by applying the new Density Reduction/Groundwater Resource designation to thousands of acres in the County. The correspondingly reduced densities and restricted intensities, especially as compared to previously authorized land uses, are much more consistent with floodplain functions. Objective 5 of the Charlotte Harbor Management Plan requires: "The stormwater and drainage systems of the Charlotte Harbor area are to function in a manner that protects and preserves the Charlotte Harbor estuarine system." The second implementation action under Objective 5 requires local governments to: establish plans and regulations requiring post development runoff conditions to approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin. The summary of the problem addressed by Objective 5 states: Improperly designed and maintained stormwater/ drainage systems have affected the quality and quantity of freshwater flowing into area water bodies. These systems have transported various pollutants, including nutrients, sediments, pesticides, heavy metals, and animal waste to local waters. While some of these waters have recognized water quality problems, most of the area's valuable water resources are still of good quality. However, with an expected doubling of population in the next twenty years, preventative action is necessary to prevent further degradation. In addition to the quality of freshwater inflows, the sufficient quantities of freshwater corresponding with the natural hydroperiod are necessary to maintain the productivity of the estuaries. While the flows necessary to meet estuarine needs are unknown, continued development of stormwater/ drainage systems which alter the rate and hydroperiod of runoff may adversely impact estuarine productivity. Petitioner Exhibit 2, page 5. Objective 38.3 of the Amended Plan is to "[r]evise by 1994 the surface water management level-of-service standards for basins and sub-basins identified in the Surface Water Management Master Plan." The Surface Water Management Master Plan was to have begun in 1989, according to Policy 38.1.1. Policy 38.3.1 of the Amended Plan provides: As an interim measure, the following surface water management standards are adopted as minimum acceptable levels of service for unincorporated Lee County . . .: <<Existing>> [[Public]] Infrastructure The [[public stormwater]] <<existing>> [[trunk]] <<surface water>> management system <<in any basin>> in the unincorporated areas of the county, [[including drainage districts]] shall be sufficient to prevent the flooding of <<designated evacuation routes (see Map 15) from the 25-year, 3-day storm event (rainfall)>> [[the public roads to a depth of 12 inches or greater]] for more than [[3 consecutive days]] <<24 hours>>. Regulation of Private <<and Public>> Development Surface water management systems in <<new>> private <<and public>> developments <<(excluding widening of existing roads)>> shall <<be designed to detain or retain excess stormwater to match the predevelopment discharge rate for>> [[meet or exceed]] the <<25-year, 3-day storm event (rainfall)>>. [[minimum standards of the South Florida Water Management District as set forth in the Permit Information Manual, Volume IV, Management and Storage of Surface Water (West Palm Beach, 1986), as may be amended from time to time, and shall meet local regulations in order]] <<This standard is designed>> to minimize <<increases of>> discharges to public water management infrastructure (or to evapotranspiration) that exceed historic <<rates>> [[natural volumes]], to minimize change to the historic [[natural]] hydroperiod of receiving waters, to maintain the quality of receiving waters, [[at or above the applicable minimum standards set forth in Chapter 17-3, Florida Administrative Code ("Water Quality Standards," Florida DER)]], and to eliminate the disruption of wetlands and flow-ways, [[the]] <<whose>> preservation [[of which]] is deemed in the public interest. The implementation action requiring local governments to require that postdevelopment runoff approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin is the only implementation action involving local governments that imposes specific performance standards. The analysis contained in the Charlotte Harbor Management Plan clearly links the health of the estuarine system to preservation of natural rates and hydroperiods of runoff. Obviously, degraded water quality or alteration of drainage basin also impacts the estuarine system. Policy 38.3.1.B, which underwent substantial revisions by the Plan Amendments, imposes a single requirement upon development in terms of runoff: postdevelopment rate must match predevelopment rate for the 25-year, 3-day storm event. It is irrelevant that this is an interim level of service standard. The stormwater level of service standard contained in Policy 38.3.1.B deviates from Objective 5 of the Charlotte Harbor Management Plan in three important respects. First, it fails to incorporate water quality, basin, and hydroperiod into the performance standards of the level of service standard. Second, it qualifies even the rate standard by a specified storm event of specified duration, even though Objective 5 of the Charlotte Harbor Management Plan is not so limited. Regardless of the storm, Objective 5 imposes the requirement that postdevelopment conditions as to these four crucial factors approximate natural conditions. Obviously, natural conditions probably involve considerable flooding during and after the 100-year, 3-day storm; but the effect of the limitation in Policy 38.3.1.B is to allow postdevelopment conditions to exceed natural conditions once the specified storm has been exceeded. Third, the stormwater level of service standard contained in Policy 38.3.1.B ignores redevelopment, including but not limited to road-widening projects. When addressing redevelopment in particular, the postdevelopment conditions must match natural conditions, not merely predevelopment conditions. Lee County argues that Policy 38.3.1.B addresses factors in addition to runoff rate. The second sentence of Policy 38.3.1.B imposes no additional requirements; it merely explains the intent of the County in imposing the rate requirement. By regulating the runoff rate, Policy 38.3.1.B may partly address water quality and hydroperiod issues; retained or detained postdevelopment stormwater may be of higher quality and may more closely approximate natural hydroperiods than unretained or undetained postdevelopment stormwater runoff. But these are indirect benefits of a performance standard addressing exclusively postdevelopment runoff rate. The County's stormwater standard may reduce change to hydroperiods and improve water quality--over undetained or unrestrained postdevelopment stormwater--but it does not impose the performance standards of unaltered hydroperiod, water quality, and basin. Nor, more importantly, will the County's stormwater standard assist in meeting the crucial objective of the Charlotte Harbor Management Plan to regulate stormwater and drainage to protect and preserve the Charlotte Harbor estuarine system, which is the primary focus of the resource management plan. Petitioner has thus proved to the exclusion of fair debate that Policy 38.3.1.B is inconsistent with Objective 5 and the Charlotte Harbor Management Plan, construed as a whole. 39/ Objective 8 of the Charlotte Harbor Management Plan provides: "The barrier islands and beaches of the Charlotte Harbor area should be managed as a whole, recognizing that any developmental activity potentially affects the processes of the entire barrier beach, barrier island, and pass systems." The second implementation action under Objective 8 is for the Florida Department of Natural Resources, Florida Department of Environmental Regulation, and U.S. Army Corps of Engineers to discourage the dredging of new channels and addition of more passes to the existing pass maintenance program. This implementation action does not apply to local governments. Petitioner has therefore failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with Objective 8 of the Charlotte Harbor Management Plan. Objective 10 of the Charlotte Harbor Management Plan provides: Future land development decisions by local government should be in accord with the goals and objectives of the Charlotte Harbor Committee, and existing platted areas should also be encouraged to develop in accord with these goals and objectives. The third implementation action under Objective 10 requires local governments and the Florida Department of Transportation to ensure that: "Highway corridor planning for undeveloped areas . . . consider[s] suitability of adjacent land for urbanization and directing [sic] construction away from environmentally sensitive areas." Petitioner argues in her proposed recommended order that Polices 27.2.1 and 27.2.2 of the Amended Plan are insufficient in terms of implementing the cited portion of the Charlotte Harbor Management Plan. However, these provisions were in the Plan and were unchanged by the Plan Amendments. For the reasons set forth in connection with Petitioner's challenge based on Objective 4 of the Charlotte Harbor Management Plan, nothing in the Plan Amendments addresses this aspect of transportation. Objective 11 of the Charlotte Harbor Management Plan provides: "Mitigation and prevention of development impacts should be initiated during site planning and site alteration processes." The second implementation action requires local governments to: require site development plans, provide for the maintenance of habitats for wildlife species, as listed by the Federal and State Endangered Species Acts, tree protection [sic], and prevent the introduction or spread of noxious vegetation. Petitioner argues in her proposed recommended order that Policy 77.4.1 of the Amended Plan, which was substantially amended by the Plan Amendments, fails to coordinate with the implementation action under Objective Petitioner asserts that Policy 77.4.1 is deficient because it refers only to the habitats of protected species listed by the Florida Game and Fresh Water Fish Commission and not those listed by the U.S. Fish and Wildlife Service. There is no evidence of any material divergence between the state and federal lists of protected wildlife species. Specific objectives in the Amended Plan address loggerhead sea turtles, southern bald eagles, West Indian manatees, gopher tortoises, red-cockaded woodpeckers, wood storks, Florida panthers, and black bears. Without a showing of some discrepancy between the state and federal wildlife lists, especially in the face of numerous provisions in the Amended Plan explicitly addressing specific wildlife species, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Objective 11 of the Charlotte Harbor Management Plan. Consistency with Regional Plan (Issue 15) The Southwest Florida Regional Plan (Regional Plan), which covers Lee County, discusses at length the problem of platted lands. Map 3 depicts vast areas of platted lands in the Lehigh Acres area of unincorporated Lee County and Cape Coral. In relevant part, the discussion states: Southwest Florida has approximately 1.1 million existing platted lots . . .. Most of these platted and subdivided lots, although undeveloped, have been sold to individual owners who have expectations of building. Regretfully, these platted areas often have not reflected the most efficient use of land. Also, due to their location, the provision of infrastructure access and service will be prohibitively costly. Further, aging of most of these subdivisions has resulted in deterioration and dilapidation of existing roads and drainage systems. Finally, many needed urban uses are not adequately provided for within these extensive plats. * * * . . . effective concentration of development activities and providing incentives for contiguous development are alternative methods of planning which continue to be discussed and debated within the Region. Although these techniques would have a positive effect on land use patterns, they conflict with development desires of lot owners who purchased property previously reviewed and approved by the local government. Efforts have been made to ensure that development is compatible with available and planned infrastructure services. Still, the problems of previously subdivided, yet still undeveloped, land remain; such problems are particularly severe for planning activities that must meet the 1985 Growth Management Act requirements, since these developments generally do not meet current regulations. As growth continues, Southwest Florida will be under greater pressure to provide services to new homes, businesses, and service centers. These platted areas will be popular, affordable home sites. Providing services to these lots, however, will become an increasing burden. Additionally, the Region will have to consider providing alternative land use choices to current lot owners where development would not be desireable or cannot have services provided at the ultimate buildout densities. Joint Exhibit 11.b, pages 16-8 to 16-9. Regional Plan Goal 16 states: By 2010, the number of vacant platted lots in areas without adequate infrastructure or in areas not designated for urban development in Southwest Florida will be reduced by 30%. Goal 16 is an integral part of the Regional Plan. Effective land use planning may be impossible without addressing the problems presented by thousands of acres of vacant, prematurely platted lands. There is evidence that Lee County is addressing the problem. It has utilized vacant, preplatted lots to some extent in an affordable housing program. Lehigh Corporation, which is evidently a major developer in the Lehigh Acres area, has bought back some lots and/or exchanged better lots for more outlying and less developable lots. However, at the same time, Lehigh Corporation is subdividing more property in the Lehigh Acres area. It is unclear whether Lee County will find itself with more or less vacant, preplatted lots by 2010. More likely, it will be less for a variety of reasons, but how much less is left entirely to conjecture based on the present record. Petitioner's argument in her proposed recommended order is based on the acreage remaining vacant in 2010 in planning subdistricts 601- 11, 704, and 706, which constitute much if not all of Lehigh Acres. However, the record does not establish how much of this acreage is already platted or how much of the vacant acreage remaining in 2010 will by then have been platted. For these reasons, as to Issue 15, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the Regional Plan. Consistency with State Plan (Issue 16) Petitioner argues in her proposed recommended order that the Amended Plan is inconsistent with Section 187.201(8)(b)2 and 12, (10)(b)10, (16)(b)2, and (18)(b)3. Section 187.201(8)(b)2 is to: "Identify and protect the functions of water recharge areas and provide incentives for their conservation. Petitioner argues in her proposed recommended order that the Amended Plan does not protect the functions of water recharge areas. She asserts that Policies 85.1.2 and 87.1.1, which generally require the protection of surface and groundwater quality and natural recharge systems, are vague and ineffective. The Plan Amendments did not modify Policies 85.1.2 or 87.1.1. The Plan Amendments added the Density Reduction/Groundwater Resource designation to thousands of acres of land, together with Policy 1.4.3, which states: <<The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas.>> The Plan Amendments also added Policy 39.1.4, which provides: <<The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category.>> The Plan Amendments revised Policy 41.2.2, which states: <<A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3.>> Policies 15.2.2 and 32.1.9, which were added by the Plan Amendments, impose special land use restrictions in the Bonita Springs and Lehigh Acres areas, based on potable groundwater considerations. Policy 2.4.2, which was also added by the Plan Amendments, concludes by offering additional protection to these areas and all areas designated Density Reduction/Groundwater Resource: <<All proposed changes to the Future Land Use Map in critical areas for future potable water supply (Bonita Springs as described in Policy 15.2.2; Lehigh Acres as described in Policy 32.1.9; and all land in the Density Reduction/Groundwater Resource land use category) shall be subject to a special review by the staff of Lee County and the South Florida Water Management District (SFWMD). This review will analyze the proposed land uses to determine the short- term and long-term availability of irrigation and domestic water sources, and will assess whether the proposed land uses would cause any significant impact on present or future water resources. If the Board of County Commissioners wishes to approve any such changes to the Future Land Use Map, it must make a formal finding that no significant impacts on present or future water resources will result from the change. (SFWMD's recommendations or findings under this policy shall not be construed to restrict or otherwise encumber their authority to issue or deny water-use permits as may be required by law.)>> The Revised Data and Analysis survey recent hydrologic investigations for all relevant aquifers. The investigations amply support the Density Reduction/Groundwater Resource designations. The Data and Analysis provide no basis for questioning the consistency of the provisions of the Amended Plan in protecting the functions of water recharge areas with similar provisions in the State Plan. Largely due to the adoption of the Plan Amendments, especially the new Density Reduction/Groundwater Resource designation, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(8)(b)2. Section 187.201(8)(b)12 is to: "Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." This is an integral part of the State Plan and is linked to the protection of surface waters including estuaries, drainage and floodplains, and various other natural resources. For reasons already discussed in connection with Objective 5 of the Charlotte Harbor Management Plan, Petitioner has proved to the exclusion of fair debate that Policy 38.3.1.B, which sets an interim stormwater level of service standard, is inconsistent with Section 187.201(8)(b)2 with respect to the omission of hydroperiod, basin, and quality performance standards; the addition of a qualifying storm event; and the exclusion of redevelopment. 40/ A level of service standard is a vital provision in a comprehensive plan because the standard is typically clear and easily enforceable. The stormwater management provisions in the State Plan play a crucial role in attaining consistency with numerous provisions of the State Plan. For these reasons, Policy 38.3.1.B represents an inconsistency with the State Plan construed as a whole. The inconsistency between Policy 38.3.1.B and the State Plan is limited to the failure of Policy 38.3.1.B: 1) to set a stormwater level of service standard throughout Lee County requiring postdevelopment conditions to be equal to or better than natural conditions in terms of water quality, hydroperiod, and basin, as well as rate; 2) to impose the stormwater level of service standard throughout Lee County regardless of the storm event; and 3) to impose the stormwater level of service standard on all development and redevelopment in Lee County. 41/ Petitioner argues in her proposed recommended order that the inconsistency with the State Plan extends to the failure of the Amended Plan to fund fully the stormwater management plan. Petitioner has failed to prove to the exclusion of fair debate that consistency with Section 187.201(8)(b)12 and the State Plan requires the above-described funding. Section 187.201(10)(b)10 is to: "Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation." Petitioner argues that the Amended Plan is not consistent with the State Plan due to the failure of the future land use map series to designate rare and unique habitats for densities and intensities that are suitable for the vegetative and habitat values of certain areas, especially the North Bonita Springs area. As noted above in connection with the discussion of the 2010 overlay, the Plan Amendments do not directly reintroduce the issue of land use suitability. A timing device, the 2010 overlay is quantitatively oriented. With the exception of the Density Reduction/Groundwater Resource designation, which tends to enhance suitability, nothing in the Plan Amendments directly raises the suitability issue. Provisions contained in the Plan Amendments enhancing the coordination of future land use designations with valuable vegetative communities and, particularly, wildlife habitat are Objectives 77.10 and 77.11 and their policy clusters. These provisions have already been discussed. 42/ Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(10)(b)10. Section 187.201(18)(b)3 is to: "Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents." Petitioner objects in her proposed recommended order to the sufficiency of Objective 70.3, which requires that "new development pays at least 80% of the capital costs of public infrastructure directly attributable to that new development." Petitioner argues that Policy 2.3.2 is also insufficient because it merely requires that the "cost for the provision and expansion of services and facilities that benefit new development shall be borne primarily by those who benefit." Objective 70.3 and Policy 2.3.2 were unchanged by the Plan Amendments. Section 187.201(16)(b)2 is to: "Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats." The Amended Plan is no model of urban containment. Choosing a less regulatory approach to land use planning, although involving considerably more intervention than has traditionally prevailed, Lee County has repeatedly and unconvincingly argued in the Revised Data and Analysis that various conventional planning strategies are unsuitable for Lee County. Some planning alternatives proffered by Lee County have failed to achieve consistency with the growth management law. Some planning alternatives have achieved consistency, and some planning alternatives have been spared review by the focus of the present recommended order on the Plan Amendments and Revised Data and Analysis and the focus of the recommended order in DOAH Case No. 89-1843GM on the settlement agreement. It would be a daunting task to try to determine the effect of the Amended Plan upon urban sprawl. Without the density allocation ratio, it is an impossible task. If the ratio were relatively high, provisions of the Amended Plan would have to bear a greater burden in ensuring efficiency in the use of land and provision of public facilities and the protection of natural resources and agriculture. Without a density allocation ratio, relevant provisions of the Amended Plan cannot be adequately evaluated in terms of their relationship to urban sprawl. It suffices for the purpose of determining consistency with the State Plan that the Plan Amendments assigned the Density Reduction/Groundwater Resource designation to thousands of acres of land in Lee County and, by so doing, achieved a significant separation between urban and rural uses. For this reason, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the State Plan in terms of separating urban and rural uses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for entry of a final order determining that the Plan Amendments are not in compliance for the reasons set forth above. ENTERED on January 27, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 27, 1993. NOTE: In the ACCESS document, language added to the policy is within the <<>>; deleted language is within the [[]].
The Issue Whether the City of Miramar Comprehensive Plan Amendment, adopted by Ordinance No. 1901 on October 17, 2018, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioners own and reside on property located at 17428 Southwest 36th Street in Miramar, Florida. Petitioners submitted oral and written comments, recommendations, or objections to the City during the period of time between, and including appearances at, the transmittal hearing and the adoption of the Plan Amendment. Petitioners’ house is approximately 430 feet north of the property subject to the Plan Amendment (the “Subject Property”). Petitioners’ property is separated from the Subject Property by a residential canal, approximately 100 feet of wetland or marsh area, and a City street right-of-way. The residential canal is owned and controlled by Petitioners’ homeowner’s association. From the backyard of their home, Petitioners enjoy observing and photographing birds and wildlife that utilize the canal, including birds that can be seen from Petitioners’ property in the trees on the Subject Property and flying between the properties. The City is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Univision is a Delaware limited liability company authorized to transact business in Florida. Its principal business address is 500 Frank West Burr Boulevard, Teaneck, New Jersey 07666. Univision is the owner of the Subject Property. Lennar is a Florida limited liability company, whose principal business address is 700 Northwest 107th Avenue, Suite 400, Miami, Florida 33172. Lennar is under contract to purchase the Subject Property. Existing Conditions The Subject Property is approximately 120 gross acres of mostly undeveloped property. The Subject Property contains 102.2 acres of wetlands and 15.5 acres of uplands. At least 80 percent of the wetlands are covered by Melaleuca trees, which is an invasive species. Melaleuca is listed by federal and state agencies as a noxious weed, making it illegal to possess, sell, cultivate, or transport in Florida. The uplands on the Subject Property are limited to areas previously developed with radio transmission towers, a control room, and filled roadways connecting the on-site improvements. The improvements, with the exception of the fill roads, were removed in approximately 2017. The radio towers were secured by guy wires anchored by concrete blocks. The areas of the Subject Property underneath the guy wires were maintained to prevent vegetation from growing up into the guy wires. The areas where the concrete supports have been removed are wet, and the areas that were beneath the former guy wires contain fewer Melaleuca and some native vegetation, like sawgrass and ferns. However, the upland areas are also currently growing exotic grasses and Australian Pine, which are also invasive species. The Subject Property is currently designated on the City’s Future Land Use Map (“FLUM”) as “Rural.” Pursuant to the City’s Comprehensive Plan, the Rural land use category allows the following types of development: (1) residential development at a density of one dwelling unit per 2.5 gross acres (1du/2.5 acres); (2) agricultural and related uses, including crops, groves, horse and cattle ranches, private game preserves, fish breeding areas, and tree and plant nurseries; (3) parks; (4) police and fire stations, libraries, and civic centers; (5) special residential facilities, such as group homes; and (6) public utilities, including wastewater pumping stations, electrical utility substations, and telecommunications transmission facilities. The Plan Amendment The Plan Amendment changes the FLUM designation of the Subject Property from Rural to “Irregular (3.21) Residential,” which allows residential development at a density of 3.21du/acre.4/ Lennar proposes to develop 385 units on the property-- the maximum allowable under the Plan Amendment. Under Lennar’s development proposal, all of the on- site wetlands will be impacted. The Plan Amendment Process Broward County municipalities have a unique plan amendment review process. Each amendment to a municipal comprehensive plan must be consistent with, and incorporated into, the Broward County Land Use Plan (“BCLUP”). This Plan Amendment, as with all other municipal amendments, was reviewed and approved through both the County’s and City’s approval process. The Board of County Commissioners held an adoption public hearing on March 20, 2018, and approved Ordinance No. 2018-12, amending the BCLUP to change the County FLUM designation of the Subject Property from Agriculture to Irregular (3.21) Residential. On October 17, 2018, the City Commission held a duly advertised second public hearing, wherein the City voted to adopt the Plan Amendment. Lennar Permitting Lennar pursued permitting of its proposed development of the Subject Property during the Plan Amendment review process. On or about September 11, 2018, the Broward County Environmental Protection and Growth Management Department (“EPGMD”) issued an environmental resource license (“ERL”) for the proposed development. The ERL is based on Lennar’s site plan for the site, not the Plan Amendment. The ERL recognizes that the impacts on the Subject Property wetlands are unavoidable and determines that off-site mitigation is required to address any impacts on those wetlands. On or about September 11, 2018, the South Florida Water Management District issued an environmental resource permit (“ERP”) for the proposed development. The ERP is based on Lennar’s site plan and other required documents, not the Plan Amendment. The ERP provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. On or about December 14, 2018, the Army Corps of Engineers (“ACOE”) issued a permit for the development proposed, based upon Lennar’s site plan and other required documents. The ACOE permit provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. Petitioners’ Challenge Section 163.3177(2) directs that “the several elements of the comprehensive plan shall be consistent,” in furtherance of the major objective of the planning process to coordinate the elements of the local comprehensive plan. Petitioners allege the Plan Amendment is not “in compliance” because it creates internal inconsistencies with the existing Comprehensive Plan. Petitioners’ challenge rests on four provisions of the Comprehensive Plan: Future Land Use Element (“FLUE”) Goal (unnumbered), FLUE Policies 3.5 and 6.10, and Conservation Element Policy 7.3 (“CE Policy 7.3”). FLUE Goal (unnumbered) The City’s Comprehensive Plan contains one overarching goal for the FLUE, which reads as follows: Maintain a long-range future land use pattern which promotes orderly and well- managed growth and development of the community, producing quality neighborhoods, enhancing the city’s aesthetic appeal, conserving the natural environment and open space, supporting a vibrant economic tax base, and minimizing risks to the public’s health, safety, and welfare. (emphasis added). The goal is the singular goal for the overall FLUE, which includes 12 different objectives and many more policies for each objective. The purpose of the goal is to set the initial framework; it is a very broad statement setting the direction for the City’s long-term goals, but does not provide any measurable standards or specifics regarding implementation. Petitioners’ challenge focuses on the underlined phrase, and argues that the Plan Amendment is internally inconsistent with the goal’s direction to “conserv[e] the natural environment and open space.” The Subject Property is not currently designated as either “Recreation and Open Space” or “Conservation.” The Subject Property is private property that, by virtue of its land use designation, has always been intended for development as one of the uses allowable within the Rural land use category. Further, Eric Silva, the Director of the City’s Community and Economic Development Department, testified that the goal’s direction of “conserving the natural environment and open space” relates only to those areas that have been designated by the City, or another agency, for protection. The Recreation and Open Space Element (“ROS Element”) sets forth the specific objectives and policies to accomplish the City’s goal to “[p]rovide adequate and accessible parks and facilities to meet the recreation needs of all current and future Miramar residents.” In the ROS Element, the City has established a level of service standard of four acres of park and open space for each 1,000 City residents. Petitioners introduced no evidence that the Plan Amendment would diminish the amount of land designated for open space in the City, or otherwise impede the City’s progress toward the adopted standard. To the contrary, Mr. Silva testified that the City has over 300 extra acres of park space and that this Plan Amendment will not impact the City’s adopted level of service for parks and open space. Likewise, Petitioners introduced no evidence to support a finding that the Plan Amendment would reduce the amount of land designated for “Conservation” in the City. Rather, Petitioners argue that the Subject Property should be converted to a nature preserve, or otherwise placed in conservation use. The issue in this case is not whether the City should designate the Subject Property for a different use, but whether the designation the City proposes is consistent with the comprehensive plan. Petitioners did not prove the Plan Amendment is inconsistent with the FLUE Goal. FLUE Policy 3.5 Petitioners next contend the Plan Amendment is inconsistent with FLUE Policy 3.5, which directs the City to “[c]onsider the cumulative and long-term effects of decisions regarding amendments to the Land Use Plan Map and revisions to the Future Land Use Element.” Petitioners’ concerns here are similar to those with the FLUE Goal--the Plan Amendment will reduce green space and open space, which could be preserved under the existing Rural designation. Petitioners’ expert witness conceded that it is impossible to determine that the City did not consider the cumulative and long-term effects of the Plan Amendment. Moreover, the City introduced abundant evidence that it considered, during the lengthy Plan Amendment process, all impacts of the Plan Amendment on the City’s resources and infrastructure. Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 3.5. FLUE Policy 6.10 Next, Petitioners argue the Plan Amendment is inconsistent with FLUE Policy 6.10, which states, “The City shall consider the impacts of land use plan amendments on wetland and native upland resources, and minimize those impacts to the maximum extent practicable.” Here, Petitioners focus on the density allowed under the Plan Amendment. Petitioners argue that the Plan Amendment is inconsistent with this policy because it allows development of 385 units, which will maximize, rather than minimize, impacts to the on-site wetlands. Petitioners argue that the residential density allowed under the existing Rural designation would yield development of only 48 units, which would provide for conservation of at least some of the wetlands on site, thereby minimizing the wetland impact. Petitioners’ argument ignores the fact that the Rural designation allows other types of non-residential development that may be as intense as residential, such as a civic center or fire station, or uses that require fewer improvements, but have a destructive effect on wetlands, such as horse or cattle ranches. The issue of whether the Plan Amendment minimizes impacts to wetlands is not determined by the mathematical function 48 units < 385 units. Instead, the determination hinges on the meaning of “minimizing impacts” in the City’s Comprehensive Plan. Under the City’s Comprehensive Plan, impact of development on wetlands must be considered in partnership with the County, and is dependent upon the value assigned to those wetlands, pursuant to the wetlands benefit index (“WBI”), as set forth in the Conservation Element. Based on the following relevant analysis, the Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 6.10. CE Policy 7.3 Finally, Petitioners challenge the Plan Amendment as internally inconsistent with CE Policy 7.3, which reads as follows: The City shall distribute land uses in a manner that avoids or minimizes to the greatest degree practicable, the effect and impact on wetlands in coordination with Broward County. Those land uses identified below as being incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands, or when compatible land uses are allowed to occur, shall be mitigated or enhanced, or both, to compensate for loss of wetland functions in accordance with Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection. Compatibility of Land UsesRelative to the Wetland Benefit Index (WBI) Wetland Benefit Index Land Use Compatibility 1. Wetlands with a WBI value greater than or equal to 0.80 1. There is a rebuttable presumption that all land uses except for conservation uses are incompatible. 2. Wetlands with a WBI value less than 0.80 2. All land uses are compatible, provided that the wetland impact compensation requirements of Chapter 27, Article XI, are satisfied. Source: Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection CE Policy 7.3 is more specific than FLUE Policy 6.10 regarding the City’s direction to minimize impacts of development on wetlands. Petitioners’ planning expert opined that the Plan Amendment is inconsistent with this policy because it does not “avoid or minimize” the impact of wetlands at all, much less “to the greatest degree practicable,” as directed by the policy. Petitioners’ expert based his entire argument solely on the first sentence of the policy. Petitioners’ planning expert explained, incredulously, that, in his opinion, the rest of the policy “doesn’t matter.”5/ The opinion of Petitioners’ expert was not persuasive. The Policy must be read in its entirety; and, when read as such, the Plan Amendment is consistent with the policy. The first sentence of the policy is precatory and direction-setting. It states the City’s intent to distribute land uses in a way that minimizes wetland impacts. The following sentences describe in more detail how that direction will be accomplished, and specifically reference the incorporated chart. The policy provides that land uses identified in the chart as incompatible with wetland protection “shall be directed away from wetlands.” By contrast, the policy provides that for land uses identified as compatible, wetland impacts “shall be mitigated . . . in accordance with the Broward County Code of Ordinances, Chapter 27.” It is undisputed that the wetlands on the Subject Property have a WBI value of less than .80. Pursuant to the chart, then, all uses of the Subject Property are compatible with the wetlands on-site, as long as the wetland impact compensation requirements of the Broward County Code are followed. The policy clearly provides that no development, regardless of density or intensity, must be directed away from the wetlands on the Subject Property. If the WBI value of the on-site wetlands was .80 or higher, pursuant to this policy, Petitioners’ position that the Subject Property should be placed in Conservation use would be presumed correct, although rebuttable. To that end, Petitioners introduced expert opinion testimony as to the quality of the wetland areas on-site which were previously maintained by the property owner--namely the areas under the guy wires. In the opinion of Petitioners’ wetlands expert, the on-site wetlands could be restored to higher quality if the Melaleuca trees were removed and the stumps sprayed to prevent regrowth. Petitioners’ argument is irrelevant to a determination of whether the Plan Amendment is consistent with this policy. Having established that the WBI value of the on-site wetlands is below .80, the issue of whether the on-site wetlands could be restored is irrelevant. Chapter 27 of the Broward County Code governs application for, and issuance of, an ERL for wetland alteration. On September 11, 2018, Broward County issued an ERL to Lennar for its proposed development of the Subject Property. Petitioner introduced no evidence to support a finding that the provisions of Chapter 27 were not satisfied by the County in issuing the ERL. Petitioners did not prove the Plan Amendment is inconsistent with CE Policy 7.3.
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 Plan Amendment adopted by City of Miramar Ordinance 1901, on October 7, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2019.
The Issue The issues for determination are whether, as alleged in the Amended Administrative Complaint, Walter L. Moyer, violated Section 472.033(1)(g) and (h) F.S. and Rule 21 HH-2.01(3) by performing a land survey in a negligent or incompetent manner, without due care and without due regard for acceptable professional standards, and violated Section 472.033(1)(e), (g) and (h) F.S., and Rule 21HH- 2.01(3) and (5) FAC, by providing a false or deliberately inaccurate survey sketch to a client on two separate occasions.
Findings Of Fact Walter L. Moyer has been licensed by the State of Florida as a registered surveyor from approximately August 1977 until present, and holds license number LS 0002828. His address for license purposes is Palm Bay, Florida, in Brevard County. His practice as a surveyor has been primarily in construction-related surveys and lot surveys, with very few parcel surveys. THE CHILCOTT SURVEY (COUNT I) In June 1984, Charles and Robin Chilcott purchased property on Grant Road, in Brevard County, consisting of approximately 1.44 acres of undeveloped land. The Chilcotts acquired the parcel with the intent to construct a home and keep their horses. Shortly after purchase, the Chilcotts retained Moyer to prepare a boundary survey of the parcel. The cost of the survey was $315.00 including $7.50 extra cost for two concrete monuments, rather than iron rods, at the front corners, as requested by the Chilcotts. The survey was performed on July 27, 1984, and Moyer was paid. He furnished the Chilcotts several sketches of survey which he had signed and sealed. In 1985, the Chilcotts hired a contractor, Casey Jones, and commenced building their house. At the request of Casey Jones, Moyer prepared both the foundation and final surveys. These two surveys were added to the boundary survey on September 26, 1985, and November 23, 1985, respectively. At the time that the field work on the foundation and final survey was done, Moyer detected no problems with the monumentation he had initially set in the boundary survey. He did not see any evidence that the monuments had been disturbed. The final survey shows the house to be 17.35 feet inside the east lot line. The Chilcotts wanted at least that distance because the area is zoned agricultural and they did not want the neighbor's livestock close to the house. They also understood that the county required a minimum 10-foot set-back. In connection with the construction of their home, and in reliance upon Moyer's survey identifying their property's boundary, the Chilcotts installed a well and a fence and had approximately 800 feet of sod planted along the east boundary. The Chilcotts have since learned that those improvements are not on their property and that their house is, in fact, only 7.25 feet from the lot line. In May, 1986, David Rothery, a Florida licensed land surveyor, performed a boundary survey of the Donald Waterbury parcel adjacent to and just east of Chilcott's land on Grant Road. Rothery checked and double-checked his field measurements and still found a ten foot discrepancy in the placement of the monuments on the eastern corners of the Chilcott parcel. Those monuments were ten feet too far to the east and were, therefore, placed ten feet within the Waterbury boundaries. He did not observe any indication that the monuments had been moved, and when he placed his corners for the proper boundaries, he found no evidence that monuments had ever been there before. As required, the monuments placed by Moyer had his identification on them. Rothery put a dotted line on his survey with the notation, "Apparent survey error on adjoining property by Walter Moyer Land Surveying". Rothery also called Moyer and told him about the discrepancy. On the morning of May 10, 1986, Moyer went back out to the Chilcott property and discovered that his monuments were ten feet too far to the east. He was in the process of moving them when he was confronted by Charles Chilcott. He told Chilcott that an error was made, that he "dropped ten feet". There was some discussion about possible remedies such as paying for the well and fence to be moved or buying the ten feet from Waterbury. Chilcott did not let Moyer finish moving the monuments. That night, Chilcott, who had never met Moyer before, but had only communicated by phone or in writing, called Moyer's house and confirmed that it was the same person he had seen moving the monuments. That was the last time Chilcott spoke with Moyer. Chilcott called Moyer's house several times over the following months, but always reached Mrs. Moyer and his phone calls were not returned. Moyer did contact Waterbury about purchasing the ten foot strip. Waterbury was concerned about how this would affect his eventual ability to build on his lot and refused to sell. Waterbury is not pressing the Chilcotts about their encroachments; he simply expects to have the matter resolved sometime in the future. By a letter dated 8/18/86, the Chilcotts requested damages of $2,500.00 from Moyer, including an estimate of costs to move the well, fence and a power pole and to replace sod. On September 13, 1986, another letter from Chilcott to Moyer listed the same plus additional damages, for a total demand of $4,025.00. In a letter to Chilcott dated August 27, 1987, Moyer offered to pay the application fee to seek a variance from the setback requirement and offered to provide a final survey and half the cost of moving the well. The letter denied that the problem was Moyer's fault and said that Moyer believes that the markers were moved between the date the survey was completed and the date of the foundation. The Chilcotts rejected that offer. No evidence in this proceeding supports Moyer's contention that the Chilcotts or someone else moved the monuments he originally set in 1984. The evidence does establish a strong circumstantial basis for finding that the monuments were not moved, but were incorrectly placed by Moyer at the time that the boundary survey was completed. Setting the monuments properly is an essential component of conducting a boundary survey. Moreover, when a subsequent final survey is done, it is the duty of the surveyor to assure that the original monuments have not been disturbed during construction and site work by a contractor. Assuming that Moyer is correct in his contention that the monuments were moved after they were set by him, but before the foundation was placed, it was his duty to discover that fact. He did not, since his final survey shows that the house is 17.35 feet from the boundary, whereas the house is, in fact, approximately seven feet from the adjoining property. Except when witness monuments are used, as when a tree or other obstruction sits on a boundary corner, it is a violation of standard surveying practice to place a monument other than where it is shown on the survey drawing. In this instance, the drawing is accurate; as described in the Chilcott deed, the northeast corner of their property is 600 feet from the section corner. There was no need for witness monuments here; yet the east boundary monuments are ten feet off and are 590 feet from the section corner. There is no overlap in the legal descriptions of the Waterbury and Chilcott properties to account for the overlap in monuments discovered by David Rothery, the Waterbury surveyor. Surveying is a system of checking measurements. Both human and equipment errors in the profession are neither rare nor entirely common. Even the most up-to-date electronic equipment is subject to discrepancies. Checking and rechecking field measurements helps alleviate errors. The minimum technical standards developed by and for the profession are intended to reduce errors, although it is not clear that slavish adherence to those principles will absolutely prevent any possibility of error. When errors do occur, the standard of the profession is to work with the client to resolve the problem. In some cases, this may mean the purchase of the client's property or adjoining property if the party is willing to sell. Moyer's limited offers do not meet the established standards of the profession. THE BURGOON-BERGER SURVEYS COUNTS II AND III On August 21, 1986, Moyer signed and sealed a survey sketch of Lot 22, Block 2245, Port Malabar, Unit 44, in Brevard County Florida for Burgoon-Berger Construction Co. The survey of Lot 22 showed the drawing of an improvement within the boundaries of the lot with a notation, "FOUNDATION FF ELEV 25.86." Next to the date on the survey is the abbreviation, "FND". The survey was submitted to the Palm Bay Building Department on August 26, 1986, the day before the pre-slab inspection. A pre-slab inspection is done before the slab is poured; therefore, at the time the survey was signed and sealed, the concrete slab had not yet been poured. On October 20, 1986, Moyer prepared a sketch of survey of Lot 7, Block 1054, Port Malabar Unit 20, in Brevard County, Florida for Burgoon-Berger Construction Co. The survey sketch indicated an improvement within the boundaries of the lot, with the notation, "FOUNDATION FF ELEV 26.87". Next to the date on the survey is the notation "FND". The survey was submitted to the City of Palm Bay on October 28, 1986. The pre-slab inspection was done by the City on October 22, 1986. Again, the survey was signed and sealed before the slab was actually poured. The notation, "FOUNDATION FF ELEV", is commonly understood to mean "foundation, finished floor elevation". "FND" is commonly understood to mean "foundation". Moyer, himself, has used both notations to signify those common usages. Foundation is generally accepted in the land surveying profession to mean something permanent and constructed, like a concrete slab, not bust the ground or wooden form boards used to guide the pouring of the slab. A survey which depicts an improvement with the note, "FOUNDATION FF ELEV", when the floor has not been finished misrepresents the status of the construction of that project. Reviewing personnel at the Palm Bay Building Department rejected the surveys and alerted the City's Flood Plain Administrator. That individual, Maria Parkhurst, reported the incidents to the Department of Professional Regulation. Lots 22 and 7 are both in the flood plain and slab elevation is significant, as the City must assure that federal maximum elevation requirements are met. The City requires the submission of surveys containing slab elevation data. Banks also rely on foundation surveys submitted by contractors in order to determine the state of construction before the release of a foundation draw. That is, before the contractor is entitled to partial payment for his work, the bank needs to know if the work has been done. Both Moyer and his client, Bergoon-Berger, intended the notation in these cases to mean "finished form", not "finished floor". Burgoon-Berger had Moyer perform a survey after the wooden form boards were constructed, but before the concrete slab was poured, in order to assure that the house was placed properly on the lot. The survey was somehow submitted prematurely to the city, whereas because Moyer and his client intended that the poured slab be re-surveyed before the sketch was submitted. When the survey for Lot 7 was resubmitted to the City on October 31, 1986, the slab had been poured and, while the elevation remained the same, the size of the fireplace foundation was slightly smaller. The notation, "FOUNDATION FF ELEV" remained the same, with nothing on the face of the survey sketch to indicate that this later version was the finished floor, rather than the finished form. Moyer no longer uses these abbreviations. A survey is not valid until it is signed and sealed, but once it is signed and sealed, it signifies to the client and to the public at large that the information provided therein is true and accurate. The standard of professional land survey practice dictates that abbreviations which are not commonly accepted should be explained on the face of the drawing. The professional standards also dictate that even if a client asks for certain information on a survey, in anticipation that other third parties might rely on the survey the professional should either refuse to indicate improvements that do not exist yet or indicate unambiguously that the improvements are intended, but still under construction. Notwithstanding Bergoon-Berger's and Moyer's intentions with regard to the two surveys at issue, Moyer failed to meet professional standards when he signed and sealed those surveys and released them to his client.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final Order be issued finding Respondent guilty of Counts I, II and III of the Amended Administrative Complaint and placing him on probation for a period of two years, under such conditions as the Board may deem appropriate, including, but not limited to the participation in continuing professional education courses and the pursuit of a reasonable resolution to the Chilcott's boundary problems arising from the Respondent's negligence in performing their survey. DONE and RECOMMENDED this 3rd day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1987. APPENDIX The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner (Count I) Adopted in Paragraph 1. Adopted in Paragraph 2. 3-4. Adopted in Paragraph 3. Incorporated in Part in Paragraph 1., as to the limitation of experience, otherwise rejected as immaterial. Rejected as immaterial. Adopted in Paragraph 3. Adopted in part in Paragraph 3, otherwise rejected as unnecessary. 9-10. Rejected as unnecessary. Adopted in Paragraph 12. Rejected as unnecessary. Adopted in Paragraph 4. 14-18. Adopted in Paragraph 3 and 4. Adopted in Paragraph 11. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 11. 23-28. Adopted in Paragraph 7. Rejected as unnecessary. Adopted in Paragraph 7. Adopted in part in Paragraph 8, however the accurate date is May 10, 1986, and the evidence is inconclusive as to whether Moyer spoke to either of the Chilcotts before coming back. This fact is not material. 32-33. Adopted in Paragraph 8. 34. Rejected as cumulative and unnecessary. 35-37. Adopted in substance in Paragraph 8. Rejected as cumulative and unnecessary. Adopted in Paragraph 9. Adopted in part in Paragraph 9, otherwise rejected as unsubstantiated by competent evidence and immaterial. Adopted in Paragraph 6. 42-43. Rejected as cumulative. 44. Adopted in substance in Paragraph 10. 45-47. Rejected as cumulative. 48-49. Adopted in Paragraph 12. 50-51. Rejected as cumulative and unnecessary. Adopted in Paragraph 13. Rejected as cumulative. 54-55. Adopted in Paragraph 14. (Counts II and III) Adopted in Paragraph 1. Adopted in Paragraph 15. Adopted in Paragraph 16. 4-6. Adopted in Paragraph 17. Adopted in Paragraph 20. Adopted in Paragraph 21. Rejected as unnecessary. Adopted in Paragraph 18. Adopted in Paragraph 25. Adopted in Paragraph 18. Rejected as cumulative. Adopted in substance in Paragraph 25. Rejected as unnecessary. Adopted in Paragraph 23. Rejected as unnecessary. Adopted in Paragraph 25. Respondent Adopted in Paragraph 1. 2-5. Addressed in Background. Adopted in Paragraph 2. Adopted in Paragraph 3. 8-11. Rejected as immaterial. 12-13. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 7. Adopted in part in Paragraph 7. Adopted in Paragraph 7. Rejected as contrary to the weight of evidence, except for the fact that the Chilcott house is 7 feet from the boundary. That fact is adopted in Paragraph 6. 19-20. Adopted in substance in Paragraph 8. Adopted in Paragraphs 9, 10, and 14. Adopted in Paragraph 10. Rejected, except as adopted in Paragraph 10. 24-25. Rejected as unnecessary. Adopted in Paragraph 11. Adopted in part in Paragraph 14, otherwise rejected as unsupported by the weight of evidence. Adopted in substance in Paragraph 13. Rejected as immaterial. While the boundary depiction is accurate, the placement of the house is in error on the final and foundation surveys and, of course, the markers are erroneously set. 30-33. Addressed in Background. 34. Adopted in Paragraphs 15 and 17. 35-36. Adopted in part in Paragraph 22, otherwise rejected as contrary to the weight of evidence. 37-38. Rejected as immaterial. 39. Adopted in Paragraphs 19 and 22. 40-44. Rejected as immaterial. COPIES FURNISHED: DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JAMES P. BEADLE, ESQUIRE 5205 BABCOCK STREET N. E. PALM BAY, FLORIDA 32905 ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact Based upon my review of the entire record, including the transcript of the proceedings and documentary evidence, I make the relevant findings of fact. At all times material to the Administrative Complaint filed herein, Respondent, John D. Holt, was licensed as a Professional Land Surveyor in the State of Florida and held License No. 0002665. On July 28, 1986, the Board of Professional Land Surveyors entered a Final Order in Case No. 0059729 (DOAH Case No. 86-4449), a prior disciplinary action against Respondent. The Final Order in DPR Case No. 0059729, adopted and incorporated a stipulation executed by the Department of Professional Regulation and John D. Holt on April 18, 1986. A copy of the Final Order was mailed to Respondent. The Final Order in DPR Case No. 0059729 placed Respondent on probation for twenty-seven months. During the course of the twenty-seven month probation, the Final Order required Respondent to pay an administrative fine of $750.00. This fine was to be paid within thirty days from the date the Final Order was filed. Also, the Final Order required Respondent to complete the first available seminar on the Minimum Technical Standards held within his area and to submit twenty-five (25) surveys accompanied by field notes at designated intervals. With regard to the submission of surveys, the relevant part of the stipulation provides that the Respondent shall ...submit to the Board at the end of three (3) months of probation, and again, at the end of nine (9) months, 15, 21, and 27 months of probation, five (5) land survey projects each, accompanied by field notes. As regards these 25 land surveys and field notes, it is Respondent's responsibility to ensure that such reports are submitted to the Executive Director of the Board in compliance with this paragraph in a timely manner. Respondent paid the $750.00 administrative fine as required by the Final Order. However, Respondent failed to complete the first available seminar on Minimum Technical Standards as required by the Final Order. In fact, there was no evidence that Respondent completed any seminar on the Minimum Technical Standards prior to the end of his twenty-seven month probationary period. Respondent failed to submit the requisite number of surveys and field notes for review by the Board within the time specified by the Board's order. The evidence shows that Respondent submitted no surveys or field notes for Board review during the twenty-seven month probationary period. By Final Order entered on February 5, 1990, in DPR's Case Nos. 106764 and 107454, the Board suspended Respondent's license for a period of twenty-four months. Pursuant to the Stipulation, which was incorporated in to the Final Order, the suspension was stayed to allow for a twenty-four month period of probation, during which time the Respondent was to meet certain conditions. The Final Order in DPR Case Nos. 106761 and 107454 imposed three requirements on Respondent. First, Respondent was to pay an administrative fine of $2500.00 no later than thirty (30) days after the Final Order was filed. Second, during the first six months of probation, the Respondent was to provide verification of successful completion of a continuing education course in the Minimum Technical Standards. Third, within the first six months of probation, Respondent was to complete and return to the Board, the Board's study guide. It is undisputed that Respondent, although not present at the informal hearing, received a copy of the Final Order in these cases. The Final Order in DPR Case Nos. 106764 and 107454 provided that within thirty days following the verification of successful completion of the Minimum Technical Standards seminar, the Board's consultant would randomly select six surveys performed by the licensee for submission and review by the Board. If the surveys submitted by the consultant to the Board were found to substantially comply with the Minimum Technical Standards, the Respondent would be released from probation at that time. If the surveys were found by the Board not to comply with the standards, the Board had the option of either lifting the stay and imposing the suspension, or directing the Board consultant to randomly select an additional six (6) surveys performed by the licensee for review by the Board. If the second set of surveys were found not to comply with standards, the stay of suspension would be lifted and the license would be suspended for the remainder of the twenty-four month period. Contrary to the Administrative Complaint and the Disciplinary Worksheet for Case Nos. 106764 and 107454, the Final Order in these cases did not require Respondent to submit six (6) surveys with field notes and record plats to the Board by August 6, 1990. Therefore, Respondent's failure in this regard does not constitute a violation of the Final Order in Case Nos 106764 and 107454. Notwithstanding the error in the Administrative Complaint and Disciplinary Worksheet for Case Nos. 106764 and 107454, it still remains that the actual terms of the Final Order in Case Nos. 106764 and 107454 were completely disregarded by the Respondent. According to the evidence presented, Respondent failed to pay the $2,500 administrative fine which was due on March 8, 1990 as required by the Final Order. Respondent did not attend a Minimum Technical Standards seminar by August 6, 1990. Also, Respondent did not complete and submit to the Board the study guide which was due August 6, 1990. With regard to payment of the administrative fine, Paragraph 11 of the Stipulation states the following: Any fine imposed shall be paid no later than 30 days after the date of the filing of the Board's Final Order arising out of the informal hearing. If the Board shall impose a fine to assure payment of same, the following clause shall be in effect: the Respondent's licensure shall be suspended effective as of the date of the filing of the Board's Final Order imposing the fine, provided however, the effect of the suspension is stayed for 30 days thereafter; if Respondent shall cause payment of said fine to be actually received by the Board within said 30 days, then the suspension imposed shall be automatically lifted upon payment of upon receipt of payment of said fine.... As a result of Respondent's failure to attend a Minimum Technical Standard's seminar, the condition precedent to the consultant randomly selecting six surveys performed by the licensee was not met. Therefore, the Board consultant was unable to request or select surveys performed by the Respondent for submission to the Board for evaluation and review. Violations of the provisions or conditions of probation of the Final Order are expressly addressed in the Stipulation which was incorporated into the Final Order. Paragraph 14 of the Stipulation provides in relevant part the following: Failure of the licensee to comply with any of the terms of probation may result in a lifting of the stay and imposition of the suspension at the Board's discretion. . . On May 14, 1990, Respondent was put on notice by the Department Professional Regulation that he was in violation of the terms of the Final Order in DPR Case Nos. 106764 and 107454 for failure to pay the $2500 administrative fine. By letter dated May 25, 1990, Respondent was notified that his license was suspended as of May 22, 1990, for failure to comply with terms of the Final Order in DPR Case Nos. 10674 and 107454, in that he failed to pay the fine of two thousand five hundred dollars ($2,500.00). The letter, received by Respondent on May 30, 1990, indicated that the Board voted to lift the stay and Respondent's licensed was suspended until further action of the Board. This action by the Board was consistent with the provisions of the Final Order. Although the Final Order in Case Nos. 106764 and 107454 provided that "compliance of the licensee after the suspension might result in another stay and continued probation," Respondent never complied with any of the conditions set forth in the Final Order. Therefore the suspension was never stayed and remained in effect. Respondent notified the Board that he filed for bankruptcy and was told that the administrative fine of $2,500.00 may be dischargeable. However, the evidence indicates that Respondent's bankruptcy petition was not filed until 1991, while the administrative fine was due in March, 1990, the preceding year. Thus, Respondent was not entitled to any relief from this obligation at the time it was initially due. Even if the administrative fine of $2,500.00 was discharged by the May 21, 1991 Order of the Bankruptcy Court, which released Respondent from all dischargeable debts, the other terms of the Final Order in Case Nos. 106764 and 107454, are not affected by the Order of the Bankruptcy Court. In his testimony, Respondent admitted that although the administrative fine might be dischargeable in bankruptcy, the other requirements imposed by the Final Order in DPR Case Nos. 10674 and 107454 were not dischargeable on this basis. Respondent violated the provisions of the Final Order in DPR Case No. 59729 and the Final Order in DPR Case Nos. 106764 and 107454.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner revoke Respondent's license to practice land surveying. RECOMMENDED this 2nd day of October, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 2nd day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1271 & 95-1272 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Petitioner's proposed findings of fact: Paragraphs 1-2. Accepted and incorporated. Paragraph 3. Accepted, except evidence does not support subsection (b). Paragraphs 4-19. Accepted and incorporated to the extent not subordinate and unnecessary Paragraph 20. Accepted, except evidence does not support that Discipline Action Worksheet accurately reflects a provision of the Final Order. Paragraphs 21-26. Accepted, and incorporated to the extent not subordinate and unnecessary. Paragraph 27. Accepted, and incorporated, except evidence does not support that Respondent was told that administrative fines were dischargeable. Paragraph 28. Accepted and incorporated. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. John D. Holt 925 Azure Avenue West Palm Beach, Florida 33414 Angel Gonzalez Executive Director Board of Professional Land Surveyors 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether an amendment to the Metropolitan Dade County comprehensive plan adopted as Item No. 6, Ordinance No. 94-192, is "in compliance", as those terms are defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Village of Key Biscayne (hereinafter referred to as the "Village"), is a local government (a municipal corporation) located within Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Metropolitan Dade County (hereinafter referred to as "Dade County"), is a political subdivision of the State of Florida. Dade County is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction. Intervenor, Marine Exhibition Corporation (hereinafter referred to as "Marine"), is the applicant for the amendment which is at issue in this case. Marine is the owner of the Miami Seaquarium (hereinafter referred to as the "Seaquarium"), a saltwater oceanarium and tourist attraction located in Dade County, Florida. The Village's Standing. The Seaquarium is located on Virginia Key, an island located in Biscayne Bay. The Seaquarium is connected with the mainland of Dade County by the Rickenbacker Causeway. The Village is located on Key Biscayne. Key Biscayne is an island located in Biscayne Bay. Key Biscayne is connected to Virginia Key. Key Biscayne is connected with the mainland of Dade County through Virginia Key. The Rickenbacker Causeway runs through Virginia Key, past the Seaquarium, over a bridge onto Key Biscayne. The Causeway becomes Crandon Boulevard, which runs to and through the Village and ends at Cape Florida, at the southeastern corner of Key Biscayne. Virginia Key and Key Biscayne are located within the jurisdictional boundaries of Dade County. The closest Village boundary to the Seaquarium is located approximately 2 and 1/4 to 2 and 1/2 miles from the Seaquarium property. The Village is located completely within Dade County's jurisdictional boundaries. The Village, therefore, owns property located in Dade County. The Village conducts all of its business within its city limits, located on Key Biscayne. The weight of the evidence failed to prove that the plan amendment at issue in this proceedings will "produce substantial impacts on the increased need for publicly funded infrastructure" of the Village or will create a "substantial impact on areas designed for protection or special treatment within the [Village's] jurisdiction." See Section 163.3184(1)(a), Florida Statutes. The Village raised objections by oral and written comments concerning the proposed amendment (hereinafter referred to as the "Proposed Amendment"), at public hearings during the period of time commencing with the transmittal hearing and ending when the Proposed Amendment was adopted by Dade County. The Village's objections and comments did not include objections or comments concerning density and intensity standards. The Seaquarium. The Seaquarium is located on thirty-seven acres. The property is owned by Dade County and has been subject to a long-term lease to Marine. Dade County also owns all structures erected on the site and all marine mammals. The Seaquarium has been in operation at its present site since 1954. The Seaquarium has a history of providing entertainment, educational and recreational uses to residents and visitors to Dade County. Existing uses of the Seaquarium include approximately ten marine mammal exhibits and corresponding shows featuring these mammals, a marina, theme-oriented gift shops and restaurants. Educational activities at the Seaquarium include: (a) a program to train teachers in marine science and student field trips (over 75,000 students attend the past year) in cooperation with Dade County and Broward County, Florida; (b) the largest manatee rehabilitation and recapture program in the United States; (c) an internship program with the Mast Academy, a magnet school for gifted high school students; and (d) research and development exchange programs with the National Oceanographic and Atmospheric Administration (hereinafter referred to as "NOAA"). Florida Quality Development Designation. Marine decided to improve its facilities at the Seaquarium through a project it labeled "Seaquarium Village." Marine initially sought and obtained a designation from the Department of the Seaquarium Village as a Florida Quality Development (hereinafter referred to as "FQD"), pursuant to Chapter 163, Florida Statutes. The Seaquarium Village project was subsequently challenged by the Village pursuant to Section 163.3215, Florida Statutes. The Village alleged that Seaquarium Village was not consistent with Dade County's comprehensive plan (hereinafter referred to as the "Plan"). The Third District Court of Appeal entered an opinion on November 9, 1993, finding that the project was inconsistent with the Dade County Comprehensive Development Master Plan (hereinafter referred to as the "Plan"). Village of Key Biscayne v. Dade County, 627 So.2d 1180 (Fla. 3d DCA 1993), rev. den., 639 So.2d 976 (1994). The Proposed Amendment. The Plan includes a Land Use Element. The Land Use Element identifies locations in Dade County where various land uses, including intensities of use, will be allowed during the period for which the Plan applies. The land uses are also depicted on the Future Land Use Map. One of the land uses provided for in the Plan is the "Parks and Recreation" land use. The Seaquarium is located within the "Parks and Recreation" Land Use Plan map category of the Plan. The Plan includes the following descriptive text concerning the "Parks and Recreation" Land Use Plan map category: Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational, entertainment or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Marine filed an application in November of 1993 with Dade County seeking approval of a modification of the "Parks and Recreation" land use category for the site of the Seaquarium. The proposed modification ultimately adopted by Dade County, after Dade County and Marine cooperated to agree on the proposed language, provides for the addition of the following language immediately after the descriptive text quoted in finding of fact 24: [Included in the category is the Seaquarium, a unique tourist attraction with a long history of educational, entertainment, and recreational benefit both to residents of Dade County and to visitors. Notwithstanding any other provisions in the Parks and Recreation section of the Land Use Plan Element, in order to continue and to enhance its contributions to the community, this facility may be authorized to renovate, expand, and increase the variety of its educa- tional, recreational and entertainment attractions. Accordingly, the following additional uses may be permitted at the Seaquarium site: recreational and educational uses, restaurants, gift shops, marine or water amusements, and environmentally- related theaters.] 1/ The Proposed Amendment does not apply to any Parks and Recreation site other than the Seaquarium site. Following transmittal of the Proposed Amendment to the Department, the Department issued its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), on or about September 1, 1994. In the ORC the Department objected, in relevant part, to the lack of adequate data and analysis to demonstrate the compatibility of the Proposed Amendment with the surrounding land uses and raised questions concerning whether the proposed project was in a Coastal High Hazard Area. In response to the ORC, Dade County provided the following information to the Department: (a) the record of the transmittal and adoption hearings; (b) Chapter 9J-11 deliverables; (c) information on the surrounding land uses in the vicinity of the Seaquarium; (d) the Seaquarium FQD; (d) the Seaquarium ADA; and (e) information concerning coastal high-hazard area. The proposed Seaquarium modification of the Parks and Recreation Land Use Element was adopted by Dade County on October 13, 1994, by Ordinance No. 94- 192. In December, 1994, after review of the Proposed Amendment and the additional information provided by Dade County, the Department issued a Notice of Intent to Find the Proposed Amendment in Compliance. The decision of the Department was challenged by the Village on or about December 30, 1994. Intensity or Density of Use. The Act provides the following regarding the Future Land Use plan element required to be included in all comprehensive plans: . . . designating proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land. . . . Each land use category shall be defined in terms of the types of uses included and specific standards for the density or intensity of use. . . . Section 163.3177(6)(a), Florida Statutes. See also Rule 9J-5.006(3)(c)7., Florida Administrative Code. The requirement of Section 163.3177(6)(a), Florida Statutes, concerning densities and intensities applies to all comprehensive plans and amendments thereto. "Densities" and "intensities" are objective methods of determining the extent to which land may be utilized. "Densities" are usually expressed in terms of the number of units allowed per acre of land. Rule 9J-5.003(33), Florida Administrative Code, defines "density" as "an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre." This definition of "density" was first adopted by rule in 1994. Densities are usually associated with residential uses. "Density" requirements are not relevant to the Proposed Amendment because it does not involve residential use of land. "Intensities" are most often expressed in terms of spatial uses, such as the amount of allowable floor space, lot coverage, or height. Rule 9J- 5.003(63), Florida Administrative Code, defines "intensity" as "an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on natural resources; and the measurement of the use or demand on facilities and services." This definition of "intensity" was first adopted by rule in 1994. The purpose of requiring density and intensity standards is to promote intelligent planning which allows for the measurement of developments on natural resources and infrastructure capacity, and allows the evaluation of compatibility with surrounding land uses. Initial Approval of the Plan. The Plan was submitted to the Department for initial review in 1988. The Plan was one of the first comprehensive plans reviewed pursuant to the Act by the Department. At the time of the Department's initial review of the Plan, there was no definition of density or intensity provided by rule. The definitions of density and intensity included in Rules 9J-5.003(33) and (63), Florida Administrative Code, were not adopted until 1994. The Parks and Recreation category of the Plan, when originally submitted for review, was required to include an intensity standard. The Plan's definition of the Parks and Recreation land use category did not, however, contain a specific restriction on intensity of use such as a floor area ratio, maximum lot coverage, or height restriction. Rather than include a specific intensity restriction in the Plan, Dade County elected to describe the types of nonresidential uses which would be allowed under the Parks and Recreation land use category. Dade County restricted allowable uses to those which are complementary to the site and its natural resources. Dade County believed that its description of allowable uses constituted an adequate intensity standard, providing an objective measurement of the extent that land could be developed, the use and demand on natural resources, and the use and demand on facilities and services. Dade County is the largest county in Florida. It includes approximately 2000 to 2100 square miles. Dade County, therefore, elected to emphasize its natural resources and public service impacts on a "macromanagement" basis. The Parks and Recreation land use category included in the Plan allows a wide range of park and recreational uses, including "neighborhood parks, area parks, metropolitan parks, regional and state parks, including Everglades National Park, [and] tourist attractions such as the Seaquarium, Metro Zoo, [and] Viscaya . . . ." Transcript, Vol. III, Page 402. The Department approved the Plan without objection, recommendation or comment with regard to the definition of the Parks and Recreation land use category. The "Baby Seal Policy". The Department's policy concerning the application of the Act to growth management plans has evolved since the initial plans were reviewed. The Department has recognized that some of the plans it initially approved may be "less than perfect". In recognition of this problem, the Department found it necessary to develope a policy to deal with plans that do not comply with the Department's interpretation of the Act now that the Department has more experience interpreting and applying the Act. The Department's response to the problem of dealing with plans that may not comply with the Act, but have previously been approved, is referred to as the "Baby Seal Policy". This policy has been described as follows: Local government A's comprehensive plan provides that ten baby seals may be killed over the planning period while local government B's plan provides that no baby seals may be killed. Both plans are initially approved by the Department. Subsequently, the Department adopts a rule that prohibits the killing of baby seals. Local government A then amends its plan to allow the killing of eight baby seals rather than ten. Local government B also amends its plan to allow the killing of two baby seals. In applying the "Baby Seal Policy" the Department would approve local government's amendment because it moves local government A's plan closer to complying the prohibition against killing baby seals. Local government B's amendment would not be approved, however, because it moves its plan further from complying with the prohibition. The Department's Baby Seal Policy was developed so that the Department can comply with the requirement of Rule 9J-5.002(2)(h), Florida Administrative Code, that the Department consider as part of its review of plan amendments whether an amendment makes substantial progress towards consistency with applicable requirements of the rules and the Act. Rule 9J-5.002(2)(h), Florida Administrative Code, requires consideration during the review of a proposed plan amendment of the following: Whether the provision at issue constitutes substantial progress over existing provisions regarding consistency with and furtherance of Chapter 163, the State Comprehensive Plan, Strategic Regional Policy Plan and this Chapter, where the existing provisions are in a plan or plan amendment previously found in compliance. The Department's "Baby Seal Policy" encourages local governments to adopt amendments to previously approved plans (which may not be in compliance with all provisions of the Act and/or Chapter 9J-5, Florida Administrative Code), which bring those plans closer to being in compliance with the Act and/or Chapter 9J-5, Florida Administrative Code. I. Application of the Baby Seal Policy to the Proposed Amendment. The Department recognizes that the Parks and Recreation land use category of the Plan may not be in compliance with the requirements of Chapter 9J-5, Florida Administrative Code, because it does not provide for the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment, however, continues Dade County's choice of describing the Parks and Recreation land use category by specifying the types of allowable uses at the Seaquarium. There is no doubt that the Proposed Amendment includes uses allowable on the Seaquarium site which, when read alone and without regard to the Plan's overall definition of the Parks and Recreation land use category, are broad. The Proposed Amendment clearly does not include the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment does, however, provide more detail as to the allowable uses on the Seaquarium site than currently included in the Parks and Recreation land use category. Consequently, the Proposed Amendment does provide greater certainty for indentifying the potential impacts of development at the Seaquarium site than the current definition of the Parks and Recreation land use category. The Proposed Amendment does, therefore, move the Plan in the direction of compliance with Chapter 9J-5, Florida Administrative Code, in furtherance of the Baby Seal Policy and as required by Rule 9J-5.002(2)(h), Florida Administrative Code. Internal Consistency. Internal consistency between and within elements of a growth management plan is required by the Act. Internal consistency must be maintained when a plan is amended. Without consistency in the provisions of a plan, it will not be clear what actions are allowable and unallowable under a plan. The Proposed Amendment provides that certain modifications of the Seaquarium site will be allowable under the Plan "[n]otwithstanding any other provisions in the Parks and Recreation Section of the Land Use Plan Element . . . ." This language creates a clearly designated exception to, or deviation from, other requirements of the Land Use Plan Element. A clearly specified exception to, or deviation from, a provision in a plan does not create an inconsistency. The evidence failed to prove that the Proposed Amendment creates an internal inconsistency with the Plan. Data and Analysis. Plan amendments must be supported by data and analysis. Rules 9J- 5.005(2) and 9J-5.006(2), Florida Administrative Code. Dade County provided, in addition to information concerning the surrounding area and coastal high hazard areas requested by the Department, the FQD and the Application for Development Approval (hereinafter referred to as the "ADA"), to the Department in support of the Proposed Amendment. While the FQD and the ADA pertain to a specifically proposed development, these documents contain data concerning the Seaquarium site, the only site to which the Proposed Amendment applies. Although the Proposed Amendment is not limited to the project approved in the FQD or the portion of the ADA which relates expressly to the project approved in the FQD, the ADA contains information concerning the only site to which the Proposed Amendment applies. That information, or data, and the analysis thereof is relevant to a determination of whether the Proposed Amendment should be approved. The information contained in the ADA is useful in estimating the impacts of the types of development that are permissible pursuant to the Proposed Amendment and not just the impacts of the development addressed in the FQD. The FQD and the ADA also provide information concerning what type of project may reasonably be expected at the Seaquarium site. Much of the pertinent data contained in the ADA also constitutes the best information available concerning the Seaquarium site and, therefore, the subject of the Proposed Amendment. While the only expert witness called by the Village, Mr. David Russ, opined that the FQD does not constitute the data and analysis required in support of the Proposed Amendment, Mr. Russ did not give a similar opinion concerning the ADA. Nor had Mr. Russ read the ADA. Non-development specific data provided to the Department in the ADA included information concerning services and facilities related to development at the site. In particular, data is included in the ADA concerning traffic and emergency services (proposed traffic improvements, trips, the existing roadway network, the applicable level of service and projected background traffic). Data was also provided in the ADA concerning wastewater, drainage and potable water (existing water distribution and transmission systems, pervious and impervious conditions), and solid waste. Data and analysis concerning the natural resources of the Seaquarium site was also included in the ADA. Existing on-site vegetation and wildlife are inventoried and information concerning air quality and wetlands is provided. Data and analysis concerning historical and archeological resources is also provided in the ADA. Question 12 of the ADA provides information concerning the need for renovation and expansion of the Seaquarium site. Data and analysis concerning the need for redevelopment of the site was unrefuted by competent, substantial evidence. The Department was also provided with data and analysis concerning the area which surrounds the site. Surrounding uses included the University of Miami Rosentiel School of Marine and Atmospheric Sciences, the United States National Marine Fisheries Laboratory Station and offices, the National Oceanographic and Atmospheric Administration offices, the Mast Academy, the City of Miami Marine Stadium and the Metro Dade County Central Regional Wastewater Treatment Facility. The Seaquarium and redevelopment which would be allowable pursuant to the Proposed Amendment are compatible with these surrounding uses. The Village's suggestion that the data and analysis provided to the Department in the FQD and the ADA (which had not been read by the Village's expert witness) was not sufficient because the FQD pertains to a specific project is not supported by the weight of the evidence. The FQD and, more importantly, the ADA contain sufficient data and analysis to support the allowable land uses of the Proposed Amendment. In addition to suggesting that the data and analysis provided to the Department is insufficient because the data and analysis relates to a specific project, the Village has argued that insufficient data and analysis has been provided with regard to intensity of use. This argument is essentially an extension of the Village's argument concerning the lack of an intensity standard. There is as much, or more, data and analysis provided with the Proposed Amendment concerning intensity of use as there is to support the existing Parks and Recreation land use category. The data and analysis to support the Parks and Recreation land use category which is presumed to exist, may also be relied upon in reviewing a plan amendment. Additionally, the data and analysis provided as a part of the ADA is sufficient to support the maximum intensity of use allowable pursuant to the Proposed Amendment. The evidence failed to prove that there was not adequate data and analysis to support a determination that the Proposed Amendment is "in compliance".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Amended Petition for Administrative Hearing Pursuant to Section 120.56, Florida Statutes, filed by the Village of Key Biscayne. DONE and ENTERED this 31st day of July, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 31st day of July, 1996.*
Findings Of Fact Respondent has been licensed to practice land surveying in Florida at all times relevant to this proceeding. However, between January 31, 1983 and August 27, 1983, his license was inactive due to his failure to renew. His license was reinstated automatically upon payment of the $80 biannual renewal fee in August, 1983, along with payment of a $20 late fee levied by Petitioner. On May 12, 1983, while his license was inactive, Respondent signed a boundary survey in his capacity as a registered land surveyor which included the following certification: "I hereby certify that the plat shown hereon is a true and correct representation of a survey of the property described in the caption thereof, made under my direction, and is accurate to the best of my knowledge and belief, and there are no encroachments unless shown." The property at issue was surveyed by Mr. Teddy O. Potter, who has a surveying business in West Palm Beach, but is not licensed as a land surveyor. Respondent is a former business associate of Potter's and certified the drawing as a favor to Potter. Respondent had not visited the property or participated in the boundary survey in any way. His certification was based on his inspection of the drawing and faith in Potter whom he had earlier trained. The property is owned by Mr. Thomas Burdsall who originally retained Potter to survey the property for mortgage purposes in 1979. The survey at issue here was required for the construction of a warehouse. Burdsall again contacted Potter who updated his 1979 drawing without resurveying the property. It should be noted that Respondent was not involved in the earlier survey, which was certified by another Potter associate. Utilizing Potter's boundary markers and the drawing certified by Respondent, Burdsall's contractor laid out the building and began construction. Potter then did a third (tie- in) survey revising the May 12, 1983 survey to show actual building placement. This tie-in survey revealed no encroachment. Subsequent to the tie-in survey, City inspectors observed what they believed was encroachment by the partially completed structure. A meeting was held and Potter agreed to call in a registered land surveyor to conduct a resurvey. Potter retained Mr. Robert Turso, a registered land surveyor, who conducted the resurvey and confirmed the suspected encroachment. As a result, it was necessary to remove and rebuild portions of the newly constructed building at considerable expense to the owner, Thomas Burdsall. The testimony of Petitioner's expert witness established that the survey certified by Respondent failed to meet certain minimum technical standards recognized in the land surveyors' profession which are set forth in Rule 21HH-6.03, Florida Administrative Code (F.A.C). Specifically, the following deficiencies were identified: 21HH-6.03(4), F.A.C., requires that reference to all bearings be shown and clearly stated. In the subject survey drawing, no bearings were shown. 21HH-6.03(6), F.A.C., requires the survey to comply with the real property description and all discrepancies with the boundary corners from the boundary lines shown by the survey are to be indicated. Here, the corners were not shown nor were the discrepancies between those corners and plat dimensions shown. 21HH-6.03(7), F.A.C., requires all angles to be shown directly on the drawing or by bearings or azimuths. In this survey, no angles were shown. 21HH-6.03(8), F.A.C., requires that the intersection and the distance to the nearest intersection be shown. These requirements were not met. 21HH-6.02(10), F.A.C., requires adjoining lots and blocks be shown in surveys of lots in recorded subdivisions. This requirement was not met. 21HH-6.03(18), F.A.C., requires monuments to be found or set. This was not accomplished, and no corners were shown on the drawing to be found or set. 21HH-6.03(19), F.A.C., requires boundary monuments be appropriately constructed, identified and set. This was not accomplished here.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a land surveyor for a period of four months. DONE and ENTERED this 14th day of November, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 14th day of November, 1984. COPIES FURNISHED: Joseph Shields, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Esquire Executive Director Board of Land Surveyors 130 North Monroe Street Tallahassee, Florida 32301 Ralph G. Purvis Post Office Box 16084 West Palm Beach, Florida 33406 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph W. Lawrence, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The central issue in case no. 91-7302 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 14, 1991; and, if so, what penalty should be imposed. The central issue in case no. 91-8259 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated November 11, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this case, Respondent has been licensed as a land surveyor in the State of Florida, license no. LS Respondent signed and sealed three surveys for property belonging to Mr. and Mrs. Michael Lengfellner. Those surveys (received in evidence as Petitioner's exhibits 2, 3, and 4) were prepared and certified by Respondent to be in compliance with the Minimum Technical Standards found in Section 472.027, Florida Statutes, and Chapter 21HH-6, Florida Administrative Code. With regard to Petitioner's exhibit 2, the survey drawing shows a 90 degree right angle corner at the northeast property corner when that angle should have been depicted at the southeast corner. The plat for the property shows the 90 degree corner at the southeast corner. Further, the survey reflects incorrect bearing and distances along the easterly property line. Additionally, the angular data provided for the non-radial side of the property lines is not shown on the survey. When a non-radial line is shown, additional information must be given to clarify the dimensions. Such information is not shown on Petitioner's exhibit 2. With regard to Petitioner's exhibit 3, the Respondent, again, did not provide the non-radial line angular data. More specifically, no data was depicted showing the delta, radius, and arc, or chord bearing or angle. With regard to Petitioner's exhibit 4, the Respondent, again, omitted the non-radial line data described above. Further, while Respondent's field notes state the survey was tied to a permanent reference monument, that information was not depicted on the survey drawing. Bearings for the well- defined line relied upon by Respondent were not indicated on the drawing. The survey drawing also did not compare the measured direction and distances in relation to the recorded direction and distances. Finally, this survey failed to provide a legend for abbreviations used in the drawing. Any abbreviation not listed by rule must be explained in a legend. Respondent signed, sealed and certified the survey drawing identified as Petitioner's exhibit 7. With regard to Petitioner's exhibit 7, the Respondent failed to depict the partial lot distances in the survey drawing. The fractional parts of the lots (lots 14 and 15) were not shown on the drawing. Fractional parts of a lot excluded from the surveyed description should be dimensioned. Respondent did not show the distance to the nearest street line or identifiable reference in Petitioner's exhibit 7. Nor did the survey drawing depict the distance to a well defined corner or block corner. In short, the survey did not reference an identifiable point. The Respondent did not provide a legend for the survey drawing, Petitioner's exhibit 7, which explained all abbreviations used on the drawing. The fence depicted on the west boundary of the lots is not related to the boundary lines. Since the fence is pertinent to the survey, the relationship of the fence to the boundary lines should be explained on Petitioner's exhibit 7. Respondent failed to refer Petitioner's exhibit 7 to a specific well- established line. Respondent did not disclose the type of survey performed on Petitioner's exhibit 7. Respondent signed, sealed, and certified the survey drawing identified as Petitioner's exhibit 9. With regard to Petitioner's exhibit 9, Respondent failed to identify the type of road (public or private) depicted on the survey. Further, the first course of the legal description was not shown on the survey drawing. Even if the first course were an easement, it should be depicted on the drawing to reflect the property's access interest as that property is described in the legal description for the parcel. The errors or omissions noted above catalog the instances where Respondent failed to comply with the minimum technical standards for surveys.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Professional Land Surveyors enter a final order finding the Respondent guilty of having violated Section 472.033(1)(h), Florida Statutes, and imposing an administrative fine in the amount of $1500.00. DONE and ENTERED this 30th day of June, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1992. APPENDIX TO CASE NOS. 91-7302 AND 91-8259 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: Paragraphs 1 through 4 are accepted. Paragraphs 5 and 6 are rejected as comment, argument, or irrelevant. The first sentence of paragraph 7 is accepted, the remainder rejected as conclusion of law or recitation of rules. Paragraphs 8 through 11 are accepted. Paragraph 12 is rejected as a conclusion of law. Paragraphs 13 through 17 are accepted. Paragraphs 18 and 19 are rejected as conclusion of law. Paragraph 20 is accepted. Paragraph 21 is rejected as statement of the rule, not fact at issue. Paragraph 22 is accepted except as to the conclusion of law of the violation. Except as to the conclusion of law and the recitation of the rule, paragraph 23 is accepted. Paragraphs 24 and 25 are accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 26 is accepted. Except as to the conclusion of law regarding a violation, paragraph 27 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 28 is accepted. Paragraph 29 is rejected as irrelevant or contrary to the weight of the evidence; the paragraph is vague as it does not specify to which "above abbreviations" it refers. Paragraphs 30 and 31 are accepted. Paragraph 32 is rejected as comment, not fact in dispute. Except as to the conclusion of law regarding a violation, paragraph 33 is accepted. Except as to the conclusion of law regarding a violation, paragraph 34 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 35 is accepted. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as comment or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 44 through 51 are accepted Paragraphs 52 and 53 are rejected as repetitive, comment, or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 54 through 65 are accepted. Paragraphs 66 through 71 are rejected as argument, conclusion of law or comment. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: 1. None submitted. COPIES FURNISHED: William S. Cummins Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Gary D. Hunt 247 Lake Ellen Drive Casselberry, Florida 32707 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
