The Issue The issue to be determined in this case is whether the proposed amendment to the Pinellas Countywide Plan Map, changing the land use designations on 34.6 acres of land in Safety Harbor, Florida, should be approved.
Findings Of Fact The Parties Petitioner is the contract purchaser of 34.6 acres of land (“the Property”) located near the northeast corner of 10th Street South and McMullen-Booth Road in the City of Safety Harbor. Respondent is the Board of County Commissioners of Pinellas County, in their capacity as the CPA. The Proposed Amendment The Amendment would change the land use designations for nine parcels within the Property. The Amendment would make the following changes to the current land use designations: However, the parties’ dispute focuses on the 15.8-acre parcel that is now designated Industrial Limited (“IL”). The Amendment would change the designation of the parcel to Residential Medium (“RM”). Existing Land Uses on the Property and Surrounding Area Located on the 15.8-acre parcel (referred to hereafter as the “IL parcel” or “Richman parcel”) are numerous industrial buildings and structures associated with a citrus processing facility that is no longer in operation. There are no uses being made of the other eight parcels that comprise the Property. The balance of the Property is undeveloped and relatively undisturbed. There are wetlands as well as a creek on the Property. There is an extensive tree canopy in the undeveloped area. Access to the IL parcel is via 10th Street South (S.R. 590), which is a two-lane, undivided roadway on the southern boundary. There is no rail access to the IL parcel. To the north and east of the Property are relatively affluent neighborhoods of single-family residences on lands designated Residential Suburban and Residential Low. The residences on the north are separated from the IL parcel by the large undeveloped area, but the residences to the east are immediately adjacent to the IL parcel. McMullen-Booth Road, a six-lane arterial roadway, runs along the northwestern boundary of the Property. On the southwestern boundary, adjacent to the IL parcel, are lands designated Residential/Office/Retail where there is a drug store, car wash, and bank. Across 10th Street South, on the southeast corner of its intersection with McMullen-Booth Road, is a gas station/convenience store. Also across 10th Street South, opposite the entrance to the citrus processing facility, is land designated IL and used for warehousing, auto-repair, and other uses. The Scenic Non-Commercial Corridor McMullen-Booth Road has been designated by Pinellas County as a Scenic Non-Commercial Corridor (“SNCC”). The SNCC designation includes lands bordering both sides of McMullen-Booth Road. The SNCC designation identifies preferred land uses within the corridor to achieve the CPA’s goal to preserve and enhance the scenic qualities of the corridor. The western half of the IL parcel is within the McMullen-Booth Road SNCC. Under the SNCC policies, the preferred land use for the western half of the parcel is “Mixed Use.” The Amendment would allow for land uses consistent with the SNCC. The Development Agreement The proposed Amendment is accompanied by a Development Agreement between Richman and the City of Safety Harbor which provides more specifically for how the Property would be developed. Among other items, the Development Agreement provides for: 246 apartment units in three-story and four-story buildings; a 25,000-square-foot office building fronting on McMullen-Booth Road; a 182-foot buffer between the nearest apartment unit and the residences to the east; a requirement that no three-story building will be located within 450 feet of the eastern property line; and the preservation of more than 10 acres of the undeveloped area, including the creek and wetlands. Action on the Proposed Amendment Changing a land use designation in the City of Safety Harbor requires an amendment to the Countywide Plan Map, which depicts all land use designations in Pinellas County and its municipalities. Countywide Rules are used in conjunction with the Countywide Plan and they address amendments to the Countywide Plan Map. The Countywide Plan and Countywide Rules are created and administered by the CPA. Proposed amendments to the Countywide Plan Map are reviewed by the Pinellas County Planning Advisory Committee (“PAC”), which is comprised of planners from most of the local governments in Pinellas County. The PAC makes a recommendation to the Pinellas Planning Council on a proposed amendment. The PAC recommended approval of the Amendment. The staff of the Pinellas Planning Council prepared an “Agenda Memorandum,” which included the following findings which are supported by the preponderance of the evidence presented in this case and, therefore, are findings of fact in this Recommended Order: The RM land use is well-suited to serve as a transition from non-residential areas to the west and south and the residential neighborhoods to the east and north. The area is not part of a larger consolidated industrial area, but the Richman parcel, together with the IL parcel across 10th Street South, could function as a small industrial park. The IL category, with all potential uses allowed, is “in the broadest sense” inconsistent with single-family uses to the north and east. The IL parcel can accommodate certain “target employers.” At the final hearing, target employers were identified as “office light industrial and research and development.” The environmentally sensitive areas on the Property and adjacent to single-family residences limit the types of industrial uses that could be located on the IL parcel. The Amendment does not foreclose the opportunity to attract target employers to other parcels within the Property. “On balance,” the Amendment is consistent with the Countywide Rules. The Council staff recommended approval of the Amendment. As partial mitigation for the loss of the IL land use, the staff recommended that Richman work with the County to attract target employers to other parcels within the Property. The Council held a public hearing and voted to recommend approval of the Amendment. The Pinellas County planning staff recommended approval of the Amendment to the CPA. The CPA, at a public hearing, voted to deny the Amendment, based primarily on concern over the loss of industrial lands. Relevant Criteria Section 5.5.3.1 of the Countywide Rules states: In the consideration of a regular Countywide Plan Map amendment, it is the objective of these Countywide Rules to evaluate the amendment so as to make a balanced legislative determination based on the following six (6) Relevant Countywide Considerations, as they pertain to the overall purpose and integrity of the Countywide Plan. Of these six criteria, the parties stipulated that only the consideration stated in Section 5.5.3.1.1 is at issue in this case. That section states: Consistency with Countywide Rules. The manner in, and extent to, which the amendment is consistent with Article 4, Plan Criteria and Standards of these Countywide Rules and with the Countywide Plan as implemented through the Countywide Rules. The parties disputed what criteria are “implemented through the Countywide Rules.” Richman contends that to be implemented through the Countywide Rules, a policy must be contained in the Countywide Rules. The CPA contends that there are provisions of the Plan that must be considered even if they do not also appear in the Rules. As set forth in the Conclusions of Law, in order for a provision of the Countywide Plan to be implemented through the Countywide Rules so that the provision can act as a criterion applied by the CPA in the approval or denial of a proposed amendment to the Countywide Plan Map, the provision must be repeated, paraphrased, or adopted by reference in the Countywide Rules. In this regard it is noted that Resolution 06-3 of the Pinellas Planning Council, which discusses the need to reserve industrial parcels for target employers, was referred to in the Council's Agenda Memorandum and discussed in the public hearing before the CPA. However, Resolution 06-3 is not implemented through the Countywide Rules and, therefore, is not a source of criteria applicable to the Amendment. The SNCC designation for McMullen-Booth Road is in the Countywide Rules and, therefore, must be considered by the CPA in its review of the Amendment. Section 2.3.3.6.1 of the Countywide Rules is relevant to the issues raised and states in part: Category/Symbol – Industrial Limited (IL) Purpose – It is the purpose of this category to depict those areas of the county that are now developed, or appropriate to be developed, in a limited industrial manner; and so as to encourage the reservation and use of consolidated areas for industrial and industrial/mixed use in a manner and location consistent with surrounding use, transportation facilities, and natural resource characteristics. In addition to this statement of purpose, the section addresses locational characteristics, traffic generation characteristics, density/intensity characteristics, density/intensity standards, and “other standards.” Section 2.3.3.6.1 identifies the “primary uses” allowed in the IL land use category as office, research/development, light manufacturing/assembly, wholesale/distribution, and storage/warehouse. The “secondary” uses allowed are residential, retail/commercial; personal service/office support, commercial/business service, commercial recreation, temporary lodging, institutional, transportation/utility, recreation/open space, transfer/recycling, incinerator facility, and agricultural. The CPA’s desire for certain target employers to use the IL parcel fails to account for the fact that there are industrial uses of the site that are allowed under the IL land use category in the Countywide Plan that would cause noise, odor, truck traffic, or other conditions that are incompatible with adjacent residential uses. Understandably, the CPA would like to see the Richman parcel used in the future by one of the target employers, but the CPA does not acknowledge that the IL designation authorizes other uses that would be incompatible with surrounding uses. At the final hearing, the County’s Director of Economic Development testified that the Richman parcel is “perfect” for an IL land use, but that testimony only makes sense in the context of certain target employers. In the context of all the IL uses that are allowable under the Countywide Plan and Countywide Rules, the site is imperfect and impracticable because of the proximity of single-family homes and the access from an undivided, two-lane street used by residential traffic. Several years of marketing efforts by Richman and the County have not generated a single offer to purchase or lease the Richman parcel for any of the allowed IL uses, including target employers. Following the CPA’s denial of the Amendment, the staff of the Pinellas Planning Council undertook a review of its current policies regarding the preservation of industrial lands and recommended amending the Countywide Rules to identify industrial properties “worthy of preserving” and to develop criteria for the evaluation of proposed amendments to convert industrial land. These recommendations highlight the current lack of adequate guidance in the Countywide Rules. The determination by the CPA that the Amendment is inconsistent with the Countywide Rules is based primarily on three propositions which are contrary to the preponderance of the evidence. First, that the Richman parcel is being reserved for IL uses. The preponderance of the evidence shows that the parcel is inappropriate for several authorized IL uses and the CPA wants the parcel reserved only for a few target employers. Second, that the IL designation is not inconsistent with the McMullen-Booth Road SNCC. The identification of preferred land uses in the corridor would have no effect unless it was a factor to be considered by the CPA when it reviews proposed amendments to the Countywide Plan Map. The IL designation within the McMullen-Booth SNCC is inconsistent with the goal of the corridor and is a factor (not a requirement) in favor of changing current IL designation to another designation that qualifies as Mixed Use. Third, that the Richman parcel is part of a “consolidated area” for industrial uses in a location “consistent with surrounding uses” as described in Section 2.3.3.6.1. The preponderance of the evidence shows that this is not a consolidated area for industrial uses. It was once a consolidated area, but past land use decisions have eliminated more than half the industrial acreage. If Richman had proposed to consolidate its parcel with the IL parcel south of 10th Street South to create a large, integrated warehousing and distribution operation served by rail, the proposal would have been consistent with the core purpose for IL lands as expressed in Section 2.3.3.6.1. The impracticability of such a proposal, however, highlights the problem with the current IL designation for the Richman parcel. The County’s 2008 Target Employment and Industrial Land Study found that two-thirds of the “target industries” operating in Pinellas County are on lands not designated industrial, because these uses can often be accommodated on lands designated for office uses. The 2008 study recommended that the industrial designations of lands in five “prime industrial areas” be preserved. Richman’s IL parcel is not in one of these prime industrial areas. When all relevant factors are considered, the CPA appears to be taking a stand for preservation of industrial lands in the wrong place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Countywide Planning Authority issue a Final Order approving the Amendment. DONE AND ENTERED this 18th day of November, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2013. COPIES FURNISHED: Scott A. McLaren, Esquire Edward D. Armstrong, III, Esquire Hill, Ward and Henderson, P.A. 3700 Bank of America Plaza 101 East Kennedy Boulevard Tampa, Florida 33602 Gordon Beardslee, General Planning Administrator Pinellas County Department of Strategic Planning and Initiatives 310 Court Street Clearwater, Florida 33756 Michael Crawford, Executive Director Pinellas Planning Council 310 Court Street, Second Floor Clearwater, Florida 33756-5137 Kenneth Welch, Commission Chairman Board of County Commissioners Pinellas County 315 Court Street Clearwater, Florida 33756 Nancy S. Meyer, Esquire David S. Sadowsky, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756
Findings Of Fact Respondent Jorge L. Cabrera owns a parcel of land on Plantation Key some 2.73 acres in size. It is adjacent to U.S. Highway 1 and was previously zoned BU-2, a medium business district zoning classification. Respondent Cabrera filed his rezoning petition seeking a rezoning to BU-3Y, which would have permitted, among other uses, a cement plant, a petroleum storage and distribution facility, warehouse facilities, the repair and storage of construction equipment, an asphalt plant, or industrial parks. He initially informed the Zoning Department of Monroe County, in conjunction with his application for rezoning, that he intended to use the subject site as a storage area for construction equipment. The Respondent's property is located in a predominantly business area. Immediately across the highway is the State of Florida Highway Patrol Station, through which all trucks passing through the Florida Keys must stop for weighing. The property adjacent to the Respondent's property has a mixture of uses, including a gas tank storage area, a church, a bakery, a trucking company immediately adjacent to the property, heavy equipment storage and a radio transmission tower. To the rear of the property is a parcel owned by Howard Bonebrake consisting predominantly of mangrove wetlands. Howard Bonebrake appeared before the Zoning Board at its April 22, 1982, hearing in Key West, as did representatives of the Upper Keys Association and other residents in the Upper Keys Association and other residents in the Upper Keys and the vicinity of the subject site, in opposition to the proposed rezoning. The Department of Community Affairs is the state land planning agency designated by Chapter 380, Florida Statutes, to undertake statewide comprehensive planning. This project lies within Monroe County, Florida, which is the local government agency which issued the development order respecting the proposed development. On April 19, 1982, at a meeting held in Marathon, Florida, the Board of County Commissioners of Monroe County discussed the Zoning Board meeting which was scheduled for April 22, 1982. The minutes of the County Commission meeting reflected that the following action was taken under the category "Reports and Recommendations of Board Members": A motion was made by Commissioner Blair and seconded by Commissioner Harvey instructing the Zoning Board to Continue the meeting scheduled for April 22, 1982, to the Upper Keys consistent with the Board's policy of holding meetings in the areas affected. Roll call vote was taken and carried unanimously. No copy of a resolution embodying this Commission action has been placed into evidence. On April 22, 1982, the Zoning Board held a public hearing in Key West, Florida. Among the items on the agenda was Respondent Cabrera's rezoning application. Zoning Board Member Dagny Johnson sought to have that rezoning petition continued. A member of the Monroe County Commission, Jerry Hernandez, appeared before the Zoning Board at that hearing and advised the Board that it was the intent of the County Commissioners in that April 19 motion to allow the Zoning Board to decide whether the rezoning application by Cabrera was a "controversial issue" or not. He further advised the Zoning Board that it was the Board of County Commissioners' policy to hold hearings in the area of zoning impact or change when controversial issues were involved. He further advised the Board that the County Commission did not seek to dictate a decision on the location of the public hearing to the Zoning Board, but that that was a decision the Zoning Board must make itself. The chairman of the Zoning Board then stated that he had received no instruction from the County Commission to continue the hearing. Zoning Board Member Johnson then moved to have the Zoning Board hear zoning cases in the area in which the pertinent property is located. That motion failed for lack of a second. The Zoning Board's resolution granting Respondent Cabrera the requested rezoning was appealed to the Monroe County Board of County Commissioners, which affirmed the Zoning Board's decision on August 9, 1982. A motion for rehearing was denied by the County Commission on August 23, 1982. Among the arguments advanced in the appeal to the County Commission and in the rehearing were that the Zoning Board had violated its procedural rules and the County Commission's instructions by hearing the rezoning petition in Key West instead of at the property site on Plantation Key. In spite of the fact that the hearing was conducted in Key West, the adjoining landowner and others in the above association who opposed the rezoning applications had notice of and were in attendance at the rezoning hearing. Under Monroe County's Major Development Ordinance, adopted by reference as Rule 27F-9.17, Florida Administrative Code, parcels of land of five acres or more involved in a zoning application are considered to be major developments, and their developers are required to submit extensive environmental and public service impact statements. The Zoning Board and its staff also have discretionary authority to declare a project slightly smaller than five acres to be a major development and entitled to such detailed survey and study if the anticipated use is likely to be environmentally damaging, or if the projects meet certain other specific major development criteria. Monroe County's Chief Planner, Dr. Jeffery Doyle, testifying on behalf of Petitioner, established that no project under three acres had ever been considered by the Zoning Board or its staff to be a major development, nor has any concrete batching plant in Monroe County been declared to be a major development by the Zoning Board or its staff in the past. Concrete batching plants are different, in terms of environmental impacts, from large cement-producing plants, which pose substantial environmental considerations due to their release of substantial dust and particulate pollutants. Such is not the case with the relatively small concrete batching plant involved in this rezoning application and order. Although there was some speculation regarding large amounts of water which a concrete batching plant might use, water being relatively scarce in the Keys, no potential environmental damage posed by the rezoning and the resultant construction or installation of the concrete batching plant was shown. It was not demonstrated at the hearing before the Zoning Board, nor the Hearing Officer, that this project meets any criteria for being characterized as a "major development." Although a witness for the Petitioner, former County Commissioner Curtis Blair, stated that it was his belief that Monroe County had a policy of hearing zoning applications in the area where the property to be rezoned is located, he was unable to recall any actual adoption of such a policy. He acknowledged that no such rules of procedure for locations of Zoning Board hearings had been placed of record by the County Commission or the Zoning Board and admitted no such rules of procedure for hearing locations had been adopted. Rather, specific requests have been made from time to time of the Zoning Board on specific zoning matters regarding locating the hearings related thereto near the site of the property at issue. The purpose of this supposed "policy" would be to allow citizens most affected by a zoning change to appear and testify regarding it. Representatives of the Upper Keys Citizens Association and the neighbor, Mr. Bonebrake, all of whom oppose the project, were present at the hearing in this instance, however, and testified before the Zoning Board despite the fact that the venue of the hearing was in Key West. At the time the County Commission passed its April 19, 1982, motion regarding the request of the Zoning Board to hold the hearing in Plantation Key, the public notice of the Zoning Board hearing had already been promulgated and published and notices had already been sent to the adjacent property owners. Further, the Zoning Board's agenda had already been promulgated and published. Mr. Blair admitted that the April 19, 1982, motion was never incorporated in a resolution of the Board of County Commissioners. Former Zoning Board Member Dagny Johnson, testifying for the Petitioner, was of the belief that the Zoning Board had a policy to hold meetings in the affected locality, but could not establish the source of any such policy. She admitted that her view of that policy was in the minority and that the other four Zoning Board members did not agree with her that such a policy existed. Although she was certain that all major development projects which were the subject of zoning hearings were heard in the area affected, she could not recall that all other zoning change matters were heard in the affected locality and, in fact, recalled a number of cases where zoning applications were duly agendaed and noticed to the public involving projects outside the locality where the Zoning Board hearing was conducted. Both witnesses Johnson and Doyle for the Petitioner conceded that the applicant's statement of his intended use of the subject property to be rezoned has "no significance" and that the zoning applicant's intended use is not required to be advertised to the public. Rather, the proposed zone change is the subject of public notice. The applicant, once having secured BU-3Y zoning, could erect whatever structure or perform whatever use that zoning permitted, regardless of the use he may have initially proposed in the zoning application. The applicant's intended use could change; and once the property is rezoned, the property can be put to whatever use the applicant and owner chooses, provided it is within the authorized uses of the new zoning. Respondent Cabrera in this instance informed the Zoning Board at the hearing of his ultimate intended use, that is, the erection of a concrete batching plant. This was before his application was finally considered and voted upon. He informed the neighboring landowners personally of the intended use of the property prior to the Zoning Board hearing. Those neighboring landowners were in attendance at the hearing and were given an opportunity to oppose his application. At the Zoning Board hearing of April 22, 1982, Ms. Johnson made a motion calling for the Board to affirm the existence of a policy requiring all zoning changes to be heard in the portion of the Florida Keys where the properties which are the subject of the zoning applications are located. This motion was rejected by the Board, and thus at that point the Zoning Board had not affirmed the existence of such a definite policy. There is no dispute that there is no written rule or policy of the Zoning Board requiring zoning matters to be heard in the locality of the property which is the subject of a zoning application. Further, the Zoning Board's agendas do not show any consistent pattern that such hearings are conducted in the venue of the subject property; rather, some rezoning applications were agendaed in the locality of the property involved, and some were agendaed outside of the area involved in zoning or rezoning applications. It was not shown that the Zoning Board's agendas uniformly set rezoning applications for hearing in the area of impact. Thus, it was not established that any such policy existed in April, 1982, the time period pertinent hereto.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That the Petition of the Department of Community Affairs be DENIED. DONE AND ENTERED this 20th day of December, 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 20th day of December, 1983. COPIES FURNISHED: Eric Taylor, Esquire Barry F. Chiles, Esquire Assistant Attorneys General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301 Mr. John T. Herndon Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 James T. Hendrick, Esquire Albury, Morgan & Hendrick, P.A. 317 Whitehead Street Key West, Florida 33040 E. Baxter Lemmond, Esquire Assistant County Attorney Monroe County 310 Fleming Street Key West, Florida 33040 C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301 The Honorable George Dolezal Box 1029, Duck Key Marathon, Florida 33050 The Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This controversy began when respondent, Narbi International Investments Company, Inc. (Narbi or applicant), made application with respondent, Lake County (County), to rezone a 108.5 acre tract of land from Agricultural to Planned Unit Development (PUD). The land lies one and one-half miles west of U. S. Highway 27 and just north of County Road 474 in the southeastern part of Lake County. It is also within the boundaries of the Green Swamp Area of Critical State Concern. The purpose of the rezoning was to allow Narbi to construct a residential development to be known as Corinthian Park. After certain modifications to the project were made, including a restructuring of the project to eighty single-family residential units, the County adopted Ordinance No. 63-90 on December 18, 1990, which granted the rezoning request. Because the ordinance is a "development order" (DO) within the meaning of Chapter 380, Florida Statutes, the County rendered a copy of the ordinance to petitioner, Department of Community Affairs (DCA), for its review. Concluding that the ordinance was inconsistent with the principles for guiding development in the Green Swamp Area of Critical State Concern as codified in Chapter 28-26, Florida Administrative Code, the Lake County Comprehensive Plan (plan) and the County land development regulations, and had been improperly "rendered" to DCA for its review, DCA filed a petition for appeal of development order with the Florida Land and Water Adjudicatory Commission (FLWAC). The petition was later amended in minor respects. At hearing, petitioner withdrew its contention that the order had been improperly rendered. In addressing the above issues, the parties have presented numerous expert witnesses. As might be expected, there is conflicting testimony on many of the issues. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and the accepted testimony is embodied in the findings below. The Parties Petitioner has been designated as the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes. It has the authority to appeal any development order issued in an area of critical state concern within forty-five days after the development order is rendered to the DCA. The appeal herein was timely filed. The County is a political subdivision of the State of Florida and has the responsibility for issuing development orders for developments in unincorporated Lake County. Ordinance No. 63-90 is such a development order and is the subject of this appeal. Narbi is the corporate owner and developer of certain real property in an unincorporated part of southeastern Lake County consisting of approximately 108.5 acres. The eighty-unit project will be known as Corinthian Park. The Proposed Project and Adjacent Properties From a geographical perspective, Narbi's property lies approximately twelve miles south of Clermont, Florida, or just north of the Polk County line, and less than five miles west of the boundaries of Reedy Creek Improvement District (Walt Disney World) and Orange County. The tract of land is odd-shaped with a small part fronting on the north side of County Road 474 and the remainder extending northward through a tract of undeveloped acreage, a small part of which is an abandoned, dead orange grove. Indeed, because of three hard freezes in a seven year period, the County has an abundance of former orange grove operations that are now available for development purposes, and Narbi seeks to convert its property from agricultural purposes to a residential development. Except for the development described in the following finding of fact, the area is largely forests and wetlands, and the area surrounding Narbi's land is vacant. Approximately one mile west of the project site and to the north of County Road 474 lie an asphalt plant and excavation fill area. Both of these activities predated the designation of the Green Swamp as an area of critical state concern. In addition, a corridor of development lies along U. S. Highway 27 to the east. However, that development sits on or near the Lake Wales Ridge, which is a high, dry sandy ridge on the eastern boundary of the Green Swamp area and out of the hydrologic basin of the Green Swamp. The development in that area includes another approved residential development project known as the Greater Groves Subdivision, which was given an approval by the DCA for 150,000 square feet of retail space and 445 homes having a density of 2.75 units per acre, a large, mixed-use tract of land known as South Lake Subdivision having 8,000 units and a DCA-approved density of 13 units per acre, a travel trailer park, a campground and travel trailer park, and migrant housing. In addition, there is a 900 acre project one mile west of Corinthian Park called the Ray Ranch development which is the subject of another DCA challenge. However, at the time of the final hearing, the parties were in the process of executing a settlement agreement, the terms of which are not of record. It is noted that there was no evidence that the Ray Ranch development or any other approved project was comparable in any respect to Corinthian Park or had the same physical characteristics as are found on Narbi's land and thus those developments have no precedential value in this proceeding. The project is designed to have eighty single-family dwelling units on separate lots with a gross density of .74 units per acre. Prior to the approval of the rezoning, the site was zoned agricultural with a permitted density of one unit per five acres. Present plans call for each home, including driveways, to have a maximum 3,000 square feet. A central water system will serve the subdivision but individual septic tanks will be utilized for each home. Narbi proposes to construct the project in three phases consisting of 30, 27 and 23 lots, respectively. However, the third phase cannot be constructed until the County adopts a new stormwater management ordinance that meets the DCA's approval. After the build out is completed, approximately forty-eight percent of the acreage, or fifty-two acres, including all wetlands on the property, will be dedicated to conservation, preservation, recreation and open space areas. At the same time, eight percent of the acreage will have impervious surfaces, roads and houses, while the remaining ninety-two percent will have pervious or noncovered areas. Narbi's property contains 26.1 acres of wetlands and approximately ten acres within the 100 year flood plain. The only alteration to the flood plain will be one road crossing, and all water retention areas are to be located outside of the 100 year flood plain. In addition, stormwater runoff will be treated before going into the flood plain. The remainder of the property consists of pine flatwoods and uplands. The center of the property, which once contained a small orange grove, has been cleared. The features on this property are similar to those found on other property in the immediate area, all of which is zoned agricultural. The Green Swamp and its Significance In 1979, a part of an area known as the Green Swamp was designated by the legislature as an area of critical concern. As such, it is one of only four areas in the state given this designation. The area was accorded special protection because of its significance as a source of potable water, its function as a wildlife habitat and refuge, and its importance as a high recharge area for the Floridan Aquifer. The designated area covers approximately 900 square miles in parts of Lake and Polk Counties and consists largely of undeveloped forested and wetland areas. In addition, five major rivers originate in this portion of the State. It should be noted that all of the land in and around Narbi's project which lies west of U. S. Highway 27 is within the Green Swamp area. The Floridan Aquifer underlies the entire state except for the extreme northwestern corner. It serves as a source of drinking water for one-half of the state's population and thus constitutes the state's principal water supply aquifer. The Green Swamp is a source of recharge (or replenishment through the downward percolation of surface water into the aquifer) of the groundwater in the aquifer thereby allowing the aquifer to maintain its volume and high quality of water. A principal feature of the aquifer is a series of limestone formations which lie below the ground surface keeping the fresh water under pressure. The high point (potentiometric surface) of the pressure system occurs in the Green Swamp thus giving that area critical importance. In the area around Narbi's project, there is a layer of sand overlying the aquifer. There is also a geologic fault that allows direct connection to the aquifer. This means that in this area there is direct recharge into the aquifer with very little filtration to remove contaminants. Even where a clay layer exists over the aquifer, it is not confining because it contains cracks, fissures, and outcroppings of limestone which allow direct contact into the aquifer. Moreover, clay soils do not retain organic compounds, but allow them to filter through to the aquifer. Thus, the aquifer is vulnerable to contamination found in runoff which percolates without filtration into the aquifer. The Documents Governing this Controversy The land use element of the comprehensive plan was originally adopted in February 1977 and has been amended from time to time. It applies within the unincorporated portions of the County. On November 5, 1985, the County adopted Ordinance 1985-19 which brought the plan into conformity with all state regulations regarding the Green Swamp Area of Critical State Concern, including the principles for guiding development. Those principles are codified in Chapter 28-26, Florida Administrative Code. It is noted that in 1986 the DCA determined that the 1977 plan, as amended through 1985, and the land development regulations, as amended through 1985, were in compliance with state law as they applied to those portions of the Green Swamp Area of Critical State Concern within Lake County. That approval is codified in Chapter 9J-8, Florida Administrative Code. The conservation element to the plan was adopted on June 4, 1980, and sets forth various goals, objectives and policies "aimed at protecting the natural environment from misuse." There is also a compendium of land development regulations found in a document known as the Lake County Zoning Regulations, as amended 1988, which are relevant since they provide regulations governing the development of a PUD and include the zoning map which was changed by virtue of the rezoning application. Effective July 9, 1991, the County adopted a new comprehensive plan. However, Narbi's rezoning request is subject to the old plan requirements. Consistency with County Comprehensive Plan According to the amended petition for appeal, as later clarified by the DCA, Ordinance No. 63-90 is inconsistent with the county comprehensive plan in two respects. First, DCA contends that the proposed residential density for Narbi's project is inconsistent with a land use element, three general plan policies and one objective set forth in the comprehensive plan. More specifically, it contends that the approved density contravenes the conservation subsection of the plan categories for residential uses, policies 4, 10 and 11 of the general plan policies, and objective 5 of the conservation element of the plan. All of these items were specifically incorporated into the plan to provide special protection to the Green Swamp Area of Critical State Concern. DCA also asserts that the ordinance is in conflict with Section 3.C. of the land use element (the Urban Containment Policy) in that the project would constitute or contribute to "leapfrogging and uncontrolled urban sprawl." These contentions are addressed separately below. The conservation plan category for residential uses is found in section 4 of the land use element. In all, six plan categories were established to provide a range of residential density to be used in various categories of land use, including conservation areas. As is relevant here, the conservation element provides that county lands lying within the Green Swamp Area of Critical State Concern are determined to be of environmental value and should be "conserved". The conservation element goes on to define the term "conserve" to mean: uses such as parks, agriculture, very low density residential which will not overly damage natural conditions, as well as, "no development" use. The cited general plan policies are found in the land use plan element and were developed for the purpose of "implement(ing) the urban containment policy and to establish policies to develop the land use map, upon which the resulting zoning map will be based." Among them is policy 4 pertaining to residential development in the County. In 1985, the County amended policy 4 by adding subsection E. to provide that all residential development within the Green Swamp Area of Critical State Concern shall conform to the principles of guiding development. Those principles of guiding development are more fully discussed in a subsequent section of this Recommended Order. Also relevant is policy 10 requiring that the County give "full consideration . . . to environmental factors . . . as they pertain to land use" and that a conservation element be established. Finally, policy 11 recognizes agriculture as an important and necessary economic activity within the County, provides that adequate and appropriate water shall be reserved for its continuance, and provides further that urban development shall be discouraged in those portions of the County presently used as agriculture. The last item cited by the DCA is objective 5 of the conservation element which pertains to environmentally sensitive areas. It establishes a goal of preserving "those environmentally sensitive areas . . . in order to safeguard Lake County's natural resources for present and future residents." The above cited provisions of the plan show clearly that the site of Narbi's project is considered to be an environmentally sensitive area which must be afforded special protection. The plan itself uses such terms as "very low density", "no development", "conserve" and "preserve" in describing the type of development to be allowed. At the same time, in order to comply with its plan, the County is obliged to give full consideration to environmental factors, discourage urban type development in portions of the county now zoned agricultural, and preserve sensitive areas for future residents. In devising residential densities for various plan categories, the County has adopted the following guidelines: Estate 1 unit per 3 or more acres Low Density 1.1 - 2.75 units per acre Medium 2.76 - 7.0 units per acre High 7.1 - 15.0 units per acre However, as noted earlier, the conservation element calls for "very low residential" density in lands to be "conserved", such as those in the Green Swamp area where Narbi's project will be located. As can be seen, there is no plan category for "very low residential", and this omission underpins in part the controversy between the parties. At hearing, the parties sharply differed on what gross density falls within the category of "very low residential". Since the plan defines "low density" residential as 1.1 to 2.75 units per acre, the County takes the position that anything below that level of density, including the proposed .74 units per acre for Narbi's project, would necessarily fall within the very low density category. Indeed, it has consistently interpreted the plan in this manner since the 1985 amendment was adopted. The DCA contends that a density of .2 units per acre (or one unit per five acres) is consistent with the conservation element of the plan. This view is deemed to be more credible and reasonable since that element refers to parks, agricultural, very low density and no development uses as being appropriate for the Green Swamp area. This interpretation of the term "very low density" is also consistent with other portions of the plan in that only scattered, residential housing was contemplated in environmentally sensitive lands, the residential density for agricultural lands is one unit per five acres and thus this residential density would be consistent with the lands surrounding Narbi's project, and the DCA's suggested density is lower than the one unit per three acres approved for estates, a category that falls between regular residential and agricultural densities. It is also noted that a one unit per five acres density would be more compatible with the objective of safeguarding the County's natural resources for future residents, and the general policies of discouraging urban type development on lands now zoned agriculture, "conserving" protected lands, and giving "full consideration" to environmental factors. Therefore, it is found that Ordinance 63-90 is inconsistent with the conservation subsection of the plan categories, general plan policies 4, 10 and 11, and objective 5 of the conservation element of the plan. The DCA also contends that the project would constitute or contribute to "leapfrogging and urban sprawl" and thus be violative of section 3.C. (urban containment policy) of the plan. That policy is found on page 1-12 of the land use element of the plan and provides in part as follows: Only limited expansion shall be approved beyond the current limits of any Urban Area or Urban Compact Node until the gross residential density of that existing Urban Area reaches two dwelling units per acre. Further, no urban development should be permitted unless the half section(s) in which it is situated be contiguous with the declared urban area. This limitation does not apply to agricultural uses requiring approval procedures, such as, conditional use permits and site plan approval in the agricultural zoning districts. The intent of this recommendation is to prevent "leapfrogging" and uncontrolled urban sprawl, but without creating an undesirably high density urban environment. * * * The urban containment policy then is the general framework upon which the Lake County Land Use Plan and the resultant implementative ordinances and policies are based. The Urban Containment Policy is based on limited growth in rural areas rather than on existing trends. Almost all proposed development is placed in or around existing urban areas, so that urban services and transportation facilities can be provided economically. Environmentally sensitive areas were avoided whenever possible as were agricultural areas. (Emphasis added) The same policy goes on to establish ten criteria for the location of urban activities. Among them are two which provide that (a) urban development should be "clustered around existing communities" and (b) "areas for rural density residential development are limited to existing areas that have low agricultural potential." It is noted that the County has classified the existing development along U. S. Highway 27 to the east of the project site as being an urban compact node. The County does not view the urban containment policy as being a barrier to the Narbi project for several reasons. First, it does not consider the project as being "urban development" within the meaning of the plan and thus believes the urban containment policy has no application. Second, in light of the high start-up costs for developing orange groves, which was the former use of a small part of the property, it sees no agricultural potential for the land. As to the first reason, the plan considers urban areas to be those areas in which residential use is more than one dwelling unit per gross acre. The plan does not have a similar provision for rural areas in terms of residential density. However, the County has historically interpreted its plan to mean that anything "non-urban" is rural. Since the plan defines the minimum threshold for residential low density in urban areas as being 1.1 units per acre, the County construes all development outside of urban areas to be rural or non-urban so long as the density is less than 1.1 units per acre. Thus, it considers the contention that the project constitutes urban sprawl to be misplaced. As to the second reason, the County forsees no agricultural potential in Narbi's property. Therefore, it views the project as being consistent with the criterion that "areas for rural density residential development are limited to existing areas that have low agricultural potential." On page 1-3 of the land use element, the term "urban sprawl" is defined as "the scattering of generally low-intensive developments in suburban and rural areas." The plan goes on to state that urban sprawl "causes severe problems for local municipalities and the County," imposes a "heavy" financial burden on local jurisdictions for added services, and "yields a low return on a large capital investment" by extending public services through undeveloped lands to outlying developments. After recognizing these adverse impacts, the policy states that its intent is to "prevent 'leapfrogging' and uncontrolled urban sprawl" especially in "environmentally sensitive areas." The County's definition of urban sprawl is similar in many respects to the definition used by DCA. Though the term is not defined by statute or agency rule, the agency has, on a case by case basis, utilized a nonrule policy of not favoring development orders which approve projects that constitute or contribute to urban sprawl. The DCA construes the term to mean a development pattern that is associated with scattered, low intensity, unplanned, uncontrolled development that is usually approved in what are generally rural areas. When this occurs, there is no coordination between such development and public facilities and services or the protection of natural resources. Put another way, urban sprawl results in the inefficient use of public services, higher costs to local government, and a lack of protection for natural resources. Thus, the policy used by DCA is rational, logical and persuasive and is supported by an adequate record foundation. There are three types of urban sprawl: leapfrog development, strip development, or single use pattern of development. Leapfrog development is described in the record as being a spot zone type of development in which vacant areas have been bypassed, and where a single development exists in an outlying area that is not contiguous or connected to an existing residential pattern. It is also a land use that is incompatible with the surrounding land uses. In this case, the Corinthian Park project falls within the category of leapfrog development. Applying the above considerations to the project in question, it is found that the project is inconsistent with the plan's urban containment policy. More specifically, the project falls within the definition of leapfrogging and urban sprawl as defined by the plan and DCA, and most importantly, the County's urban containment policy specifically recommends that this type of growth be "avoided whenever possible" in environmentally sensitive areas. In making this finding, the undersigned has rejected the County's contention that the proposed subdivision is non-urban development and has accepted the DCA testimony which establishes that a level of density no greater than one unit per five acres is properly considered rural density. Therefore, the development is properly characterized as urban. Next, while the land probably has little potential for agricultural purposes as the County suggests, that consideration is but one of many in the determination of whether the project violates the urban containment policy. When weighed against the admonitions that there be "only limited expansion . . . beyond the current limits of an . . . urban compact node", that the purpose of the policy is to "prevent 'leapfrogging' and uncontrolled urban sprawl", that there be "limited growth in rural areas", and that such growth be "avoided whenever possible" in environmentally sensitive areas, it is found that Ordinance 63-90 is in contravention of Section 3.C. of the plan. Consistency With Land Development Regulations This issue involves allegations by the DCA that the proposed increase in residential density for the project is incompatible with subsection 696.20B. of the zoning code and that the site alteration criteria in Rule 28- 28.28.008(7), Florida Administrative Code, have not been met. The latter allegation has been categorized as a land development regulation issue since such regulations, if properly enacted, should require compliance with chapter 28-28. In addition, the County has cited section 696.13 of the zoning code as authorizing the approval of the rezoning application. Findings regarding the validity of these allegations are set forth below. Paragraph B.1. of Section 696.20 provides the following criterion for residential density in a PUD: Density. The criteria for establishing the residential gross density (not including natural water bodies) shall be: a. Compatibility with other zoning districts in the vicinity of subject property with adopted densities in the Lake County Land Use Element of the comprehensive plan. DCA contends that the approved density for Narbi's project is in violation of the above criterion. As noted earlier, the authorized (adopted) residential density for agricultural zoning is one unit per five acres. All of the land surrounding the site of the project is now zoned agricultural. Thus, with a proposed density of .74 units per acre, the project will be inconsistent with the adopted density for the surrounding lands as proscribed by subsection 696.20B. Even though the County's land development regulations do not specifically require compliance with Rule 28-28.008(7)(a), Florida Administrative Code, Ordinance 63-90 must still meet its requirements. That rule pertains to site alteration limitations in the Green Swamp area with the aim of preserving the natural drainage capabilities of major soil associations. The rule limits the amount of site alteration to the following percentages of the area of each association within any given total site: Upland association 60% Pine flatwood association 25% Wetland association 10% In other words, only ten percent of wetlands, twenty-five percent of pine flatwoods, and sixty percent of the uplands can be disturbed. The remainder of the area must remain in its natural state. As now proposed, the project exceeds the criteria for pine flatwoods and upland areas by some twenty acres. That is to say, Narbi proposes to develop approximately twenty acres of pine flatwoods and upland areas that should remain undisturbed under the rule criteria. All of the excess acreage is related to phase 3 of the project which, assuming the County prevails in this action, is still on hold until the County adopts a stormwater drainage ordinance meeting DCA's approval. It is noted, however, that even after the approval of an ordinance, there is no guarantee that this would cause DCA to waive the requirements of the rule. Section 696.13 of the zoning code prescribes a four-step process for a developer to secure final plat approval and construct a PUD. In general terms, these steps are rezoning, preliminary plat or preliminary plan, construction drawings, and final plat. As of the time of hearing, Narbi had only completed the first of the four steps. Later on in the process, Narbi will be required to give the County more detailed engineering and technical data regarding the project, and it will not be allowed to complete construction of the project until the final plat is approved and recorded. The County suggests that since phases 1 and 2 of the project meet the site alteration criteria for both flatwood areas and uplands, Narbi should be allowed to proceed with construction of the project as to those two phases, but not allowed to complete phase 3 until the stormwater drainage ordinance is approved and Narbi can demonstrate compliance with the rule and other criteria through more detailed information. Besides the fact that it would be difficult, if not impossible, to revoke the zoning once Narbi had completed two of the three phases of the project, the criteria in rule 28-28.008(7)(a) are applied to the entire project, and not just on a phase by phase basis. Thus, to demonstrate compliance with the rule, an applicant must show compliance with the site alteration criteria for the total project. In addition, approval of the stormwater drainage ordinance by itself does not necessarily mean that the rule criteria will be waived. Therefore, it is found that Ordinance 63-90 is incompatible with section 696.20 of the land development regulations and rule 28-28.008(7)(a). Consistency with Chapter 28-26 The Florida Cabinet, sitting as the Administration Commission, has promulgated Chapter 28-26, Florida Administrative Code, which defines the boundaries of the Green Swamp Area of Critical State Concern and provides principles for guiding development within that area. These principles are designed to conserve and protect the natural environmental resources and public facilities within the designated area and ecologically linked areas and apply to all development within the critical area. The principles contain eleven objectives which are codified as paragraphs (a) through (k) of rule 28- 26.003(1). Relevant to this proceeding are the objectives in paragraphs (a)-(d) and (g) of rule 28-26.003(1), which seek to "minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas", "(p)rotect . . . ground water and surface water which are necessary for the protection of resources of state and regional concerns", "(p)rotect the water available for aquifer recharge", "(p)rotect the functions of the Green Swamp Potentiometric High of the Floridan Aquifer", and "(p)rotect . . . existing ground and surface-water quality." By its appeal, DCA asserts that Ordinance 63-90 is in violation of each of those objectives and thus is inconsistent with the comprehensive plan which has adopted these objectives. The validity of this allegation turns on whether the use of individual septic tanks for each home in the subdivision will adversely affect the groundwater quality of the Green Swamp, and whether the project itself will negatively impact the groundwater and the Floridan Aquifer. In resolving these factual issues, the undersigned has discounted the County's contention that because it is prohibited by special act from regulating wastewater facilities with an average flow of less than 1200 gallons per day, and residential septic tanks have a much lower average daily flow, the County had no authority to deny the rezoning request on the ground septic tanks would be used at each home site. This is because the County has far wider authority under its plan to disapprove a project because of an applicant's failure to comply with chapter 28-26. The development order requires that, as a prerequisite to obtaining a building permit, the applicant meet the minimum requirements for septic tanks pursuant to Chapter 10D-6, Florida Administrative Code. That chapter, which is administered by the Department of Health and Rehabilitative Services (HRS), provides minimum construction standards for septic tanks on a statewide basis, except for the Florida Keys. Under this chapter, an applicant must obtain a permit from HRS to install a septic tank. It should be noted that these statewide standards are construction standards and not performance-based standards for monitoring environmental degradation. In addition, the standards do not take into account environmentally-sensitive lands such as those having an Area of Critical State Concern designation. Thus, it is found that the chapter 10D-6 requirements are primarily intended to protect the public health as opposed to the environment. On-site sewage disposal systems are made up of two components: the septic tank component and the soil infiltrative component. The tank is nothing more than a holding tank designed to (a) separate solids and floatable materials contained in domestic wastewater and (b) allow anaerobic digestion of the organic materials by anaerobic type organisms. The remaining clear effluent then exits the tank into the soil infiltrative process, which is a network of drain pipes placed in a twelve-inch layer of gravel. The network is more commonly referred to as the drain field. The drain field distributes the effluent evenly throughout that area of land. It is then treated by the soils. After traveling through the soils, the effluent eventually enters the groundwater table. Because the drain field provides the only treatment to the effluent after it leaves the tank, it is important that the soils in which the drain fields are placed have good soil hydraulic conductivities and that the distance from the pipes to the groundwater table be adequate. In the project area where the tanks are to be placed, the water table will be only ten inches below the bottom of the drain field system. In addition, the sands in that area are Immokalee, Myakka and Placid sands and are considered either moderately or severely limited for on-site sewage disposal systems. This is because those types of sand allow the effluent to percolate through the soil more quickly than other types of soil and thus the effluent receives very little treatment prior to entering the groundwater. Comtaminants such as nitrogen, phosphorus, toxic biodegradable and non-biodegradable organic compounds are often present in domestic wastewater and, because of the soil composition and water table elevation, could be expected to enter the groundwater from the septic tanks. Chapter 10D-6 does not provide for follow-up inspections by HRS for residential septic tank systems. An inherent problem with the use of septic tanks is that property owners fail to properly maintain their septic tank systems. As a general rule, maintenance is undertaken only when the organic loading to the system has been substantial enough to make it back up in the home. In addition, a septic tank failure can go undetected long enough for the introduction of contaminants into the groundwater. Although Narbi has agreed to modify its plans and to install 1,000 gallon septic tanks and water savers for toilets and showers to reduce the loading rate in each home to 333 gallons per day rather than the average of 450, there will still be unacceptable levels of contaminants entering the groundwater without adequate treatment. This is true even if the tanks are constructed in accordance with chapter 10D-6. Therefore, it is found that Ordinance 63-90 is inconsistent with the plan in that the adverse impacts caused by the use of individual septic tanks in the density proposed for the project will result in a violation of the objectives in paragraphs (a) through (d) and (g) of rule 28- 26.003(1). The DCA also asserts that the project itself will negatively impact the groundwater and the Floridan Aquifer. As noted earlier, the project sits on the eastern edge of the Green Swamp Area of Critical State Concern. A geologic fault found beneath the surface of the ground allows direct connection to the Floridan Aquifer. At the same time, there is no confining clay layer overlying the aquifer, and the soil in the project area is of the type that provides very little filtration to harmful contaminants which percolate through the soil and into the groundwater. Nitrates are contaminants that are generated from a variety of sources, including human beings and warm-blooded animals. A large amount of nitrates can be expected to be generated in the project area thereby causing contamination of the groundwater. Although it is possible to filter nitrates through complex and expensive technology, the applicant has not proposed this curative measure. It should be noted that soils by themselves do not adequately filter nitrates out of the runoff. There are also 26.1 acres of wetlands on Narbi's property. Because of the interaction between the surface water and groundwater, it is possible over the long-term for the contaminants and runoff to adversely impact the wetlands. A lowering of the groundwater quality will indirectly lower the quality of the wetlands water or its base flow. Once contaminants enter the groundwater, they have a very long residence time. This is because the groundwater is a protected confined medium, not subject to the sun's ultraviolet radiation nor oxidation by air, and it has a very stable PH. Although Narbi has proposed to have stormwater runoff designed to meet the Outstanding Florida Waters (OFW) criteria, this in itself is insufficient to assure that the groundwater will not be harmed. Given these considerations, it is found that Ordinance 63-90 violates the plan in that the project will cause a violation of the objectives in paragraphs (a) through (d) and (g) of rule 28-26.003(1). I. Conditions Under Which the Project Can be Approved The evidence supports a finding that if the proposed density of the project is downsized to one unit per five acres, and all other provisions in the plan are satisfied, as well as the site alteration criteria in rule 28- 28.008(7)(a), the rezoning application may be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding approval of Ordinance 63-90; that the order state that Narbi International Investments Company, Inc. may develop the project if it reduces the density to one unit per five acres and otherwise shows compliance with all provisions in the plan and rule 28-28.008(7)(a); and that Lake County be directed to properly administer and enforce its land development regulations in accordance with chapter 380. RECOMMENDED this 4th day of May, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6599DRI Petitioner: 1. Accepted in finding of fact 3. 2. Accepted in finding of fact 4. 3. Accepted in finding of fact 5. 4-5. Accepted in finding of fact 8. 6. Accepted in finding of fact 11. 7. Accepted in finding of fact 8. 8-9. Accepted in findings of fact 14 and 15. 10. Accepted in finding of fact 11. 11-12. Accepted in finding of fact 7. Accepted in findings of fact 29 and 30. Partially accepted in finding of fact 6. 15. Accepted in finding of fact 30. 16. Accepted in finding of fact 19. 17. Accepted in finding of fact 20. 18. Accepted in finding of fact 17. 19-20. Accepted in finding of fact 20. 21. Accepted in finding of fact 24. 22-24. Accepted in finding of fact 25. 25. Rejected as being unnecessary. 26-27. Accepted in finding of fact 21. 28. Accepted in finding of fact 23. 29-30. Accepted in finding of fact 26. 31. Rejected as being unnecessary. 32. Accepted in finding of fact 31. 33-36. Accepted in finding of fact 12. 37-40. Accepted in finding of fact 13. 41-42. Accepted in finding of fact 42. 43. Accepted in finding of fact 41. 44. Accepted in finding of fact 44. 45. Rejected as being unnecessary. 46. Accepted in finding of fact 43. 47-51. Accepted in finding of fact 44. 52-54. Accepted in finding of fact 37. 55. Accepted in finding of fact 38. 56-57. Accepted in finding of fact 35. 58-60. Accepted in finding of fact 39. 61. Rejected as being unnecessary. 62-63. Accepted in finding of fact 40. Respondent County: Accepted in finding of fact 5. Accepted in finding of fact 4. Accepted in finding of fact 3. Accepted in finding of fact 11. Accepted in finding of fact 14. Rejected as being unnecessary. 7-8. Accepted in finding of fact 2. Accepted in finding of fact 8. Partially accepted in finding of fact 9. The remainder is rejected. See finding of fact 43. Accepted in finding of fact 44. 12-13. Accepted in finding of fact 10. 14-15. Accepted in finding of fact 9. 16-20. Accepted in finding of fact 20. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 30. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 11. Accepted in finding of fact 13. Accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 40. Accepted in finding of fact 35. Rejected as being contrary to the more credible evidence. 31-32. Rejected as being unnecessary. 33. Rejected as being irrelevant. 34-35. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. Rejected as being irrelevant. Accepted in finding of fact 40. Partially accepted in finding of fact 40. The remainder has been rejected as being contrary to the more credible evidence. Accepted in finding of fact 40. Rejected as being contrary to the more credible evidence. Partially accepted in finding of fact 44. 43-52. Rejected since the testimony of witness Dehan has been accepted on this issue. Respondent Narbi: Rejected as being irrelevant. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. 4-7. Rejected as being contrary to the more credible evidence. 8-9. Rejected as being irrelevant for the reasons cited in finding of fact 7. 10. Partially accepted in finding of fact 19. The last sentence is rejected as being contrary to the more credible evidence. 11-12. Rejected as being contrary to the more credible evidence. Rejected as being irrelevant. Partially accepted in finding of fact 24. The last sentence is rejected as being contrary to the more credible evidence. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 31. 17-18. Rejected as being irrelevant. The first sentence is rejected as being contrary to the more credible evidence. The second sentence is accepted in finding of fact 44. Rejected as being unnecessary. Accepted in finding of fact 8. Rejected as being contrary to the more credible evidence. Rejected as being irrelevant. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 40. 26-29. Rejected as being contrary to the more credible evidence. 30. Rejected as being irrelevant. 31-32. These matters were considered in evaluating the testimony of the witnesses. COPIES FURNISHED: Douglas M. Cook, Director Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 L. Kathryn Funchess, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Timothy P. Hoban, Esquire 315 West Main Street Tavares, FL 32778 Max Sabeti 4063 Goldenrod Road Suite 208 Winter Park, FL 32792
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue The issue is whether a proposed amendment to the Pinellas County Countywide Future Land Use Plan (FLUP) changing the land use designation on a 22.18-acre parcel located at 2301 Chautauqua Avenue in the City of Clearwater (City) from Residential Suburban/Preservation to Residential Low/Preservation should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1988, the Legislature provided the County with countywide planning authority (see Chapter 88-458, Laws of Florida). That same year, the Legislature enacted Chapter 88- 464, Laws of Florida, which amended Chapter 73-594, Laws of Florida, and required the County to develop "a countywide future land use plan" and "other [necessary] elements," also known as the Countywide Comprehensive Land Use Plan of Pinellas County. Among other things, Chapter 88-464 prescribes the process by which changes to land use designations are made within the County. Under that process, all local government comprehensive plans, including the City's, are required to be consistent with the FLUP. Presumably, the laws were enacted because of the County's dense development (it is one of, if not the most, densely developed counties in the State), the large number of incorporated cities and towns (24) within the County, and the desire to have some degree of countywide uniformity in land use planning decisions. The law goes on to provide that amendments to the FLUP "relating to land use designation for a particular parcel of property may be initiated only by a local government that has jurisdiction over the subject property." In this case, the subject property lies within the City; therefore, the proposed change was initiated by the City. Under the review process in place for adopting an amendment to the FLUP, the proposed amendment is first presented to the City, then to the PPC, which consists of 13 representatives from various towns and cities in the County, the School Board, and the County, and finally to the Pinellas County Board of County Commissioners, sitting as the CPA. The subject property is located at 2301 Chautauqua Avenue, Clearwater, Florida. Chautauqua Avenue (also identified as Main Street on some maps) runs for a short distance in a north-south direction parallel to, and just east of, U.S. Highway 19 in the northeastern part of the City. Except for two houses, some tennis courts, and assessory buildings, the 22.18-acre tract of land is largely undeveloped. The land also includes a small pond located in the northwest quadrant and wetlands along its eastern side, which fronts on Lake Chautauqua (the Lake). Mr. Lawrence H. Dimmitt, III, one of the two co-trustees, acquired ownership of the southern half of the property in January 1986, while the remainder of the parcel was not acquired by the Trustee until December 2001. In June 2002, the property was annexed by the City pursuant to a request by the Trustee (to enable City water and wastewater services to be extended to the property). The property is now under contract to be sold to a developer (The Rottlund Company, Inc.), who desires to construct 90 town homes in 34 buildings, assuming the amendment is approved. Since July 21, 1982, the upland portion of the property (16.22 acres) has been classified as RS, which allows 2.5 residential units per acre. The wetlands and some adjacent land totaling around 4.6 acres on the eastern portion of the property next to the Lake are classified as, and must remain, Preservation. In addition, a small pond (1.35 acres) on the property is classified as Water/Drainage Feature. The proposed amendment does not affect the classifications of the wetlands and pond. All of the surrounding property (except the property immediately to the west between Chautauqua Avenue and U.S. Highway 19, which is classified as Commercial Limited) also carries an RS land use designation. The other nearby property along U.S. Highway 19 is classified as some form of commercial or mixed office/residential use. Countrywide Mall, the County's only regional shopping mall, is situated on U.S. Highway 19, less than a mile away. The property is located approximately 700 feet east of U.S. Highway 19 between Second Avenue South and Second Avenue North. U.S. Highway 19 is six lanes wide, was described by witnesses as being the most heavily traveled roadway in the County, and has intense commercial or mixed use development on both sides of the highway. Immediately to the west of the property (between U.S. Highway 19 and Chautauqua Avenue) is a Chevrolet automobile dealership and repair facility owned by the Dimmitts. A Cadillac dealership (also owned by the Dimmitts) is just south of the Chevrolet dealership. The entire eastern boundary of the property fronts on the Lake, while perhaps a dozen or so single-family homes, mainly constructed in the 1990s, sit on large lots scattered throughout the area immediately north of the property. From that area to Enterprise Road, a major arterial east-west roadway approximately 2,000 feet north of the Trustee's property, the land is largely undeveloped. The property immediately to the south is also classified as RS and is also largely vacant at the present time, except for a few single-family dwellings. The land which lies southeast of the property and the Lake is also designated RS and consists of a series of upscale, large, single-family residential subdivisions. The local roads adjacent to and near the property are substandard and do not meet the City or County standards. The main access to the property (from the west) is from U.S. Highway 19 using First Avenue North, which intersects with U.S. Highway 19 next to the car dealership. Because of a median in the middle of U.S. Highway 19, however, cars entering U.S. Highway 19 from First Avenue North can only turn right (northbound).1 The only access from the property to an intersection allowing vehicles to turn north or south on U.S. Highway 19 is provided by traveling south on a series of narrow, meandering, residential County roads (e.g., Third Avenue South, Second Street East, Fourth Avenue South, Union Street, and Soule Road) and eventually reaching Sunset Point Road (State Road 588), an east-west roadway intersecting with U.S. Highway 19 to the west. There is no access to the property from the north. The evidence shows that partly because of the poor road access, the nearby car dealerships and other commercial development, and the commercial lighting at the car dealerships which remains on throughout the night, the property has never been developed. Another contributing factor is that the former long-time owners of the northern half of the property (until it was sold to the Dimmitts in December 2001) had no wish to develop the property while they retained ownership. The Land Use Categories and History of the Area When the County's first comprehensive plan was adopted in 1974, three residential categories were established: low density (up to 7.5 units per acre); medium density (up to 15 units per acre); and high density (up to 30 units per acre). At that time, the Trustee's property and most of the surrounding residential properties were designated the least intensive residential use category and remained unchanged until 1982. In response to the state Growth Management Act, in 1980 the PPC developed more specific residential categories to manage population growth. The low density category was further defined to include five residential categories: Preservation (0.5 units per acre); Residential Conservation (1.0 units per acre); Residential Suburban (2.5 units per acre); Residential Low (5.0 units per acre); and Residential Urban (7.5 units per acre). As noted above, in 1982 the County reclassified the upland portion of the property, as well as the properties to its north and south, and west of the Lake, as RS. Some other areas to the southeast and northwest of the Trustee's land were reclassified at 5.0 dwelling units per acre, which category is now known as RL. In September 1984, two zoning requests "in the neighborhood [of the Trustee's property]" to allow "multifamily development at 5.0 units/acre" were denied by the County, mainly because the area contained "very low density single-family housing, with houses sitting on large lots (mostly about 2 acres in size), used in a residential/agricultural manner." At the same time, the County instructed its staff to "review zoning and Land Use Plan designation in the area to insure protection of the existing character of the land." That same year, the County amended the land use classification on these properties from RL, which permitted 5.0 units per acre, to RS, which permitted only 2.5 units per acre. In 1987, the City annexed a 17.4-acre vacant tract of land directly south of the Lake (and southeast of the Trustee's property). Before annexation, the property was classified as Residential/Open Space. According to a PPC recommendation presented to the County, the City filed an application with the County seeking to amend the CLUP (now known as the FLUP) by changing the land use to RS so that the vacant land would "be compatible with the existing land use pattern in this vicinity." The change was approved by the County. In all, at least thirteen parcels in the Lake Chautauqua area have been reclassified since 1980. Many of these are downzoning changes which merely reflect what had actually been planned, developed, and built pursuant to the dictates of the marketplace. In other words, the change reflected existing development of not more than 2.5 units per acre. There are also two instances when the Commission upzoned parcels in the area, that is, increased the allowable density from Recreation/Open Space to a higher category (7.5 units per acre), but these properties are outlying parcels and not in the immediate area. Most recently (early 2003), a developer proposed (and has pending a request) to develop six lots 130 feet by 600 feet in depth with single-family dwellings on property lying on the western shore of the Lake just north of the Trustee's property. These large lots would be consistent with the development now existing immediately to the west (and just north of the Trustee's property). It is fair to infer from the evidence that the County's intent over the last 25 years or so has been to restrict development in the area around the Trustee's property to single-family residences with a density of no more than 2.5 units per acre. The Application On February 21, 2002, the Trustee filed an application with the City for a change in land use designation on its property from RS and P to RL and P (so as to increase density from 2.5 to 7.0 units per acre). Although not a part of this proceeding, the Trustee also filed an application seeking to rezone the property from Rural Residential to Low Medium Residential and Preservation. The City's Zoning Department reviewed the application, found that all applicable criteria had been met, and recommended approval. The application then proceeded to a public hearing before the City's Community Development Board (CDB) on May 21, 2002. Following the public hearing, the CDB recommended approval of both applications. On June 20, 2002, the matters were taken up by the City Commission. The staff's detailed report recommending approval is found in Petitioners' Exhibit 2. Because of neighborhood opposition, however, the Trustee agreed to amend the application by reducing the density from 7.5 units per acre (RL) to 5.0 units per acre (RS). Thereafter, the City approved the application. This approval was formalized through the adoption of Ordinance No. 6978-02. At that point, the City became the nominal applicant for the amendment. A copy of the amendment was then forwarded to the Department of Community Affairs (DCA). The DCA's review was completed on October 3, 2002, when it advised the City by letter that it had "no objections to the proposed amendment" and that its letter would serve as the DCA's Objections, Recommendations and Comments. The application was submitted to the PPC on August 13, 2002. Following its review, the PPC staff, together with the staff of the Professional Advisory Committee (PAC), which is composed of professional planning staff members from the various municipalities throughout the County, recommended that the application be approved. On September 18, 2002, the PPC, by a 6-5 vote, recommended denial of the application, mainly because of traffic issues. Under the review process, the matter then came before the CPA. However, the City and the Trustee requested that the matter be remanded to the PPC to enable the Trustee to address the traffic issues. A remand was approved by the CPA on October 15, 2002. After reconsideration of the matter, which included proposed changes by the City to mitigate the traffic impact, the PPC staff and PAC unanimously recommended approval of the application. The application then proceeded to the PPC, and by a 9-3 vote on March 19, 2003, the PPC recommended approval. Although land use amendments recommended for approval by the PPC are "rarely" overturned or changed by the CPA, on April 1, 2003, the Board of County Commissioners, sitting as the CPA, unanimously rejected the proposed amendment. The same date, Resolution No. 03-55 was adopted which memorialized this action and indicated that the decision was based "upon the facts presented at the hearing, which included the character of the neighborhood and transportation impacts." According to the parties' Pre-Hearing Stipulation, the rejection was "due to [the amendment's] incompatibility with and negative impact on the established character of the neighborhood and the precedence [sic] of allowing multi-family development into an overwhelming single-family residential area." This appeal followed. The issues in the case Under the Countywide Rules, which were adopted in 1989 and govern changes to the FLUP, depending on their size and nature, plan amendments are classified into two categories: subthreshold amendments and general amendments. The former type of amendment is minor in nature and entails a less rigid review process while general amendments (those that do not qualify as subthreshold amendments) must be evaluated according to six "Relevant Countywide Considerations" (Considerations) found in Sections 5.3.5.1 through 5.3.5.6. Because the proposed amendment falls within the general amendment category, the six Considerations must be reviewed to determine if any come into play. If an amendment adversely impacts a Consideration, it is not consistent with the FLUP. In denying the amendment, the CPA determined that only two Considerations were relevant and would be impacted - Section 5.3.5.2 (Adopted Roadway Level of Service (LOS) Standard) and Section 5.3.5.6 (Adjacent to or Impacting an Adjoining Jurisdiction). All other Considerations were determined to be inapplicable. Although the County's Resolution indicated that the traffic Consideration played a part in its decision to deny the amendment, the parties' Prehearing Stipulation reflects that the CPA no longer considers that Consideration to be in issue. However, because evidence concerning traffic was presented at hearing, albeit more in the context of impacts on the character of the neighborhood than on LOS standards on U.S. Highway 19, a discussion of that Consideration is appropriate. Section 5.3.5.2 provides in part that "the amendment must not be located on or impact a roadway segment where the existing Level of Service (LOS) is below LOS 'D', or where projected traffic resulting from the amendment would cause the existing LOS to fall below LOS 'D'." Here, however, the evidence shows that the portion of U.S. Highway 19 (directly west of the property) between Enterprise Road and Sunset Point Road is already operating at LOS "F". Under the existing land use classification (RS), the Trustee (or developer) can construct as many as 46 single- family homes. At hearing, the developer acknowledged that the property can be successfully developed in that mode. Assuming that the maximum number of homes would be built, regardless of which type of development occurs, the traffic impacts would be essentially the same since a town home generates only 60 percent of the traffic of a single-family home. The evidence also shows that any additional traffic generated by development will have a negligible overall impact (less than three-tenths of one percent of the existing capacity) on U.S. Highway 19, which is already at LOS "F". The Florida Department of Transportation concurs in this finding, and has concluded that the development will not adversely impact that road. As noted above, the plan amendment was initially rejected by the PPC by a 6-5 vote, mainly because of traffic issues, and a concern that the additional traffic onto U.S. Highway 19 at First Avenue South might have a negative impact on that roadway. The City and Trustee then requested that the CPA remand the application to the PPC so that traffic issues could be further addressed. At that time, the City considered two alternatives to alleviate traffic concerns and provide a different access route to the area. First, it considered the possibility of extending Second Avenue South to the east and southeast to connect with, and widen, Lake Shore Drive (a County road), which runs around parts of the northwestern and southwestern sections of the Lake, and eventually provides access to Sunset Point Road, which then runs west to U.S. Highway 19. However, the County declined to participate in that effort and thus this proposal was not considered to be feasible. The City also considered extending Chautauqua Avenue north (over City right-of-way) to Enterprise Road, a main arterial east-west roadway that also intersects with U.S. Highway 19 (and enables the driver to turn either left or right at that intersection). If the road is extended in that fashion, it would provide residents in and near the subject property with access to Enterprise Road, and also provide other area residents with access to a City park that may be built just south of Enterprise Road. As to this alternative, even though the developer's share of costs (using the City's calculations) is only 17 percent, the developer has agreed to pay one-half of the cost of the road improvements. With this improvement, both parties now agree that the traffic Consideration has been resolved. Based on the foregoing, it is found that the plan amendment is consistent with the transportation Consideration and will not adversely impact LOS standards on U.S. Highway Two of the County witnesses conceded as much at the final hearing. Section 5.3.5.6 generally provides that if the property adjoins another jurisdiction, the plan amendment must not adversely impact that jurisdiction. In determining whether the plan amendment is consistent with this Consideration (and does not impact the adjoining County land), reference to the goals and policies within the Countywide Comprehensive Plan is necessary. The Land Use Element Goal provides in part that "[t]he land uses associated with development should be compatible and reasonable in terms of both the land, surrounding uses, and the public interest." Two unnumbered Policies within the same Element further provide that "land development patterns should recognize and support coherent neighborhoods," and that "land planning should weigh heavily the established character of predominately developed areas when changes of use or intensity of development is contemplated." In this case, there are enclaves of County land lying on the northern, southern, and eastern boundaries of the Trustee's land. The County contends that the proposed change is inconsistent with the Consideration because it adversely affects the "character" of the adjoining County land in two ways: (a) by the creation of a new access road to the north through a quiet, residential neighborhood, and (b) by the construction of town homes in an area historically classified as RS, which only allows the construction of single-family homes. If the plan amendment is approved, the City has decided to extend Chautauqua Avenue to Enterprise Road, giving the new (and existing) residents an outlet to the north. This alternative was chosen since the County has declined to participate in the southern alternative. The extension will provide access to a new City park, and the developer will pay more than his fair share to aid in the construction of the road. According to the City, the extension is necessary to mitigate the increased traffic from the new project. Currently, the roads in the area around where the extension will be built can be characterized as secluded and rural, with only a small amount of traffic. Besides the automobiles of the existing residents, the only other vehicles using the roads are those being tested by the nearby Chevrolet dealership after being repaired. If the plan amendment is approved, and the town homes constructed, the project will generate hundreds of new trips per day. Understandably so, existing residents of the area (as well as the County) fear that if the road is extended, it will become a "cut-through" street for non-residents traveling north on U.S. Highway 19 to Enterprise Road and who wish to avoid that intersection. Given the current level of traffic on U.S. Highway 19 (LOS "F"), it is fair to infer that this fear is well-founded. Accordingly, by extending Chautauqua Avenue to Enterprise Road, the character of the existing neighborhood will be adversely impacted by the increased traffic generated by new residents seeking an outlet and non-residents using the street as a cut-through. It is true that some form of traffic mitigation will still be required if the plan amendment is not approved, and single-family homes are built on the Trustee's property. However, when or if the property will be developed, and the extent of such development, is not known, and there is no indication in the record that the City will still seek to mitigate this traffic by extending Chautauqua Avenue. The evidence shows that the established character of the neighborhood is quiet, secluded, and low density residential, with many of the homes having large, oversized lots. As noted earlier, a proposal is now pending before the County to develop the area directly north of the Trustee's property along the Lake with six single-family dwellings on "large estate lots behind a gated wall." By doubling the density on the Trustee's property from 2.5 to 5.0 units per acre, the character of the area would be changed, and the new density would be inconsistent with the historic land use and development pattern of the area. The evidence also shows that the residents who live immediately north of the Trustee's property purchased their land, and built their homes, with the expectation that the area would be "a detached single-family residential community within the 2.5 units per acre limitation." For more than 20 years, the County's land use decisions have been consistent with this expectation. Petitioners' witnesses contend, however, that the town homes will (a) serve as a buffer between the commercial uses which lie on the western side of Chautauqua Road and the existing single-family homes which lie on the eastern side, and (b) provide a transition or gradual stepdown in intensity from the commercial uses along U.S. Highway 19 to town homes to single-family homes, which practice is consistent with good land use planning. However, the area maps and site plan introduced into evidence clearly show that the town homes would not buffer anything except the Lake, since the town homes would run from the Lake all the way westward to the rear of the Chevrolet dealership. In other words, to provide a buffer, logically it would be necessary that the town homes be placed between the commercial areas and the single-family homes. The residential property to the north and south (which purportedly would be buffered) is already located adjacent to, and directly east of, the commercial development along U.S. Highway 19, and the town homes would simply increase the density of the property between the two residential areas by 100 percent. For the same reasons, the construction of town homes would not provide a transition or step down in the intensity of development from west to east since they would not be built between the existing homes and U.S. Highway 19. Based on the foregoing facts, it is found that the proposed amendment will adversely affect the character of the neighborhood (and impact the adjoining County land) and is therefore inconsistent with Section 5.3.5.6 of the Countywide Rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners of Pinellas County, sitting as the Countywide Planning Authority, enter a final order determining that the plan amendment is inconsistent with Section 5.3.5.6 and that the amendment should be denied. DONE AND ENTERED this 8th day of September, 2003, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2003.
The Issue The issue presented is whether the land clearing permits issued to Respondents Young by Respondent Monroe County comport with the requirements of Chapter 380, Florida Statutes.
Findings Of Fact On October 18, 1988, a telephonic motion hearing was conducted in this cause. During the course of that motion hearing, the parties requested a ruling as to which party carries the burden of proof in this proceeding. The undersigned ruled at that time that the burden of proof is on Respondents James D. Young, Sr., and Oleva A. Young. On October 25, 1988, an Order was entered in this cause memorializing the rulings made during the course of that telephonic hearing. Paragraph numbered 7 of that Order provides as follows: 7. This being a proceeding pursuant to Chapter 380, Florida Statutes, the burden of proof in this cause is on the applicants for the permit/development order, the entitlement to which is the subject matter of this proceeding. There is no evidence in this cause that any party filed an appeal from the October 25, 1988, Order. Immediately after the commencement of the final hearing in this cause, Respondents James D. Young, Sr., and Oleva A. Young again raised the issue of which party carries the burden of proof in this proceeding. Upon failing to obtain a ruling that the Petitioner Department of Community Affairs carries the burden of proof, Respondents James D. Young, Sr., and Oleva A. Young announced their refusal to participate further in this proceeding. Respondents James D. Young, Sr., and Oleva A. Young failed to present any evidence in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Respondents James D. Young, Sr., and Oleva A. Young's applications for Monroe County Land Clearing Permits Nos. 8810000446, 8810000449, and 8810000450. DONE and RECOMMENDED this 21st day of December, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 21st day of December, 1988. COPIES FURNISHED: Patty Woodworth, Secretary Land and Water Adjudicatory Commission Planning and Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David Paul Horan, Esquire 608 Whitehead Street Key West, Florida 33040 Larry Keesey, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 =================================================================
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) is whether to grant the Petition to Establish the Madeira Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issues are whether the City of Jacksonville's (City's) Ordinance No. 2008-628-E adopted on September 9, 2008, which remediates Ordinance No. 2007-383-E, is in compliance, and whether Chapter 2009-96, Laws of Florida, renders this proceeding moot, as alleged by Petitioner, Dunn Creek, LLC (Dunn or Petitioner).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Petitioner is the owner of a vacant 89.52-acre parcel of property in Council District 11, which is located in the northern reaches of the City. More specifically, the property lies around four or five miles east of the airport and Interstate 95, just south of Starratt Road between Dunn Creek Road and Saddlewood Parkway, and within a "couple of miles of Main Street," a major north-south State roadway. Dunn submitted oral and written comments to the City during the plan amendment process. As such, it is an affected person and has standing to participate in this proceeding. The City is a local government that is subject to the requirements of Chapter 163, Florida Statutes. It adopted the amendments being challenged by Dunn. Except for the challenged plan amendment, the City's current Plan is in compliance. Intervenor Britt owns property and resides within the City. The parties have stipulated to the facts necessary to establish that she is an affected person and therefore has standing to participate in this matter. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the City. Background On May 14, 2007, the City adopted Ordinance No. 2007- 383-E, which amended the FLUM by changing the land use category on Dunn's property from LDR to RPI, which would allow an increase in the density and intensity of use on the property. (The LDR land use allows up to seven dwelling units per acre, while RPI is a mixed-use category that allows up to twenty dwelling units per acre if built to the maximum development potential.) On July 9, 2007, the Department issued its Notice and Statement of Intent finding that the Ordinance was not in compliance on the ground the map change was not supported by adequate data and analysis to demonstrate that the City would achieve and maintain the adopted LOS standards for the roadways within its jurisdiction. The Department further determined that the traffic study submitted by the City was not based on the maximum development allowed under the RPI category. On August 1, 2007, the Department initiated this case by filing a Petition, which tracked the objections described in its Notice and Statement of Intent. The City, Dunn, Department, and Britt later entered into settlement discussions. As part of the settlement discussions, Dunn submitted a revised traffic study and coordinated with other applicants for map changes to perform cumulative traffic impact studies. The parties eventually entered into a proposed settlement agreement which would limit development of the property to 672 condominiums/townhomes and 128,000 square feet of non-residential uses through an asterisk to the Plan. See Petitioner's Exhibit 1, p. 25. Also, the proposed settlement agreement noted that the data and analysis confirmed that certain future road improvements in the Capital Improvement Element (CIE) of the Plan would offset the traffic impacts of the new RPI land use. These were improvements to the East-West Connector (U.S. Highway 17 to New Berlin Road) and Starratt Road. Id. Finally, Dunn agreed to pay $4.3 million in "fair share money" to the City to offset the proportionate share of the development's traffic impacts. See Petitioner's Exhibit 6. The proportionate share agreement was intended to match the trip count anticipated from the RPI development. On September 3, 2008, the proposed settlement agreement and remedial amendment were presented to the City Council Land Use and Zoning Committee (Committee) for approval as Ordinance Nos. 2008-627 and 2008-628, respectively.3 At that meeting, the Committee heard comments from several members of the public who opposed the amendment, a Dunn attorney, and the City's Director of Planning and Development, William B. Killingsworth. The City Council member who represents District 11 and is a member of the Committee also spoke in opposition to the proposal. Based primarily upon data in a new traffic study prepared on August 28, 2008, by a member of Mr. Killingsworth's staff, and the opposition of the District 11 Council member, the Committee voted unanimously to revise the proposed settlement agreement and remedial amendment by changing the land use designation on the property back to LDR, its original classification. The revised settlement agreement was approved by Ordinance No. 2008- 627-E, while the remedial amendment changing the land use was approved by Ordinance No. 2008-628-E. The two Ordinances were then forwarded to the full City Council, which approved them on September 9, 2008. The revised settlement agreement was later executed by the City, Department, and Britt, but not by Dunn, and is known as the Sixteenth Partial Stipulated Settlement Agreement. See Petitioner's Exhibit 2. The essence of the revised agreement was that by changing the land use back to its original designation, the potential adverse impacts to transportation facilities would be resolved. Id. The remedial amendment package was transmitted by the City to the Department for its review. On December 18, 2008, the Department issued a Cumulative Notice of Intent to Find Ordinance Nos. 2007-383-E and 2008-628-E in compliance. On January 8, 2009, Dunn filed a Motion to Amend Petition to Intervene pursuant to Section 163.3184(16)(f)1., Florida Statutes. Because Dunn objected to the revised settlement agreement and challenged the remedial amendment, the parties were realigned, as reflected in the style of this case. On June 1, 2009, Senate Bill 360, engrossed as Chapter 2009-96, Laws of Florida, became effective. That legislation amends Chapter 163, Florida Statutes, in several respects. Among other things, it designates the City as a Transportation Concurrency Exception Area (TCEA).4 See § 163.3180(5), Fla. Stat. The new law also provides that plan amendments for land uses of a local government with a TCEA are deemed to meet the LOS standards for transportation. See § 163.3177(3)(f), Fla. Stat. Therefore, after a TCEA becomes effective, the Department no longer has the authority to review FLUM amendments in the TCEA for compliance with state-mandated transportation concurrency requirements. However, Senate Bill 360 contains a savings clause, which provides that "this subsection does not affect any contract or agreement entered into or development order rendered before the creation of the [TCEA] except as provided in s. 380.06(29)(e)." See § 163.3180(5)(f), Fla. Stat. The City, Department, and Britt contend that this provision "saves" the Sixteenth Partial Stipulated Settlement Agreement executed by them in November 2008, and that the Department still retains jurisdiction to consider the remedial amendment. Conversely, Dunn contends that the savings clause does not apply to the revised agreement, that the Department no longer has jurisdiction to review the challenged amendment, that the remedial amendment was not authorized, and that because the remedial amendment never became effective, the Department's Petition should be dismissed as moot. Objections to the Remedial Amendment Besides the contention that the proceeding is moot, Dunn raises three issues in its challenge to the amendment. First, it contends that the amendment is not supported by relevant and appropriate data and analysis related to traffic impacts and therefore is not in compliance. Second, Dunn contends that the amendment does not address the concerns raised in the Department's original Notice and Statement of Intent regarding the City's achieving and maintaining the adopted LOS of affected roadways. See § 163.3184(16)(f)2., Fla. Stat. Third, Dunn contends that due to procedural errors in the amendment adoption process, it was unduly prejudiced. Data and analysis Because almost all of the unresolved FLUM amendments in this case involved "traffic issues," on September 4, 2007, a Department employee, Melissa Hall, sent an email to counsel for a number of applicants, including Dunn, describing "what the department would be looking for in terms of traffic analysis." See Petitioner's Exhibit 12, p. 1. The email required those applicants to submit revised traffic studies. Id. Among other things, the applicants were advised that the revised traffic impact analysis for each amendment had to use "a professionally acceptable traffic impact methodology." Id. Dunn followed the requirements of the email in preparing its revised traffic study. At the time Ordinance No. 2007-383-E was adopted, based on total background traffic, which includes existing traffic plus reserve trips for approved but not-yet-built developments, eight road segments in the study area already failed to meet LOS standards. (LOS E is the adopted passing standard on those roadways.) The study area includes affected roadways within a two-mile radius of the boundaries of the proposed project site where project traffic consumes more than one percent of the service volume. If the Dunn project is built, six segments impacted by the development will continue to fail. According to the City's expert, as a general rule, an applicant for a land use amendment is not required to bring a failing segment back up to its adopted LOS. Rather, it is only required to pay its proportionate share of the improvements for bringing it up to compliance. The unique aspect of this case is that the City has simply reclassified the property back to what it was, LDR, when Ordinance No. 2007-383-E was adopted. At that time, the Plan was in compliance. In response to Dunn's contention that Ordinance No. 2008-628-E is not supported by relevant and appropriate data and analysis, the City, joined by the Department and Britt, first contends that, given the unique circumstances presented here, no data and analysis were required. Alternatively, it contends that there are sufficient relevant and appropriate data and analysis to support maintaining the LDR land use designation. The data and analysis include the traffic study prepared by Dunn's consultant in October 2007, the additional traffic analysis performed by the City staff just before the Committee meeting, and the testimony provided at the Committee meeting on September 3, 2008. At hearing, the City first pointed out that the RPI designation was never determined to be in compliance, Ordinance No. 2007-383-E never became effective, and the property has remained LDR throughout this proceeding. See § 163.3189(2)(a), Fla. Stat. ("[p]lan amendments shall not become effective until the [Department] issues a final order determining the adopted amendment to be in compliance in accordance with s. 163.3184(9), or until the Administration Commission issues a final order determining the adopted amendment to be in compliance"). Therefore, the City takes the position that Ordinance No. 2008- 628-E did not need to be supported by data and analysis because the LDR category was the land use designation on the property at the time of the adoption of Ordinance No. 2008-628-E. In the same vein, it argues that the remedial amendment is the equivalent of a repeal of the prior ordinance (2007-383-E), which would not require any data and analysis support. While at first blush these arguments appear to be plausible, the City could not cite any provision in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-55 that relieves a local government from the requirement that a plan amendment be supported by data and analysis. The City also argues that even if Ordinance No. 2008- 628-E is deemed to be a change in the land use (from LDR to LDR), the net impact of the change would be zero. This argument is based on the accepted testimony of Mr. Killingsworth, who stated that the City, Department, and Florida Department of Transportation (FDOT) agreed upon a methodology which entitled the City to give "credit" for uses permitted under the existing land use category.6 Under that methodology, the City subtracts the number of trips that the existing land use (LDR) generates from the additional trips generated by the proposed land use (LDR). Therefore, the net transportation impact of a change from LDR to LDR, in effect, would be zero. The methodology is described in Petitioner's Exhibit 15, a memorandum authored by Mr. Killingsworth and sent on October 4, 2007, to Dunn and other parties seeking map changes in this case. The memorandum stated that the methodology described therein was "developed in coordination [with] FDOT District 2" and "is the suggested methodology for use in determining traffic impacts of proposed land uses for the City." See Petitioner's Exhibit 15, p. 1. Mr. Killingsworth could not cite any provision in Chapter 163, Florida Statutes, or Chapter 9J-5 allowing for such a credit for traffic generated by a prior permitted land use in the data and analysis required for a FLUM amendment. At the same time, however, Petitioner could not cite any rule or statute that prohibits the Department from allowing this type of methodology when deemed to be appropriate. Even though it differed from the methodology described in Ms. Hall's earlier email by allowing credit for the existing land use, it was nonetheless "a professionally acceptable traffic impact methodology" approved by the Department and FDOT and could be used as data and analysis to support a change back to the property's original land use classification. Therefore, it constitutes relevant and appropriate data and analysis to demonstrate that the net traffic impact of the change in land use from LDR to LDR is zero. The City further argues that if it was required to provide other data and analysis, the traffic impacts of the new ordinance are offset by the two roadway improvements negotiated with the Department in the proposed settlement agreement for Ordinance No. 2008-627. See Finding 7, supra. Based upon the City staff's analysis, which is found in City Exhibit 3, the LDR land use generates less trips than the RPI land use. (This study was prepared a few days before the Committee meeting in response to an inquiry from a Committee member.) More specifically, page 3 of that exhibit reflects that there are 169 less afternoon peak hour trips for LDR than RPI with the development cap of 672 dwelling units and 128,000 square feet of non-residential uses. It is fair to infer, then, that if the proposed mitigation in the original settlement agreement offsets the impacts of the more intense RPI land use, the mitigation also offsets the impacts of the less intense LDR land use. City Exhibit 3 is a comparative calculation of the difference in vehicle trips generated by development of the property under the LDR category approved by Ordinance No. 2008- 628-E and the development of the property under the RPI category approved by Ordinance No. 2007-383-E. Dunn points out, however, that the exhibit does not show how the trips generated are distributed on affected roadways or how those trips, as they may be distributed, affect LOS of any roadways. Despite the fact that the data in Exhibit 3 are limited to trip generation data, and establish no facts relating to the LOS of affected roadways, they support a finding that more trips will be generated under the RPI designation than the existing LDR designation. Also, they provide further support for a finding that if the proposed road improvements offset the impacts of the RPI use, the mitigation will offset the impacts, if any, of the original LDR use. For data and analysis relating to the LOS of affected roadways, the City, joined by the Department and Britt, rely upon a traffic study performed by Dunn's traffic consultant, King Engineering Associates, Inc. (King). That firm prepared a transportation analysis dated November 19, 2007, for the purpose of supporting a mixed-use development on the property under the RPI category. See Petitioner's Exhibit 8. This study, however, does not apply to development of the property under the LDR category because it was based upon a mixed-use project which would allow for credit based upon the internal capture of some trips. (In other words, a portion of the new trips will be internal to the site, that is, trips between the residential and commercial land uses on the property.) Because of this, any reference to the King study and proposed mitigation therein was deleted from the revised settlement agreement. In this respect, the study does not support the amendment. The King study addresses impacted roadway segments, existing and background traffic, proposed traffic generated by the development, and LOS for the impacted roadways, as suggested by Ms. Hall in her email. Dunn's traffic engineer established that in the impacted study area, six out of eight roadway links will continue to fall below adopted LOS standards based upon existing traffic and that generated by the RPI development (segments 174, 372, 373, 374, 377, and 543). See Table 4, Petitioner's Exhibit 8. The study also identifies proposed roadway improvements in the vicinity of the project site that are intended to help cure or mitigate the failing standards. See Petitioner's Exhibit 8, p. 12. These improvements are listed in the CIE and will cost around $85 million. A "fair share" agreement has also been executed by the City and Dunn, which requires Dunn to pay more than $4.3 million to offset impacts of the RPI development. Those monies would be applied to improvements in Sector 6.1 (the North Planning District), which includes Starratt Road and the East-West Connector. The agreement notes that this contribution would offset the proportionate share of traffic impacts of the proposed RPI development. Notably, the City has already funded both the widening of Starratt Road and the improvements to the East-West Connector, U.S. Highway 17 to Berlin Road, through the Better Jacksonville Plan. Therefore, even if the Dunn fair share agreement is not implemented, the two improvements will still be made. According to Dunn's engineer, the completion of the four projects listed on page 12 of his traffic study, which are labeled as "mitigation," will not restore or cure any of the LOS failures that now exist on the six impacted segments in Table 4 of the study. However, two of the failing segments (373 and 543) may be "helped" by the projects listed on that page. Dunn's engineer also analyzed City Exhibit 3 and concluded that if the Dunn property is developed as LDR, rather than RPI, there would be potentially one less roadway segment (374) impacted by development, while five other segments would continue to fail. When the proposed mitigation in the King study is factored in, he opined that the East-West Connector may help two other failing segments. He further opined that if LDR development on the property occurs, probably three of the six impacted segments will continue to fail adopted LOS standards. Even so, the improvements identified in the CIE, including those already funded by the Better Jacksonville Plan, should offset the proportionate share of traffic impacts associated with any future LDR development.7 The foregoing data and analysis establish that the LDR land use category generates less traffic impacts than the originally-proposed RPI use; that a change from LDR to LDR should have zero effect in terms of traffic impacts; that even if there are impacts caused by a change back to LDR, the proposed mitigation in the CIE will offset the proportionate share of the impacts associated with any LDR use; that while it differed from other studies, a professionally acceptable traffic impact analysis was used by the City to support the remedial amendment; and that the proposed road improvements are fully funded without having to implement the fair share agreement. Finally, in adopting the amendment, the City has reacted to the data and analysis in an appropriate manner. Does the Remedial Amendment Resolve All Issues? Dunn also asserts that the amendment does not resolve the issues raised by the Department in its Notice and Statement of Intent dated July 9, 2007. Under Section 163.3184(16)(f)2., Florida Statutes, an affected party may assert that a compliance agreement does not resolve all issues raised by the Department in its original notice of intent. The statute allows an affected party to then address those unresolved issues in the realigned proceeding. In this case, Petitioner asserts that the Department's original objection that the change in land use would result in a lowering of the LOS in the study area was not addressed by the remedial amendment. In its Notice and Statement of Intent to find the amendment not in compliance, the Department cited the following rules and statutes as being contravened: Sections 163.3164(32) and 163.3177(3)(b),(6)(a), (8), and (10), Florida Statutes, and Rules 9J-5.005(2)(a) and (c), 9J-5.006(2)(a), (3)(b)1. and 3., 9J-5.016(4)(a)1. and 2., and 9J-5.019(3)(a) through (h) and (4)(b)2. Although these sources of authority were cited in a single generic notice of intent as a basis for objecting to all seventeen map changes, it is assumed that they have equal application to this proceeding. The cited statutes relate to funding of transportation projects and concurrency issues, while the rules relate to data and analysis requirements, concurrency issues, the capital improvement element, and required transportation analyses, all subjects addressed by Dunn at the final hearing. Assuming arguendo that the remedial amendment does not address all of the issues raised in the original notice of intent, Dunn was given the opportunity to fully litigate those matters in the realigned proceeding. Procedural Irregularities Rule 9J-5.004 requires that the City "adopt procedures to provide for and encourage public participation in the planning process." See also § 163.3181(1), Fla. Stat. ("it is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible"). Dunn does not contend that the City failed to adopt the required procedures. Rather, it contends that the City did not follow those procedures during the adoption of the remedial amendment. More specifically, prior to the Committee meeting, Dunn says it spent "hundreds of thousands of dollars on top of the millions that [it] had spent previously, working for fourteen months in conjunction with the City and [Department]" so that the parties could resolve the Department's objections. Dunn argues that it was unduly prejudiced by the last-minute revisions made by the Committee and City Council, and that it did not have an adequate opportunity to respond. Dunn points out that a City Planning Commission meeting was conducted before the Committee meeting, and that body unanimously recommended that Ordinance Nos. 2008-627 and 628 be approved. It further points out that when the Committee met on September 3, 2008, the proposed revisions to the settlement agreement, the accompanying remedial amendment, and the new traffic data were not discussed until after the public comment portion of the meeting was closed. (The transcript of that meeting reflects, however, that after the new revisions and traffic study were raised, Dunn's counsel was briefly questioned about Dunn's traffic study and the density/intensity of the project. Also, according to Mr. Coe, a copy of the City's newly-prepared traffic study was given to a Dunn representative just before the Committee meeting.) For both public meetings, the City's published notices indicated that the purpose of the meetings was to consider the proposed revised settlement agreement and remedial amendment allowing a cap on the development of the RPI property through the use of an asterisk, as reflected in Ordinance Nos. 2008-627 and 2008-628. See Petitioner's Exhibits 16 and 17. Dunn contends that it had insufficient time between the Committee meeting on September 3, 2008, and the final City Council meeting on September 9, 2008, in which to review and evaluate the new traffic information and respond to the comments of the Committee member who supported the revisions. It also points out that, like other members of the public, Dunn's attorney was only given three minutes to present comments in opposition to the revised agreement at the City Council meeting on September 9, 2009. Notwithstanding any procedural errors that may have occurred during the City's adoption process, Dunn received notice and attended both the Committee and City Council meetings, it presented written and oral objections to the revised plan amendment prior to and at the City Council meeting on September 9, 2008, and it was given the opportunity to file a petition to challenge the City's decision and present evidence on the revisions at the hearing in this case. Savings Clause in Senate Bill 360 In support of its position that the matter is now moot, and that the savings clause in Senate Bill 360 does not "save" the revised settlement agreement executed by the City, Department, and Britt, on November 10, 2008, Dunn submitted extrinsic evidence to show the Legislature's intent in crafting a savings clause, which include four separate analyses by the Legislative staff (Appendices A-D); an article authored by the Bill's Senate sponsor (Senator Bennett) and published in the St. Petersburg Times on May 23, 2009 (Appendix E); a similar article authored by the same Senator and published in the Sarasota Harold-Tribune on June 11, 2009 (Appendix F); a seven-page letter from Secretary Pelham to Senator Bennett and Representative Murzin dated July 23, 2009, concerning the new law and a two and one-half page summary of the bill prepared by the Department (Appendix G); a power point presentation for the Senate Community Affairs Committee on October 6, 2009 (Appendix H); and an article published in the October 2009 edition of The Florida Bar Journal (Appendix I). The Florida Senate Bill Analysis and Fiscal Impact contained in Appendix A was prepared on February 17, 2009, and does not reference the relevant savings clause. A second Senate Bill Analysis and Fiscal Impact contained in Appendix B and prepared on March 19, 2009, merely acknowledges that the legislation includes a savings clause but provides no further explication. See App. B, p. 9. Appendix C is the Florida House of Representatives 2009 Session Summary prepared in May 2009, while Appendix D is a Summary of Passed Legislation prepared by the House of Representatives Economic Development and Community Affairs Policy Council on an undisclosed date. Neither document addresses the issue of what types of agreements were intended to be saved. Appendices E through I are guest newspaper columns, correspondence, a power point presentation, and an article in a professional journal. None are authoritative sources of legislative intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2008-628-E, which remediates Ordinance No. 2007- 383-E, is in compliance. DONE AND ENTERED this 28th day of December, 2009, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2009.
