Findings Of Fact At all times pertinent to this proceeding, respondent held a license to practice land surveying in the State of Florida. In March 1984, Joseph L. Abrams a land developer, hired the respondent to perform certain professional services in connection with a proposed development known as Doug's Unit Number One. Mr. Abrams hired the respondent because he had previously performed land surveying services for Mr. Abrams and had done a good job. Doug's Unit Number One involved six acres of land which had been preliminarily subdivided by an engineer into 14 separate lots. The preliminary drawing by the engineer, showing set backs, easements, and other matters, had been approved by the City of Winter Springs, but Mr. Abrams needed a sealed drawing to record. He therefore hired the respondent as a professional surveyor, to describe the lots in surveying terms and prepare a sealed set of drawings. On March 27, 1984, the respondent prepared a bill for the services and itemized the total cost of $756 as follows: drafting of S/D on linen, $250; cost of linen $6; engineering, calculations telephone calls specifications, Winter Springs conference, etc., $500. Mr. Abrams paid the bill the same day. Mr. Abrams was informed that respondent had paid Burl (Mike) Drennen to do the drafting, and, as soon as the drafting was done, either respondent or Mr. Drennen would deliver the drawings, properly sealed, to Mr. Abrams. The drawings were to be delivered in two to three weeks. Respondent also informed Mr. Abrams that respondent was leaving for New Jersey and would be gone for a few weeks. Respondent gave Mr. Abrams his phone number in New Jersey and Mr. Drennen's phone number. After two weeks elapsed and the drawings had not been delivered, Mr. Abrams began calling the respondent and Mr. Drennen. Sometime in April or May, Mr. Abrams was able to contact respondent in New Jersey and the respondent explained that he would be unable to return to Florida for another two to three weeks due to his wife's serious illness. Mr. Abrams also contacted Mr. Drennen, who informed him that he would not deliver the drawings because he had not been fully paid for his drafting services and because he would have to receive authorization from the respondent before the drawings were released since the respondent had hired him. Mr. Drennen told Mr. Abrams that he would try to contact respondent to get the authorization to release the drawings, but Mr. Drennen was unable to contact the respondent. However after several more conversations with Mr. Abrams, Mr. Drennen agreed to deliver the drawings if Mr. Abrams paid him the remaining money he was owed. 1/ On June 6, 1984, Mr. Drennen delivered the drawings and was paid $180 by Mr. Abrams. However, when Mr. Abrams looked over the sheet, he realized that the sheet had not been sealed. He tried to contact the respondent, and when he was unable to do so, he decided to go to another surveyor. The new surveyor could not simply take the drawing and seal it; he had to do the entire project over again. Mr. Mims, the new surveyor, charged $1,250 which was paid in October or November of 1984 and the sealed drawings were delivered and recorded on December 20, 1984. By letter dated June 7, 1984, Mr. Abrams filed a complaint with the Department of Professional Regulation, and on August 15, 1984, Mr. Alvin Lewis Smith, an investigator with the Department, contacted respondent by telephone in New Jersey to inquire about the matter. The respondent admitted that he had not completed the project, but he stated that he had his seal in New Jersey and, if Mr. Abrams had sent the drawings to him, he could have signed and sealed the drawings and sent them back to Mr. Abrams. However, when asked if he had done any field work for the project, respondent said that he had not and that he couldn't seal the drawings because he hadn't done the field work. Nevertheless, on August 16, 1984, respondent wrote to Mr. Abrams stating that he had taken his seal to New Jersey and that he could sign and seal the linen and have it back to Mr. Abrams in two days if Mr. Abrams would send the drawings to him by Federal Express. At the hearing the respondent testified that the $756 payment was for drawing up the plat and performing calculations and engineering work on the project, but it was not for doing the field work. However respondent acknowledged that the field work had to be done before the plat could be sealed and recorded. All the other evidence and testimony presented at the hearing indicates that the respondent agreed to deliver drawings to Mr. Abrams that were properly prepared and sealed for recording. It is therefore apparent that the $756 paid by Mr. Abrams to respondent was to cover all the work necessary, including the field work, for the plat to be recorded. Without being sealed, the drawings were useless. During the time of this incident the respondent had personal problems which required him to stay in New Jersey. His wife was quite ill and his wife's parents' estate had to be settled. Respondent has been a registered surveyor for over 30 years and, until the instant action, had never had a complaint filed against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, and upon due consideration of respondent's personal circumstances at the time of this incident and respondent's previously unblemished record, it is RECOMMENDED that a final order be entered finding respondent guilty of those acts set forth in Sections 472.033(1)(g) and 472.033(1)(h), Florida Statutes, reprimanding the respondent, and placing him on probation for a period of one year with such terms and conditions as may be deemed necessary by the Board of Professional Land Surveyors. DONE and ENTERED this 23rd day of August, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1985.
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
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 Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Findings Of Fact The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit. The survey gas not certified by the Respondent in accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the owner. The older survey submitted by the Respondent's client was his only source of information in this regard. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed. DONE ADD ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles J Cheves, Esquire Cheves & Rapkin 341 West Venice Avenue Venice, Florida 33595 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NO.: 83-512 vs. LICENSE NO: 1308 WILLIAM J. LINDH, Respondent. /
The Issue Whether Polk County Comprehensive Plan Amendment 17D-08/DMS 59550, adopted by Ordinance 2017-049 on October 3, 2017 (the Plan Amendment), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2017).1/
Findings Of Fact The Parties and Standing Petitioner, WHS Visions of Lakeland, LLC (WHS Visions), is a limited liability company with its principal place of business at 2506 Longhorn Avenue in Lakeland, Florida. WHS Visions owns property in Polk County. William H. and Brandy L. Stanton are the managing members of WHS Visions, and Mr. Stanton is the registered agent. Petitioner, BS Ranch and Farm, Inc. (BS Ranch), is the operating company for the property owned by WHS Visions in Polk County. BS Ranch began operating a soil manufacturing facility on property owned by WHS Visions in Polk County in 2011. Ms. Stanton is the President and a Director of BS Ranch, and Mr. Stanton is a Vice President and Director thereof. The County has challenged Petitioners’ standing to bring the instant action, alleging Petitioners did not submit oral or written comments relating to the Plan Amendment to the County during its consideration of the Plan Amendment. Petitioners argue they made verbal comments concerning the Plan Amendment at both the transmittal and adoption hearings on the Plan Amendment through their agent, Stuart Cullen. Stuart Cullen is a registered Professional Engineer and Vice President of Engineering for George F. Young, Inc., an engineering consulting firm with a business address of 1905 South Main Street in Gainesville, Florida. On February 5, 2014, Mr. and Mrs. Stanton executed “Property Owner Affidavits” authorizing George F. Young and Mr. Cullen to represent “William H. Stanton, Jr. and/or Brandy L. Stanton and/or BS Ranch” in connection with “Land Use Changes and/or associated development plan or permitting applications” regarding the properties owned by them as evidenced by the attached legal descriptions. Petitioners’ Exhibit 12 is a copy of the executed Property Owner Affidavits attached to a development review application dated November 6, 2014, for conditional use approval for the soil manufacturing facility. Mr. Stanton testified that the Property Owner Affidavit was created by him, was a generic form for use by the Stantons, and was submitted with several different applications for land use approvals and permits from the County. In 2015, BS Ranch engaged George F. Young, Inc., on an hourly basis for services related to expansion of the soil manufacturing facility. Mr. Cullen was listed as the contact for George F. Young, Inc., on the contract with BS Ranch, and Mr. Cullen executed the contract on behalf of George F. Young, Inc. The scope of services for the contract included “design, engineering, permitting, meetings” among other services “as necessary for expanding the facility’s operations.” George F. Young, Inc., and Mr. Cullen’s representation has not been limited to permit approvals for BS Ranch operations. Mr. Cullen represented BS Ranch in an application for an amendment to the LDC in 2015 to allow soil manufacturing facilities in Industrial (IND) land use districts. All appearances by Mr. Cullen before the County Commission beginning in 2014 through the date of the final hearing have been on behalf of Mr. and Mrs. Stanton and BS Ranch.3/ The County considered the subject Plan Amendment, CPA 17D-08, concurrently with an amendment to the LDC, LDC 17T-10. On August 22, 2017, the County conducted the transmittal hearing on the Plan Amendment. The County opened a public hearing on the Plan Amendment together with the LDC amendment. Mr. Cullen appeared, introduced himself, and gave his business address in Gainesville. Mr. Cullen did not state whether he was speaking on behalf of any person or entity at the public hearing. Mr. Cullen testified that Mr. and Mrs. Stanton requested him to speak on their behalf and, that, given his numerous appearances in front of the County Commission on behalf of these same clients, it was “well known” that he was speaking on behalf of BS Ranch. Mr. Cullen explained that his representation of BS Ranch “was essentially the only reason I would have been talking.” Mr. Cullen’s comments were limited to the LDC amendment, rather than the Plan Amendment. The substance of his comments was a request to restore a previous version of the LDC which allowed Solid Waste Management facilities to be sited in IND land use districts. His concern was clearly with the effect of the LDC amendment on Petitioners’ existing operation. Mr. Cullen explained to the Commission, “So, in effect, you are taking a [use] that exists in an available land use category that is available for somebody to develop . . . and telling them, no, you can’t do it anymore because of your land use category.” On October 3, 2017, the County Commission opened a public hearing on the Plan Amendment together with the LDC amendment. Mr. Cullen appeared, introduced himself, and gave his business address. Mr. Cullen did not identify whether he was speaking on behalf of any person or entity. Mr. Cullen was the only speaker during the public hearing. Mr. Cullen addressed both the Plan Amendment and the LDC amendment. His comment on the Plan Amendment was limited to a procedural issue. His comments regarding the LDC amendment mirrored the comments he made at the transmittal hearing. Soil Manufacturing Facility The Comprehensive Plan contains the following definition of Soil Manufacturing, adopted in 2016: A facility that makes soil and soil-related products using natural products as the primary ingredients. The manufacturing process utilizes various waste product streams including, but not limited to, yard waste, tree trimmings, other plant materials, pre-consumer food waste, post- consumer food waste, septage, bio-solids, and sludge. These materials are then treated and processed using the natural aerobic and anaerobic decomposition process to create a soil product that is sold and removed from the facility. The Plan Amendment The Plan Amendment makes the following pertinent changes to Division 4.400, Glossary, of the Comprehensive Plan: MATERIALS RECOVERY FACILITY: A solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for re-use, repurposing, use as a fuel or soil amendment, or any combination of such materials including without limitation a Soil Manufacturing facility but shall not include soil manufacturing. * * * SOLID WASTE MANAGEMENT FACILITY: Any solid waste disposal facility, solid waste transfer station, materials recovery facility, volume reduction facility, other facility, or combination thereof, the purpose of which is resource recovery of the disposal, recycling, processing or storage of solid waste. Salvage Yards, Construction Aggregate Processing, and Construction Aggregate Storage and Soil Manufacturing are excluded from this definition, but may by [sic] accessory uses to a solid waste management facility. Generally, the change brings a soil manufacturing facility within the definition of a Solid Waste Management Facility. The full impact of the change is not apparent from the face of the Plan Amendment alone. The Plan Amendment must be analyzed in conjunction with the LDC amendment.4/ LDC 17T-10 deletes Soil Manufacturing from Table 2.1, the LDC “Use Table for Standard Land Use Districts,” and deletes Soil Manufacturing as a conditional use subject to regulations of Chapter 3. This change effectively eliminates soil manufacturing facilities as an allowable, albeit conditional, use in IND land use districts. LDC 17T-10 further deletes in its entirety the stand- alone criteria for conditional use approval of soil manufacturing facilities, instead regulating those facilities as follows: Section 303 Criteria for Conditional Uses Manufacturing, Soil All Soil Manufacturing facilities shall be regulated by the Solid Waste Management Facilities standards set forth in this LDC Section 303 and the Comprehensive Plan except as provided in subsection 2, below. Any Soil Manufacturing facilities with a valid level 4 review approval issued under the LDC as of the effective date of LDC 17T- 10 may continue to develop in accordance with the approval in place as of the effective date of LDC 17T-10. Any such previously approved facility shall continue to be governed the Soil Manufacturing regulations adopted by Ordinance 16-040. Any such previously approved facility may be modified or expanded pursuant to Section 120 without becoming subject to the Solid Waste Management Facility standards set forth in this LDC Section 303 and the Comprehensive Plan. This change brings soil manufacturing facilities under the County’s regulatory scheme for Solid Waste Management facilities. Both the existing Comprehensive Plan (Future Land Use Policy 2.125-O1) and the LDC restrict location of Solid Waste Management Facilities to Institutional land use districts. Together the Plan Amendment and the LDC amendment restrict soil manufacturing facilities to Institutional land use districts. Petitioners’ property and soil manufacturing operation is located in the IND land use category. Thus, together the Plan Amendment and the LDC amendment render Petitioners’ use non-conforming.5/ Solid Waste Siting Ordinance The LDC Amendment changes the development review process and criteria for siting, operating, and expanding a soil manufacturing facility, by bringing them under the purview of the Solid Waste Siting Ordinance (Siting Ordinance). The Siting Ordinance requires a Level 4 site plan review and consideration of the following: The haul routes from the nearest arterial roadway, and proposed points of access to the property; The proposed date the construction will commence; The volume of waste to be received; An explanation of the types of wastes to be received; A statement specifying the hours of operation; The source of the solid waste to be received; The levels of odor, dust, and noise anticipated to be generated by the facility and proposed mitigation thereof; Proposed buffering, which may include more landscape buffering than required by the code; and The height of all structures and other improvements. The Siting Ordinance prohibits direct access to a paved local commercial, collector, or arterial roadway, or to a local residential road. It also sets mandatory setbacks for Landfills, Incinerators, and Materials Recovery facilities. The setbacks applicable to Materials Recovery facilities are 100 feet on all sides, and 500 feet “when adjacent to residentially used or designated property.” The 2016 Amendment In 2016, upon application by BS Ranch, the County amended the Comprehensive Plan and LDC to create “Soil Manufacturing Facility” as stand-alone use, and created a “carve out” from the Siting Ordinance for soil manufacturing facilities. Under existing LDC section 303, soil manufacturing facilities are subject to a minimum size of 100 acres, located a minimum of one-half mile from residential uses and any school or hospital, 200 feet from any natural waterbody, and 1,500 feet from any wellhead supplying a public water system. The restrictions include a minimum setback of 300 feet from residential districts and a requirement to sequester all processed liquids on site either with a liner or other physical barrier. Under the existing regulations, a soil manufacturing facility must submit a Facility Operating Plan (Operating Plan) including the following: General explanation of the types of wastes to be received; Identification of the general sources of the waste to be received; Regulatory permits required to operate all phases of the proposed facility; Vehicle circulation on and off site; Methods for mitigation of all odor, dust, and noise anticipated to be generated by the facility to include: best management practices to address potential odor sources; the monitoring of odors at the project perimeter; the identification of potential off-site odor receptors; and a response protocol for complaints and the resolution of substantial complaints; Description of the treatment process in map and narrative form; Description and mitigation plan to address the facility’s interaction with environmentally sensitive areas, any structures, and the safety of residents. If a soil manufacturing facility is the “substantiated source of objectionable off-site odors,” the LDC requires the operator to “immediately take steps to resolve the odor event or curtail operations until the necessary course of action has been identified and implemented.” Lastly, the LDC deems any modification to the facility Operating Plan to be a major modification subject to Level 4 review. The Plan Amendment essentially reverses the 2016 amendment, restricting the location of soil manufacturing facilities to Institutional land use districts and subjecting them to regulation as a solid waste management facility pursuant to the Siting Ordinance. Challenges to the Plan Amendment Data and Analysis The overarching basis on which Petitioners challenge the Plan Amendment is a lack of supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.” The County suggests the Plan Amendment is supported by three categories of data. Survey Data First, the County points to the data from a survey undertaken in 2016 during review of the BS Ranch application to treat soil manufacturing facilities as a stand-alone use. In 2016, staff undertook a survey of 11 local government jurisdictions to evaluate the use classifications given to soil manufacturing facilities, land use districts in which they were allowed, the process by which they could be sited (e.g., use by right, conditional, special exception), required setbacks, and whether an operation plan was required. County staff surveyed the two adjoining jurisdictions, Highlands and Hardee Counties, and nine jurisdictions with “similar land use characteristics,” industries, and access to the I-4 corridor. County staff found, “[i]n the 11 counties, the proposed Soil Manufacturing use . . . is mostly considered a solid waste management facility and often limited to the same places that landfills are placed.” Of the 11 counties, six classified the facilities as solid waste management facilities or solid waste composting facilities, and a seventh as a landfill. Staff continued, “[h]owever, nine out of the 11 counties direct private landfills to industrial districts . . . . This supports the applicant’s request to locate these facilities in IND districts.” In 2016, staff analyzed the then-current regulating scheme which categorized soil manufacturing within a broad umbrella of Solid Waste Management facilities. In the staff report on the 2016 plan amendment, staff found that some uses under that umbrella “have manufacturing characteristics such as dust and noise . . . and the manufacturing of soil or soil amendments as described in the Materials Recovery facility.” In the report, staff concluded as follows: The applicant’s use has a significant manufacturing component and has more off site impacts than a typical Institutional Future Land Use designation which typically includes a school or fire station. Furthermore, Institutional Future Land Use designations are located throughout the County where manufacturing impacts would be significant to neighboring property owners. Therefore, this amendment better aligns a manufacturing component with the most appropriate land use which helps protect the environment and quality of life. In the 2016 staff report for the accompanying LDC amendment, staff concluded, “The IND district is the most appropriate location for this proposed use.” Staff made a finding that the 2016 amendment was internally consistent with Policy 2.113-A1 of the Comprehensive Plan governing the uses and activities allowed in the IND district. Based on this data and analysis, staff recommended allowing soil manufacturing facilities as a conditional use in IND districts requiring Level 3 review (Planning Commission approval). The County adopted soil manufacturing facilities as a conditional use in IND districts requiring Level 4 review (County Commission approval). With regard to off-site impacts, staff found as follows: Whenever solid and liquid wastes are brought onto a property, the immediate response is to be concerned about neighboring property values, particularly that of permanent residents. The best form of protection from the impacts associated with wastes (smell primarily) is separation. Staff reviewed the 11 counties surveyed for their setback requirements between residential properties and proposed salvage yards, solid waste facilities, and any uses that process septage waste. The majority of the setback distances exceeded 150 feet. The ones that were less required conditional use approval for which the setback could be established based on location. The County adopted a requirement to site soil manufacturing facilities a minimum of one-half mile from residential uses and require a minimum 300-foot setback from residential districts. Finally, staff addressed the risk of environmental effects. In the staff report, staff stated: As a condition of approval in the amendment, it is recommended that soil manufacturing processes have an operation plan. Such a plan not only assesses risk and provides for contingencies, but also demonstrates the applicant’s competency in running the facility. In the survey staff conducted, four of the 11 jurisdictions required this for their soil manufacturing equivalents. Key to all of the required operation plans are reporting of the type of waste coming in, the process and byproducts, as well as the environmental analysis and waste containment assurances. The County implemented staff’s recommendation by requiring the above-summarized Operating Plan. The County argues that the 2016 survey is relevant and appropriate data to support the Plan Amendment because the survey found that most jurisdictions classified soil manufacturing facilities as a solid waste management facility and often limited those uses to the same land use categories in which landfills are located. Staff did not testify at the final hearing. No evidence was introduced to counter staff’s 2016 findings that Institutional land use districts are located “throughout the County where manufacturing impacts would be significant to neighboring property owners”; that IND designations comprise less than .6 percent of the unincorporated land area; and staff’s opinion that “[t]he IND district is the most appropriate location for” soil manufacturing facilities. In support of the Plan Amendment, which regulates soil manufacturing facilities as solid waste management facilities, the County introduced expert witness opinions that soil manufacturing facilities exhibit many of the same characteristics as solid waste management facilities, and are, in fact, solid waste management facilities. For example, the waste streams accepted at a soil manufacturing facility are the same types of waste processed at a solid waste management facility; the soil manufacturing facility employs the same treatment operations as a solid waste management facility; the two types of facilities pose many of the same environmental, human health, and nuisance risks; and soil manufacturing facilities are subject to Department of Environmental Protection (DEP) permitting as solid waste management facilities. The expert witness testimony was persuasive: soil manufacturing facilities have many of the same characteristics as waste management facilities; thus regulation of those facilities as solid waste management facilities is entirely appropriate. DEP Enforcement Data The County’s conclusion that a soil manufacturing facility is practically identical to a solid waste management facility, and thus should be regulated the same, was based largely in part on DEP permitting and enforcement records the County deems to be data and analysis supporting the Plan Amendment. BS Ranch has obtained several permits from DEP. BS Ranch received a Source Separated Organics Processing Facility Registration in 2010, which was renewed annually through 2013. DEP issued an Environmental Resource Permit (ERP) for construction of certain facilities at the site on February 26, 2016. On March 25, 2016, DEP issued BS Ranch both an Industrial Wastewater Permit (IWP) and an Organic Recycling Facility permit. DEP conducted a wetlands jurisdictional determination on the property and issued a wetland delineation determination on May 3, 2016. As new data supporting the Plan Amendment, the County introduced documentation of DEP enforcement actions taken against BS Ranch’s Organic Recycling Facilities permit. The documents include an October 2014 Warning Letter which culminated in denial of BS Ranch’s Organic Recycling Facility permit, entry of a Consent Order on February 3, 2015, and a Consent Order with Corrective Action Plan on November 25, 2015. The County also introduced a Warning Letter and other correspondence from 2017 relating to alleged violations of BS Ranch’s IWP and ERP. Among the issues addressed in the Warning Letter are off-site odor mitigation and the unauthorized location of septage and biosolids on the property. Code Enforcement Data The last category of data relied upon by the County to support the Plan Amendment is the County’s own code enforcement actions against Petitioners’ operation. The County issued its conditional use approval of Petitioners’ operation, including its Operation Plan, on December 6, 2016. On March 24, 2017, the County issued notices of violation6/ citing WHS Visions with violating various LDC provisions based largely on Petitioners’ operation as “the reported source of objectionable off-site odors.” The notices both require WHS Visions to seek additional approvals of the facility and impose a deadline of April 5, 2017, for WHS Visions to correct the violations. The County also issued a “Cease and Desist Illegal Activity” letter to WHS Visions. The letter refers to “numerous instances of fugitive objectionable odor emissions severely impacting a large number of offsite residents, employees of nearby businesses, and Polk Parkway employees.” In the letter, the County required WHS Visions to “immediately cease and desist” operations, particularly receipt of “putrescible wastes such as vegetative wastes, food scraps, animal by-products, animal manure, wastewater treatment facility effluent, biosolids, septage, and organic sludges” until all levels of approval are completed. Petitioners argue these enforcement documents are not the type of data contemplated in section 163.3177(1)(f), which includes “surveys, studies, community goals and vision, and other data available at the time of adoption” to support the Plan Amendment. Petitioners are correct that the enforcement actions are neither quantitative nor qualitative data regarding the off-site impacts associated with soil manufacturing facilities. The documents are data, however anecdotal, regarding the experience of this one facility and its related permits. They are not categorically excluded from data contemplated by 163.3177(1)(f). Appropriate Reaction to the Data The statute requires the local government’s reaction to the data be “appropriate” and “to the extent necessary indicated by the data.” § 163.3177(1)(f), Fla. Stat. The DEP enforcement and code enforcement data arguably support the County’s decision to subject soil manufacturing facilities to a different regulatory scheme. Expert witnesses testified that the Siting Ordinance was superior to the existing regulations for the spatial location of waste streams on site, as well as the length of time wastes could remain on site.7/ The Siting Ordinance also contains a stop-work order enforcement tool. However, the Plan Amendment is not an appropriate reaction to anecdotal data regarding the off-site odor and environmental impacts of one soil manufacturing facility by allowing those facilities in land use districts which are more dispersed throughout the County. The enforcement actions do not overcome the County’s 2016 analysis and findings that the use “has more off site impacts than a typical Institutional Future Land Use designation,” that “Institutional Future Land Use designations are located throughout the County where manufacturing impacts would be significant to neighboring property owners,” and its conclusion that, for Polk County, “the IND district is the most appropriate location for this proposed use.” None of the expert planning witnesses had evaluated the proximity of Institutionally-designated properties to residential properties in the County or offered opinions regarding the appropriate placement of soil manufacturing facilities within the County. There is no record evidence that the County has fewer Institutional land use designations than it did in 2016, that those locations are less dispersed, or that fewer properties with those designations are located adjacent to residentially- designated properties. Armed with new data documenting fugitive air emissions from the existing facility, as well as potential for human health risks, the County made a decision to site similar facilities in the future in land use districts closer in proximity to residential properties. That decision was not an appropriate reaction to the data. Internal Inconsistency In the Petition for Administrative Hearing, Petitioners alleged the Plan Amendment “has created internal inconsistencies . . . by relying on the same data and analysis” relied upon in support of the 2016 amendments. Petitioners did not identify any specific Comprehensive Plan element, policy, or map with which the Plan Amendment is alleged to be inconsistent. Instead, Petitioners’ expert testified generally that the Plan Amendment created internal inconsistencies because the data on which it was based, namely the 2016 survey of jurisdictions, was likewise the basis for the County’s 2016 amendment establishing IND as the appropriate land use category in which to site soil manufacturing facilities. Petitioners’ evidence was insufficient to support a finding that the Plan Amendment creates an inconsistency with any element, policy, or map of the existing Comprehensive Plan. Meaningful and Predictable Standards Finally, Petitioners challenge the Plan Amendment as contrary to section 163.3177(1), which requires comprehensive plans to “guide future decisions in a consistent manner” and establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” Petitioners’ expert testimony on this issue was conclusory and the logic somewhat circular. The underlying criticism was, again, the inconsistency of using the same data to reach diametrically-opposed conclusions regarding the appropriate land use district to site soil manufacturing facilities. Further, the expert testified that because the Plan Amendment rendered Petitioners’ property non-conforming (both in its use and applicable development standards), it created “uncertainty . . . for any property owner wanting a reasonable and consistent development plan” for his or her property, and “uncertainty and inconsistency of standards for controlling the distribution of land uses” because it “changes the standards by which uses are classified as Industrial.” On the contrary, the Plan Amendment does not create uncertainty for siting soil manufacturing facilities in the future. Under the Plan Amendment those facilities are clearly limited to Institutional land use categories, subject to the Siting Ordinance and Level 4 development review. While the Plan Amendment renders Petitioners’ property non-conforming, that is not a sufficient basis on which to find that the Plan Amendment renders the entire Comprehensive Plan without “meaningful and predictable standards for the use and development of land” generally. Other Issues Petitioners included in the joint pre-hearing stipulation as disputed issues, whether the Plan Amendment was “vague” and permitted the County “to arbitrarily and capriciously approve or deny plan amendments or development approvals, thereby subjecting landowners to financial burdens and creating internal inconsistencies in the [Comprehensive Plan].” Respondent objected to these issues as outside the scope of this proceeding. The issue in this case is whether the Plan Amendment is “in compliance,” as that term is defined in 163.3184(1)(b). The governing statute does not include “vagueness,” “arbitrariness,” or “capriciousness” as a standard for compliance determinations, and Petitioners cited no authority supporting such a reading of the statute. Petitioners’ arguments on this point appear to recast the data and analysis argument in hopes of getting a second bite at the apple. Assuming, arguendo, the Plan Amendment could be invalidated on the basis of vagueness, arbitrariness, or capriciousness, Petitioners did not introduce any credible evidence to support a finding that the Plan Amendment is either vague, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining Polk County Comprehensive Plan Amendment 17D-08/DMS 59550, adopted by Ordinance 2017-049 on October 3, 2017, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 14th day of March, 2018, 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 14th day of March, 2018.
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
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
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.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Marion County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioner, William B. Hunt, owns property and resides within the County. Petitioner also submitted written comments to the County during the public hearing held on April 7, 1994, concerning the adoption of an amendment to the County's comprehensive plan. Therefore, he is an affected person within the meaning of the law and has standing to bring this action. The nature of the dispute In July 1991, the County initially transmitted its proposed comprehensive land use plan to the DCA. The DCA issued an Objections, Recommendations, and Comments (ORC) report for the County's plan on October 18, 1991. The County issued a response to the DCA's ORC report and adopted its comprehensive plan in January 1992. In April 1992, the DCA issued a notice of intent to find the comprehensive plan not in compliance. In an attempt to bring the County's plan into compliance, the DCA and County entered into a settlement agreement in March 1993. Pursuant to the agreement, the County was supposed to adopt certain remedial amendments to its comprehensive plan. In August 1993, the County adopted remedial amendments to its comprehensive plan. In October 1993, the DCA issued a notice of intent to find the remedial amendments not in compliance. In another attempt to bring the County's plan into compliance, the DCA and County entered into another settlement agreement in February 1994, and into an addendum thereto in April 1994. Pursuant to this agreement, the County adopted the agreed-upon remedial amendments to its comprehensive plan by Ordinance No. 94-12 on April 7, 1994. On May 30, 1994, the DCA issued a cumulative notice of intent to find the County's comprehensive plan and remedial amendments in compliance. On June 18, 1994, petitioner filed a petition to intervene with the Division of Administrative Hearings seeking to challenge the newly amended plan. After being advised that the petition was filed in the wrong forum, and that he incorrectly sought to intervene rather than to initiate a new proceeding, on December 13, 1994, petitioner filed a petition for an administrative hearing with the DCA. In his lengthy petition, which contains allegations running some fifty-four pages in length, petitioner has challenged the County's plan, as amended, in numerous respects. In his proposed order, however, petitioner has summarized his complaints into the following categories: (a) "many" of the plan objectives are not "specific or measurable," (b) "many" policies in the plan are not "adequate," (c) "many" of the required objectives and policies are not found within a particular element, (d) "many" policies in the plan defer implementation to the land development regulations, or to other kinds of regulations, that are to be adopted after the plan is adopted, (e) "publications" adopted by reference in the plan "have not been adequately cited," (f) "the plan does not control growth," and it "designates an over- allocation of land that can be developed at non-rural densities and intensities," (g) the plan violates the concurrency provision on State Road 200, and (h) the plan fails to include an analysis of projected mass transit level of service and system needs. Is the Plan, as Amended, in Compliance? Generally In attempting to prove the allegations in his petition, petitioner offered only the testimony of a DCA land use planning manager and the County's acting planning director, both of whom concluded that the plan, as amended, was in compliance. Because both witnesses generally refuted all allegations raised in the petition, and they disagreed with the theories advanced by petitioner through his direct examination, the record in this case clearly supports a finding that the plan, as amended, is in compliance. Notwithstanding this state of the record, the undersigned will address in general terms the broad issues raised in the petition, namely, the adequacy of the plan's supporting data and analysis, the adequacy of the goals, objectives and policies, the plan's internal consistency, and the plan's consistency with the state comprehensive plan. In addition, the undersigned will address the more specific objections raised by petitioner in his proposed recommended order. Adequate data and analyses Petitioner has alleged that the County's plan, as amended, is not in compliance because ten elements were not supported by adequate data and analyses, as required by Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Goals, objectives and policies Petitioner further alleged that the County's plan, as amended, is not in compliance because a number of the goals, objectives and policies (GOPs) contained in the various elements were inadequate in that they did not meet some of the requirements for GOPs in Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Internal consistency of plan Petitioner next alleged that the County's plan, as amended, is not in compliance because the internal consistency requirements in Chapter 9J-5, Florida Administrative Code, had not been met. Based on the findings of fact above, however, it is clear that the evidence failed to show to the exclusion of fair debate that the County's plan contained GOPs that were in conflict with each other, thereby rendering the plan internally inconsistent. Consistency with state comprehensive plan Petitioner has also alleged that the County's plan, as amended, is not in compliance because it is not compatible with, and does not further, a number of goals and policies of the State Comprehensive Plan, which are contained in Section 187.201, Florida Statutes. Petitioner failed to present any evidence showing that the County's plan, as amended, is not compatible with, and does not further, the State Comprehensive Plan. Other objections Petitioner has alleged in his proposed recommended order that some of the objectives and policies used by the County do not conform to the definition of those terms in Rule 9J-5.003, Florida Administrative Code. However, the evidence established that those definitions are not mandatory, they merely provide clarification for the local government, and the local government is free to use other definitions in its plan so long as they generally conform with the codified definition. Since the challenged objectives and policies generally conform with the above rule, and they provide the means for their achievement, they are found to be in compliance. Petitioner also alleges that some elements in the plan lack certain policies and objectives required by chapter 9J-5 and thus are deficient. The more persuasive evidence shows, however, that each of the challenged elements was adequate in terms of containing the necessary policies and objectives, and thus the requirements of chapter 9J-5 have been satisfied. Petitioner next alleges that many of the policies in the plan defer implementation to the land development regulations (LDRs) or other regulations that will not be adopted until after this plan becomes effective. Contrary to petitioner's assertion, however, some of the policies do not defer to the LDRs. In cases where they do, the LDRs must still be adopted in accordance with strict time limitations established by Chapter 163, Florida Statutes, and thus the necessary guidance in the plan is not lacking. Petitioner further contends that "publications" adopted by reference in the plan "have not been adequately cited." He specifically refers to policy 1.5 of the Traffic Circulation Element which adopts by reference, and without specific citation to a page number, a manual entitled Institute of Traffic Engineers Trip Generation. Through testimony of witness Manning, however, it was established that it is impractical and unnecessary for the local government to cite specific page numbers of the manual in the plan itself. Indeed, reference to the title of the manual is sufficient. Therefore, those provisions of the plan which incorporate by reference other publications without detailed citations are found to be in compliance. Petitioner has also complained that the plan does not control growth, and it over allocates land to non-rural purposes. In this regard, the County's future allocation of land use was made through the use of a multiplier, which is a planning technique for assessing future land use needs. This technique, and the accompanying calculations, were not shown to be unreasonable or to produce inappropriate results. It was further established that, in making its projections, the County exceeded the requirements of chapter 163. Indeed, in the words of a DCA planner, the County made one of the "most honest assessments of development of any plan in the state." Petitioner next asserts that policy 2.1 of the Traffic Circulation Element allows a 20 percent degradation to the existing level of service for two segments on State Road 200, and thus it "violates the concurrency provision of the act and Rule 9J-5." While the level of service for roads must be consistent with Department of Transportation standards to the maximum extent possible, if it cannot meet them, the local government may show justification for deviation from those standards. In this case, the County presented justification for deviating from those standards by 20 percent on State Road 200 as authorized by Rules 9J-5.0055(1)(d) and 9J-5.007(2)(b), Florida Administrative Code. Therefore, the questioned policy is deemed to be in compliance. Finally, petitioner alleges that the plan fails to include an analysis of projected mass transit level of service and system needs. Admittedly, such an analysis is not found in the plan. However, this is because the County does not operate a public mass transit system. In circumstances such as these, the County is required by chapter 163 to have a mass transit element in its plan, but it is not required to adopt an objective on this subject. Therefore, the absence of such an analysis does not render the plan not in compliance.
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 Marion County's comprehensive plan, as amended by Ordinance No. 94-12, is in compliance. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7071GM Petitioner: 1. Partially accepted in finding of fact 2. 2-3. Partially accepted in finding of fact 1. 4a.-4c. Partially accepted in finding of fact 14. 4d. Partially accepted in finding of fact 15. 4e. Partially accepted in finding of fact 16. 4f. Partially accepted in finding of fact 17. 4g. Partially accepted in finding of fact 18. 5. Partially accepted in finding of fact 19. 6. Partially accepted in finding of fact 20. 7-9. Covered in conclusions of law. Respondents: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 6. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 10. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 13. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: William B. Hunt 3531 S. E. 30th Terrace Ocala, Florida 34471 Gordon B. Johnston, Esquire 601 S. E. 25th Avenue Ocala, Florida 34471-2690 Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
The Issue At issue herein is whether or not Petitioner correctly responded to Case VI on Part II of the Land Surveyors Examination, and if so, whether he should have received a passing grade.
Findings Of Fact Based upon my observation of the Petitioner and his demeanor while testifying, depositions and other documentary evidence received, and the entire record compiled herein, the following relevant facts are found: Petitioner, Garland R. Hardwick, was a candidate for the Land Surveyors Examination administered October 29 and 30, 1901. Case VI, a legal description, constituted a portion of the examination given on October 30, 1981. (Testimony of Petitioner) Case VI required the examinee to prepare a legal description of the portion of a road right-of-way which cut across a lot within a platted subdivision for inclusion in a right-of-way deed. (Petitioner's Exhibit 2 and the deposition of David Gibson, page 8) The examinee was further asked to "calculate any quantities needed." The credit given for Case VI was 20 points. As drafted, Case VI called for certain calculations to be performed by the examinee. The type of calculations required depended on the description provided, i.e., metes and bounds or strip conveyances. A strip form of conveyance required description and calculation of the center line. (Gibson deposition, pages 11-12) A portion of the credit given on Case VI was for calculations. If a strip form description were used in Case VI, the minimum calculations required for credit were those of the arc length (center line) and the radius. If these minimum calculations were not performed by an examinee having prepared a strip form or center line description, no credit was given to the examinee. (Deposition of Gibson, pages 14-19) Petitioner's response to Case VI is a strip or center line description. Petitioner did not calculate or describe the distance along the arc of the center line, or the right-of-way as it cut across the lot in question. Petitioner therefore received no credit on Case VI for calculations. (Testimony of Petitioner [TR pp 6-8] and Petitioner's Exhibit No. 2) David Gibson, an examination consultant who was solely responsible for the drafting and grading of Case VI, gave his expert opinion that the required calculations of examinees preparing a strip, or center line description, were consistent with the standards of the profession. (Gibson deposition, page 16) PETITIONER'S POSITION During the hearing, Petitioner related that no calculations or descriptions of the distance along the arc of the center line for Case VI were needed, and in support thereof, referred to examples of strip descriptions filed within Report 4, Metes and Bounds Descriptions by Fant, Freeman and Madson, a book referred to on the suggested book list provided to examinees. petitioner cited Cases 33 and 37 within the above-referred text as being examples similar to Case VI on the examination. The sample description given in Case 33 provides calculations and distances along the center line of the right-of-way. (Testimony of Petitioner, TR pages 6, 8, 15-20, and Petitioner's Exhibit 3) Further, Petitioner points to the fact that in the event of a dispute the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way. Case 33 of the above referred reference book appeared similar to Case VI of the subject examination. (Testimony of Petitioner, TR p. 16) In that example, center line distances are calculated and "would enable the surveyor to locate this strip . . . help him maintain the identity of this parcel or strip." (Petitioner's testimony TR p. 17) Case number 35 and others referred to during the hearing by Petitioner (save Case 33) were, at best, limited in similarity and would not require a different result. (TR p. 20)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Board of Land Surveyors, enter a Final Order denying Petitioner's request and the relief sought to the effect that he be awarded a passing grade on the Land Surveyors Examination administered to him on October 29 and 30, 1981. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.
