The Issue The issue in this case is whether an amendment to the future land use map of the Martin County comprehensive plan, Amendment No. 98-3, is "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes (2000).
Findings Of Fact The Parties. Hobe Sound Citizens Alliance, Inc. (hereinafter referred to as the "Alliance"), is a not-for-profit corporation organized under the laws of Florida. The Alliance was organized in July 1998 primarily to respond to proposed land use designation changes for the property that is the subject of this proceeding and for other property. The Alliance has three officers (a President, Secretary, and Treasurer) and an eight-member Board of Directors. The officers and directors of the Alliance all reside in Martin County, Florida. The members of the Board of Directors are from different neighborhoods in Martin County. The Alliance maintains a mailing list of approximately 500 individuals who are considered "members" of the Alliance. These individuals have all expressed interest in the activities of the Alliance, but have not taken any formal steps to join the Alliance, such as paying dues or completing an application for membership. In fact, the Alliance does not collect dues or have a membership application. Petitioner, Mary A. Merrill, is an individual who resides in an area of unincorporated Martin County, Florida, known as "Hobe Sound." Ms. Merrill serves as President of the Alliance. During the process of adopting the amendment which is the subject of this matter, Ms. Merrill and the Alliance made comments and objections. Respondent, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is located on the east coast of Florida. The County is bordered on the east by the Atlantic Ocean, on the south by Palm Beach County, on the north by St. Lucie County, and on the west by Lake Okeechobee and a portion of Okeechobee County. Intervenor, Hobe Sound Land Company, Ltd. (hereinafter referred to as the "Land Partnership"), is a limited partnership organized under the laws of Florida. The Land Partnership's general partner is Hobe Sound Land Company, Inc. (hereinafter referred to as the "Land Company") and the limited partners are a number of trusts organized for the benefit of various members of the Reed family. The Land Partnership is the owner of the property which is the subject of this proceeding (hereinafter referred to as the "Subject Property"). The County's Comprehensive Plan. General The County has adopted a comprehensive land use plan as required by the Local Government Comprehensive Planning and Land Development Regulation Act, Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Martin County Florida Comprehensive Growth Management Plan 1999/00 (hereinafter referred to as the "Plan"), has been determined to be "in compliance" as those terms are defined in the Act. The Future Land Use Element The Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE"), consisting of the following: Section 4-1, "Background Information"; Section 4-2, "Analysis of Land Use Features"; Section 4-3, the "Future Land Use Map and Map Series"; Section 4-4, "Goals, Objectives and Policies"; Section 4-5, "Performance Standards"; and Section 4- 6, "Implementation Strategies." Sections 4-1 and 4-2 consist of what the County refers to as "narrative" sections which the County gives less weight to in determining whether an amendment to the Plan is "in compliance" than it gives Section 4-4, which contains the Goals, Objectives, and Policies of the Plan. These narrative sections of the Plan, however, are not "data and analysis." They were adopted as a part of the Plan. See the second unnumbered page of the Plan. The FLUE establishes 13 separate and distinct land-use categories. These land-use categories determine the uses to which property subject to the Plan may be put. The Plan's Future Land Use Map and Map Series (hereinafter referred to as the "FLUM"), depicts all property subject to the Plan and depicts the land use category assigned to all property in the County. Among the land use categories established in the FLUE pertinent to this proceeding is the "Institutional" land use category. To distinguish this category from the "Institutional- County" land use designation of the FLUE, the category is referred to as the "General Institutional" category. Property designated as General Institutional is subject to the following sub-categories or intensities of use: "retirement home, churches, schools, orphanages, sanitariums, convalescent, rest homes, cultural organizations, military, colleges, hospitals, federal, municipal, utilities, and rights- of-way." Section 4-4.M.1.h.(3). of the FLUE, provides the following Policy governing the use of General Institutional property: General Institutional - The General Institutional category accommodates public and not-for-profit facilities such as, but not limited to schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. . . . While Institutional use is reserved for the above uses, this shall not prohibit for- profit medical offices and other ancillary facilities owned by a non-profit hospital as long as they are part of a Planned Unit Development. . . . . . . . The Plan also establishes land use categories in the FLUE for the residential use of property. All land which is designated for residential development on the FLUM is subject to Section 4-4.M.1.e. of the FLUE: The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives, and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resource and plan for fiscal conservancy. There are seven types of designated residential land use categories created by the Plan. Those uses include the following: 10 units per acre for "high density;" 8 units per acre for "medium density;" 5 units per acre for "low density residential;" 2 units per acre and 1 unit per acre for "estate density;" .5 units per acre for rural areas. There is also a "mobile home density" category. The lowest density of .5 units per acre is reserved for those areas that are designated as rural. The estate density categories are used for areas are located "generally on the fringe of the urban service districts and generally are not accessible to a full complement of urban services." Sections 4-4.M.1.e.(1) and (2) of the Plan. Of primary pertinence to this proceeding is the residential land use designation of "Low Density Residential." Residential land designated "Low Density Residential" is limited by Section 4-4.M.1.e.(3). of the FLUE as follows: Low Density Residential Development. The low density residential designation is reserved for land accessible to existing urban service centers or located in the immediate expansion area. Densities permitted in this area shall not exceed five (5) units per gross acre. Review of specific densities shall be directed toward preserving the stability and integrity of established residential development and toward provided equitable treatment to lands sharing similar characteristics. Design techniques such as landscaping, screening and buffering shall be employed to assure smooth transition in residential structure types and densities. Generally, where single family structures comprise the dominant structure type within these areas, new development on undeveloped abutting lands shall be required to include compatible structure types on the lands immediately adjacent to existing single family development. Excessive Residential Property and the Active Residential Development Preference Planning System. Section 4-2.A.6.c. of the Plan recognizes that the County has designated an excessive amount of land for residential use. This section of the Plan indicates that, at the time the Plan was adopted, there was a projected need for 26,231 acres of land to accommodate the projected population of the County to the Year 2005. It also indicates that, as of the date of the Plan, 35,834 acres of vacant land had been designated for residential use, well in excess of the amount of land necessary to meet demand. Despite the requirements of the Act and Chapter 9J-5, Florida Administrative Code, requiring appropriate planning for residential needs within a local government's jurisdiction, the Plan was approved by the Department as being "in compliance" with the designation of an excessive amount of land for residential use in the County. Instead of requiring strict compliance with the provisions of the Act and Chapter 9J-5, Florida Administrative Code, dealing with planning for future residential land use needs, the County and the Department entered into a Stipulated Settlement Agreement specifying that the Plan include a requirement that the County undertake the collection of more current land use data and refine the various land use predictive factors it had been using. The Stipulated Settlement Agreement also required that the County institute an Active Residential Development Preference Planning System (hereinafter referred to as the "ARDP System"), to monitor the timing and location of residential development in the County. Section 4-2.A.8. of the Plan provides a Policy dealing with future residential land use requirements for the County. The Policy reports the over-allocation of vacant land designated for residential uses in the County and the need for the ARDP System. The Policy specifically provides, in part: While the current pattern on the Future Land Use Map will remain as is, an active residential development "125% test" will be used in conjunction with location and land suitability requirements in the review and approval of future land use and/or project requests. These requirements shall include, at a minimum, location within the Primary, or Secondary Urban Service District; consistency with the Capital Improvement Element; protection of natural resources; and adequate provision of facilities and services at the adopted level of service. The Policy goes on to provide that residential development in the County will be maintained at 125 percent capacity through the ARDP System and describes other measures to reduce the amount of excessive residential property to be developed in the County. Section 4-4.A.6. of the Plan establishes a Policy requiring that the County implement the ARDP System by May 1991. Consistent with Section 4-4.A.6. of the Plan, the County has adopted the ADRPP System. Environmental Protection Considerations in the FLUE Section 4-2.A.6.d. of the Plan recognizes that residential use of land located near or on the coast can threaten the "preservation of the very attributes of the area which make it attractive for growth." Therefore, the Policy provides that any such development is to be planned to minimize the threat by "assuring that the environmentally sensitive and threatened habitats are preserved." The Policy also provides: Certain areas in Martin County are recognized and beginning to be identified by federal, state and local programs as environmentally sensitive. These areas provide special value in producing public benefits, including: recreational opportunities, life support services, tourism, commercial and sport fishing, scenic values, water purification, water recharge and storage, and sensitive habitats critical to the survival of endangered wildlife and plants. Urban development in or adjacent to environmentally sensitive areas can significantly reduce their environmental values. Additionally, there are important public health concerns associated with development in these areas, particularly in relation to potable water and waste disposal in low lying areas. . . . Section 4-2.A.6.f. of the Plan recognizes the importance of natural vegetation. The Policy also recognizes that urban development removes or alters the County's natural vegetation. Coastal Management Element Section 8.4 of the Plan establishes the Goals, Objectives, and Policies for the Coastal Management Element of the Plan. The area subject to this Element is described on maps adopted as part of the Element, including the map depicted in Figure 8-1. The Subject Property is not located within the coastal management area established by the Element. Section 8.4.A.2.a. of the Plan provides "land use decisions guidelines" requiring a consideration of the impacts of development on fish, wildlife, and habitat, including cumulative impacts. These guidelines, however, apply to development within the coastal management area established by the Plan. Conservation and Open Space Element Chapter 9 of the Plan establishes the Conservation and Open Space Element. The Goals, Objectives, and Policies of the Element are set out in Section 9-4 of the Plan. Section 9-4.A. of the Plan establishes the following Goal: The goal of Martin County is to effectively manage, conserve and preserve the natural resources of Martin County giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries and wildlife with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon. Section 9-4.A.2.a. of the Plan requires that the County continue to enforce and improve its Wellfield Protection Ordinance. The Wellfield Protection Ordinance is intended to regulate land use activities within the zones of influence of major wellheads. Section 9-4.A.2.b. of the Plan provides the following: New potable water wells and wellfields shall be located in areas where maximum quantities of regulated materials (e.g. hazardous and toxic materials) do not exceed the proposed criteria of the Wellfield Protection Ordinance. At the time future wellfield locations are identified, establishment of incompatible land uses within the zones of influence of such wells shall be prohibited. Objective 9-4.A.9. of the Plan provides for the protection and enhancement of wildlife and habitat. Policy 9- 4.A.9.a. of the Plan provides the following: Land use decisions shall consider the effects of development impacts on fish, wildlife and habitat and the cumulative impact of development or redevelopment upon wildlife habitat. In cases where rare, endangered, threatened or species of special concern are known to be present, a condition of approval will be that a preserve area management plan be prepared at the time of site plan submittal. . . . To ensure adequate protection, protected plants and animals, which cannot be provided with sufficient undisturbed habitat to maintain the existing population in a healthy, viable state on site, shall be effectively relocated in accordance with local, state and federal regulations. Potable Water Service Element Chapter 11 of the Plan establishes a Potable Water Service Element. The Goals, Objectives, and Policies of this Element are contained in Section 11-4. Section 11-4.A.5 of the Plan provides that, by 1991, the County was to establish programs to conserve and protect potable water resources within the County. The specific components of the programs are provided. None of those provisions are relevant to this matter. Drainage and Natural Groundwater Aquifer Recharge Element Chapter 13 of the Plan establishes a Drainage and Natural Groundwater Aquifer Recharge Element. The Goals, Objectives, and Policies of this Element are contained in Section 13-4. Section 13-4.A.1. of the Plan establishes the following Objective: Martin County will maintain existing ground water and surface water quality, improve areas of degraded ground water and surface water quality and prevent future contamination of ground water supply sources. Section 13-4.A.2. of the Plan establishes the following Objective: "Enhance the quantity of ground water recharge and maintain desirable ground water levels." The Objectives, and the Policies established to carry them out, recognize the significance of ground waterrecharge and groundwater levels in the County. Preservation of groundwater recharge and groundwater levels is a significant goal of the County. None of the Policies established to carry out the foregoing Objectives specifically eliminate the use of vacant land located near wells for residential purposes. Plan Amendment Adoption Procedures Procedures for the adoption of amendments to the Plan are established in Section 1.11, "Amendment Procedures," of the Plan. Section 1.11.C.2. of the Plan provides the following procedures for evaluating changes to the FLUM: In evaluating each land use map amendment request, staff begins with the assumption that the 1982 Land Use Map, as amended, is generally an accurate representation of the Board of County Commissioners and thus the community's intent for the future of Martin County. Based on this assumption, staff can recommend approval of a requested change providing consistency is maintained with all other Elements of this Plan if one of the following four items is found to be applicable. That past changes in land use designations in the general area make the proposed use logical and consistent with these uses and there is adequate availability of public services; or That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. That the proposed change would meet a necessary public service need which enhances the health, safety or general welfare of County residents. In the event that staff can not make a positive finding regarding any of the above items, then staff would recommend denial. (Emphasis added). The Plan requires that the Director of the County's Growth Management Department, after review of a proposed amendment, submit recommendations to the Local Planning Agency for consideration. The Local Planning Agency is required to certify its findings and recommendations to the Board of County Commissioners of Martin County (hereinafter referred to as the "Board"). Miscellaneous Provisions of the Plan. Section 4-2.A.6.e. of the Plan deals with agricultural use and vacant land. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.A.1.a. of the Plan establishes a Policy that requires that the County revise its Land Development Regulations in existence at the time the Plan was adopted. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. Section 4-4.E.1. of the Plan requires that the County revise its Land Development Code by July 1990. The evidence failed to prove that the amendment at issue in this case is inconsistent with this portion of the Plan. The County's Sustainable Communities Designation Agreement. The County and the Department of Community Affairs (hereinafter referred to as the "Department"), entered into a Sustainable Communities Designation Agreement (hereinafter referred to as the "Designation Agreement"). The Designation Agreement was entered into pursuant to Section 163.3244 of the Act. Pursuant to the Designation Agreement, the Department designated the County as a "sustainable community." Among other things, the designation of the County as a sustainable community eliminates the need for the County to have the Department review and comment on amendments to the Plan that affect areas within the urban growth boundary or "Primary Urban Services District" created by the Plan. The Subject Property. The Subject Property is a parcel of real property located in the Hobe Sound area of unincorporated Martin County. The Subject Property consists of approximately 24.5 acres of land. The land use designation for the Subject Property on the FLUM is General Institutional. The Subject Property is undeveloped, vacant land. It is comprised of sandy soils, native upland scrub habitat with native Sand Pine groundcover. The Subject Property was described in an Executive Summary of the proposed plan amendment considered by the County as follows: The parcel is located in an area considered to be one of the last contiguous large areas of native upland scrub habitat in Florida. Groundcover is almost entirely native Sand Pine with some primitive trails and small areas of disturbed land. Endangered species found on the parcel include the Florida Scrub Jay and Gopher Tortoise. Sand Pine is considered to be endangered, unique or rare and the Comprehensive Plan policy 9- 4.A.7.f(2) states that "Where possible, increased conservation (twenty-five (25) percent of the total upland area) of native upland habitats which are determined to be endangered, unique or rare in Martin County, or regionally rare will be required by Martin County." The Subject Property is bounded on the north by Saturn Avenue, a two-lane residential street; on the south and west by undeveloped land; and on the east by U.S. Highway One, a multi- lane divided highway. The property to the north is designated Low Density Residential; the property to the east is designated for commercial uses; and the property to the south and west is designated General Institutional. While located relatively close to the Intercoastal Waterway, the Subject Property is not located on the "coast." The Subject Property was previously owned by the Hobe Sound Water Company, a privately owned water utility. At the request of Hobe Sound Water Company, the Subject Property was designated as General Institutional. No wells currently are located on the Subject Property. The Subject Property was acquired from the Hobe Sound Water Company by the Land Partnership. The undeveloped land located to the south of the Subject Property is owned by South Martin Regional Utilities (hereinafter referred to as "SMRU") and is utilized for a water plant and wells. SMRU acquired this land and the remainder of the land used by the Hobe Sound Water Company from the water company. There are five wells located on the property to the south of the Subject Property. The property to the west of the Subject Property is also owned by SMRU but is not being utilized for wells. The property acquired by SMRU was, and remains, designated as General Institutional. The Subject Property serves as a significant ground water recharge area because of the porous nature of the soils of the Subject Property. The Subject Property is located within the Primary Urban Services District of the Plan. The Subject Amendment and Its Review. The amendment at issue in this proceeding was initiated by the Land Partnership after it acquired the Subject Property from the Hobe Sound Water Company. At the time of the acquisition of the Subject Property, the Land Partnership knew or should have known that it was designated for General Institutional use. The Land Partnership requested a change in the land use designation for the Subject Property on the FLUM from General Institutional to Low Density Residential or "the most appropriate land use designation." The proposed amendment was reviewed by the staff of the County's Growth Management Department. Among other things, the staff considered whether any of the four items specified in Section 1-11.C.2 of the Plan applies to the amendment. The staff determined that the first and fourth items listed in finding of fact 41 did not apply, that the second item was somewhat applicable, and that the third item applied to the amendment. The proposed amendment was also reviewed by the Treasure Coast Regional Planning Council (hereinafter referred to as the "TCRPC"). Comments concerning the proposed amendment were prepared by the TCRPC, but were withheld because review by the TCRPC is not required due to the sustainable communities designation for the County. The draft comments of the TCRPC, however, raised objections to the proposed amendment due to concerns over the potential endangerment to the wellfields in the area and the potential destruction of critical habitat and vegetation. No copy of the TCRPC's regional plan was offered in evidence in this case. Nor did anyone associated with TCRPC testify about the draft comments. The Department also informally reviewed the proposed amendment. Rather than prepare an Objections, Comments, and Review report on the proposed amendment, the Department prepared informal comments, which it provided to the County. Those comments were responded to by the County. Hearings to consider the proposed amendment were conducted by the Local Planning Agency. On January 21, 1999, the Local Planning Agency voted to recommend that the proposed amendment not be adopted. The proposed amendment was designated Amendment No. 98-3 (hereinafter referred to as the "Amendment"). The Amendment was adopted by the Board on September 28, 1999, as a part of Ordinance No. 553. The evidence failed to prove that any relevant procedure for adopting the Amendment was violated by the County. The Amendment changed the land use designation for the Subject Property from General Institutional to Low Density Residential on the FLUM. This designation would allow the development of the Subject Property for a maximum of 122 residential units. Data and analysis supporting a potential increase of 122 units of additional residential property did not exist when County adopted the Amendment. Nor does such data and analysis exist now. ARDP System Data. Since the implementation of the ARDP System the County has been collecting and analyzing data concerning residential development in the County. No timely annual update of that data and analysis had been prepared prior to the adoption of the Amendment. The most recent data available was from 1995. During the adoption process for the Amendment, at the request of a member of the Board, an ad hoc report containing data and analysis concerning residential development in the County was prepared and presented to the Board. A full and detailed report was prepared subsequent to the adoption of the Amendment. The report, the ARDP Memorandum of June 7, 2000 (hereinafter referred to as the "ARDP Memo"), was reviewed and approved by the Board. The report was also received in evidence during this de novo proceeding and has been fully considered in preparing this Recommended Order. Pursuant to the ARDP Memo for the five-year period 2000-2004, there is a need for 6,252 residential units needed to serve population increases. The 125 percent cap of the ARDP System on new residential units allowed in the County is 7,816 units. This amounts to an additional 1,564 units authorized by the ARDP System over the actual number of units needed based upon population projections. The number of approved/unbuilt units and other offsets against the number of allowed new residential units for the County during this period totals 7,015 units. Consequently, there are 801 units (7,816 minus 7,015) available for development through the end of 2004. These available units are more than sufficient to cover the additional units which may arise as a result of the development of the Subject Property pursuant to the Amendment. For the five-year periods of 2005-2009 and 2010-2014, there are 6,314 and 6,578 units available for development through the end of these periods, respectively. Despite the foregoing, the approval of an addition of 122 units of residential property will increase an already excessive designation of property for residential use. The Impact of the Amendment. The most significant impact of the Amendment is to further increase the amount of land allocated for residential use in the County. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the amount of the increase in the amount of land allocated for residential use in the County. The Amendment will also negatively impact sensitive habitat for endangered species of plants and animals. Development of the Subject Property, however, as Low Density Residential or General Institutional has the potential for the same general negative impact on sensitive habitat. That negative impact is not inconsistent with what the Plan allows. The Amendment will not have a negative impact on the role of the Subject Property as a ground water recharge area or the availability of potable water in the County. Any development of the Subject Property will be subject to County and South Florida Water Management District regulations requiring that there be no effect on the quality or quantity of ground water in and around the Subject Property as a result of development. The only action that will preserve the environmental features of the Subject Property and its role as a recharge area would be to keep the property undeveloped. Neither the current land use designation of General Institutional nor the proposed land use designation of Low Density Residential will ensure that the Subject Property remains undeveloped. An estate density designation, although generally used for urban fringe areas, with a density of 1 or 2 units per acre, would reduce the negative impacts of the environmental features of the Subject Property and its role as a recharge area. The evidence failed to prove that the Amendment constitutes "urban sprawl" as defined in the Plan. The Need for a FLUM Amendment. In order for the Amendment to be approved, since it is an amendment to the FLUM, it must be shown that one of the four items listed in Section 1.11.C.2. of the Plan is met. The evidence proved, and the parties agreed, that the first and fourth items listed in Section 1.11.C.2. of the Plan do not apply to this Amendment. The remaining two items of Section 1.11.C.2. of the Plan are: That the growth in the area, in terms of development of vacant land, redevelopment and availability of public services, has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics; or That the proposed change would correct what would otherwise appear to be an inappropriately assigned land use designation. While there has been an increase in the amount of development to the north of the Subject Property, the area immediately around the Subject Property has not changed. The evidence failed to prove that any change in the character of the area surrounding the Subject Property "has altered the character of the area such that the proposed request is now reasonable and consistent with area land use characteristics. . . ." The second item listed in Section 1.11.C.2. of the Plan has not been met. The County's determination that the remaining item, that the proposed change would correct what appears to be an inappropriately assigned land use designation, is based upon the fact that the current owner, the Land Partnership, is not the type of entity the Plan identifies as an appropriate owner of General Institutional property. Section 4-4.M.1.h. of the Plan provides the following concerning the ownership of General Institutional designated property: Except for investor owner public water and sewer systems and private cemeteries, Institutional land shall be owned by public agencies or non-profit service providers. As a consequence of the foregoing, the only use to which the Land Partnership may put the Subject Property under its current land use classification would be as a cemetery, public water, or sewer system. The latter two uses are not practicable uses for the Subject Property. Although the fact that the Land Partnership knew or should have known of the land use category of the Subject Property and the limitation of the uses to which it could put the property before it purchased it, it still appears reasonable to conclude that the third item of Section 1.11.C.2. of the Plan applies to the Amendment. I. Petitioners' Challenge. On October 28, 1999, the Alliance and Ms. Merrill, jointly filed a Petition for Administrative Hearings with the Division challenging the Amendment pursuant to Section 163.3244(5)(a), Florida Statutes. Petitioners requested a formal administrative hearing pursuant to Sections 163.3187(3)(a) and 120.57, Florida Statutes. On February 1, 2000, Petitioners filed an Amended Petition for Administrative Hearing. Pursuant to the Amended Petition, Petitioners alleged that the Amendment is inconsistent with the requirements of Sections 163.3177 and 163.3180 of the Act, the TCRPC's strategic regional policy plan, and portions of Chapter 9J-5, Florida Administrative Code. Petitioners also alleged in the Amended Petition that the Amendment is inconsistent with Sections 163.3161, 163.3167, 163.3194, and 163.3244 of the Act. These allegations are not relevant to the determination of whether the amendment is "in compliance" as those terms are defined in the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Commission enter a final order finding that the Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 27th day of February, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of February, 2001. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 David A. Acton Senior Assistant County Attorney Martin County Administration Center 2401 South East Monterey Road Stuart, Florida 34996-1197 Raymond W. Royce, Esquire Carrie Beth Baris, Esquire Holland & Knight LLP 625 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401-3208 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of April, 2007.
The Issue The issue in this case is whether the small-scale comprehensive plan amendment adopted by the Town of Pomona Park (Town) through enactment of Ordinance No. 01-7 (the Plan Amendment) is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001).
Findings Of Fact The Town's current Future Land Use Map (FLUM) (Exhibit H) depicts the subject parcel and Petitioner's adjoining parcel as fronting on the western shore of Lake Broward and being within a primarily residential land use area that encompasses most of the Town's land area lying west of Lake Broward and northeast of Highway 17. The parcels immediately to the north and south of the subject parcel and Petitioner's adjoining parcel are in Low Density Residential future land use, which allows densities up to two units per acre; the lake is to the east. The eastern five acres of the 13-acre subject parcel, including the lake frontage, were not included in the amendment; only the western eight acres were changed to Agricultural land use, which allows densities up to one unit per five acres (unless occupied only by the owner's family members, in which case densities up to one unit per acre are allowed). The property owner, Town Council member Barry Fouts, had previously requested to have the entire 13-acre parcel changed to Agricultural land use but withdrew that request. Fouts testified that, in requesting the same change for only eight acres of his parcel, he took into consideration that keeping the request under 10 acres would avoid review by the Department of Community Affairs (DCA). Several parcels near the Fouts parcel, including some of the parcels across the street to the west, are designated for Agricultural future land use. However, those parcels across the street to the west of the subject parcel are actually being used for residential rather than agricultural purposes. The nearest parcel that might be considered to be in actual use for agricultural purposes is a horse farm located approximately one quarter mile to the north. However, the present Town Clerk testified in her capacity as Town zoning officer that a horse farm (or an exotic bird breeding operation) is not to be considered an agricultural use because the animals are not being raised for human consumption. Fouts has voluntarily provided some visual buffering along his property line, but there is no requirement in the Plan Amendment that it be maintained in the future, nor would visual screening be particularly effective in protecting nearby Residential properties against noises and odors produced by some common types of agricultural livestock. The Plan Amendment was not initiated by the Town; rather, it was requested by the subject parcel's owner, Barry Fouts, whose request for a change in land use stated that his purpose was to bring his "established agricultural activities, which include horse and bird breeding" into conformity with "Putnam County [sic] zoning recommendations." Fouts gave no other reasons for wanting the change. The former Town Clerk (and zoning officer) testified that there were no restrictions on keeping any type or number of animals in Residential future land use, that Fouts could engage in horse and bird breeding without changing the future land use or zoning, and that there was no need for the land use change. No survey, study, or analysis of the Plan Amendment is reflected anywhere in the Town's files relating to the Plan Amendment, and it is found that there were none. When the Plan Amendment was presented to the Town Council for consideration, all that the former Town Clerk and present Town Clerk presented to the Town Council was a one-page note prepared by the former Town Clerk relating Fouts' desire to continue with his agricultural activities, including horse and bird breeding. At final hearing (with the assistance of leading questions on cross-examination by the Town's attorney), the present Town Clerk and former Town Clerk testified that, notwithstanding the absence of any written survey, study, or analysis, they made a site visit and recalled reviewing the Plan Amendment in relation to the Town's Comprehensive Plan, including the FLUM, as well as analyzing and considering the need for more agricultural land use within the Town's municipal boundaries and the desirability of keeping residential development and septic tanks away from the lake, in arriving at a recommendation to approve the land use change. Regardless whether any such analyses actually occurred by the time of adoption of the Plan Amendment, they clearly were presented as part of the evidence at final hearing. The analysis presented at final hearing that the Town's Comprehensive Plan calls for more land area to be designated for Agricultural future land use was based on an erroneous reading of the Comprehensive Plan adopted by the Town in 1991. The analysis presumed that, under the plan, 1220.3 acres of agricultural land use was "desired" (compared to less that 600 acres in actual agricultural use in 2001). This presumption was based on parenthetical references to 1220.3 acres next to the word "Agricultural" in two places in the plan. But it is clear from a fair reading of the plan that, in designating Agricultural future land use, the plan transferred all 648.6 acres in the "Vacant or Undeveloped" existing land use category to the Agricultural future land use category "for lack of a better land use designation," in addition to the 571.7 acres of existing agricultural land use, for a total of 1220.3 acres. (Other future land use designations mirrored 1991 existing land use.) There was no intention to indicate a need for 1220 acres of agricultural land use in the Town. To the contrary, the plan projected a need for 170 additional housing units through 2001 and stated that "[m]ost of the Town's . . . agricultural and vacant/undeveloped land is suitable for development." Consistent with that, the evidence showed that in the vicinity of the subject parcel most if not all of the parcels designated for Agricultural land use are actually being used for residential purposes and not for agriculture. If anything, it would seem that in 1991 the Comprehensive Plan anticipated a need to designate more acreage for Residential future land use and less for Agricultural. Even if the Comprehensive Plan reflected a perceived need for 1220 acres of actual agricultural use, 1220 acres already is designated for Agricultural future land use, and no reason was given for designating additional acreage for the category. Finally, this part of the Town's analysis makes no sense in light of the undisputed testimony of the Town Clerk, as zoning officer, that "agricultural use" consists of the raising of plants or animals for human consumption. The evidence was clear that the horses, cows, and exotic birds on the Fouts property are not for human consumption. It was not clear from the evidence what the 15-20 chickens on the Fouts property are used for. The analysis that the Plan Amendment was to protect Lake Broward from septic tanks associated with residential land use also is shallow and faulty. While it is true that allowable development densities are lower in the Agricultural future land use category, the five acres of the Fouts parcel that were nearest the lake were not included in the amendment but remained in Residential future land use. Second, the present Town Clerk testified that there never have been any negative effects on the lake from septic tanks, which are regulated, whereas she had no way of knowing whether the unregulated effects of agricultural runoff might be worse than any effects from septic tanks. Objective A.1.1 provides that the Town "shall coordinate future land uses with . . . adjacent land uses, . . . through implementing the following policies . . ..". In this case, the immediately adjacent land uses are designated on the FLUM as Residential, and most if not all of the nearby parcels that are designated Agricultural are actually being used for residential purposes. But Petitioner did not allege that the Plan Amendment was inconsistent with any of the policies listed under Objective A.1.1, and the evidence did not prove any such inconsistencies. Policy A.1.3.2 requires that the Town's Subdivision and Zoning Code shall require buffering and separation between land uses of different densities or intensities of use sufficient to ensure compatibility between uses and also requires the elimination of non-conforming land uses. In this case, the Plan Amendment did not provide for separation or buffering between the newly designated Agricultural future land use and the directly adjoining Residential properties, but neither did it have any effect on the Policy requiring the Town's Subdivision and Zoning Code to require such buffering and separation. Policy A.1.9.3.C.1 provides in pertinent part: "Residential land use is intended to be used primarily for housing and shall be protected from intrusion by land uses that are incompatible with residential density." The Plan Amendment intrudes a small area of Agricultural future land use into an area that is primarily designated for Residential land use and that is in actuality almost exclusively used for residential purposes. The sounds and smells associated with at least some types of agricultural activity, such as the pasturing and raising of livestock and poultry, are capable of adversely affecting nearby residents and are incompatible with residential land use. Policy A.1.9.3.C.4 provides in pertinent part: "Agricultural land is intended to be used primarily for pasture, grove operations or silviculture with possibly some row crops." In this case, the evidence shows that the primary purpose of the Plan Amendment was to allow the landowner to breed horses and operate an exotic bird breeding facility. The Town Clerk, as zoning officer, has taken the position that those activities do not fit within the definition of agriculture. But the Plan Amendment itself is not inconsistent with this Policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding that the Town's small-scale amendment adopted by Ordinance No. 01-7 is not "in compliance." DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2002. COPIES FURNISHED: James L. Padgett, Esquire 3 North Summit Street Crescent City, Florida 32112-2505 Michael W. Woodward, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 323999-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue Ultimately at issue in this case is whether certain comprehensive plan amendments, adopted by Lee County Ordinance No. 94-30, are "in compliance" with Chapter 163, Part II, Florida Statutes. As reflected in the Preliminary Statement, many of the subordinate issues raised by parties seeking to have the plan amendments found to be "not in compliance" have been withdrawn, and others have been stricken as not timely raised or for other reasons. The remaining issues are addressed in this Recommended Order.
Findings Of Fact The FLUM and the Overlay. Lee County adopted its first Comprehensive Plan with a land use map in 1984. On January 31, 1989, the County adopted an amended version of the 1984 Plan intended to plan for growth up to the year 2010 and to comply with the 1985 Growth Management Act requirements. Essentially, the 1989 Plan was very similar to that drafted in 1984. Some major differences were provision of development timing and concurrency, creation of the privately-funded infrastructure overlay, elimination of the fringe land use category, and a variety of other new goals, objectives, and policies (GOP's). Most of the land use categories in the 1984 Plan were carried forward to the 1989 Plan. Almost all of the land use categories are mixed land use categories that allow residential, commercial and in some cases also light industrial uses without any percentage distributions or other objective measurements of distribution among uses. The DCA took the position that the 1989 Lee Plan was not in compliance with the Growth Management Act and filed a petition under Section 163.3184(10). The Department's objection to the 1989 Plan flowed in large part from the alleged overallocation of land for development by the year 2010 that resulted from the categories in the future land use map series (FLUM). Using the County's data and analysis, the DCA concluded that the 1989 map provided for 70 years of growth, to the year 2060, instead of 20 years, to the year 2010. To resolve the 1989 Plan dispute, the County agreed to adopt a 2010 Overlay and create a Density Reduction/Groundwater Resource future land use (FLUE) category (DRGR). The 1989 Plan Compliance Agreement included the following provisions: Amend the Future Land Use Map series by designating the proposed distribution, extent, and location of the generalized land uses required by Rule 9J-5.006(4)(a)1.-9. for the year 2010. These designations will include acreage totals and percentage distributions (illustrated by a bar graph) for about 125 discrete sub-districts encompassing all of Lee County, which, once designated, shall be changed only by a formal amendment to the Lee Plan. The data for these designations shall be consistent with the Lee Plan's population pro- jections for the year 2010. This amendment shall be accomplished by the adoption of over- lay or sub-district maps for the entire County using the concepts developed therefor by Thomas H. Roberts of Thomas H. Roberts Associates and presented publicly to the Board of County Commissioners of Lee County on September 12, 1989, and to the Department of Community Affairs on September 22, 1989. Adopt a policy which will provide that no development approvals for any land use category will be issued in any of the sub- districts described above that would cause the acreage total set for that land use category in 2010 to be exceeded. In accordance with the 1989 Plan Compliance Agreement, the County created a 2010 Overlay. The County first projected future growth in Lee County to the year 2010, using a basic assumption that historic patterns of growth in Lee County, including historic densities, would continue. The County's 2010 population estimate was 757,370 for the entire unincorporated County. The County then assigned acreage allocations for different land uses allowed in each planning subdistrict. In accordance with the 1989 Plan Compliance Agreement, the County adopted the resulting 2010 Overlay, as well as a DRGR FLUE category with a density range of one unit per ten acres, as part of the 1990 remedial plan amendments. The Overlay consisted of Maps 16 and 17, which were added to the FLUM, along with implementing policies in the Future Land Use Element. The 2010 Overlay is, in the words of the 1994 Codification of the Plan, "an integral part of the Future Land Use Map series." Map 16 is a map which divides Lee County into 115 subdistricts. "Map" 17 is not a true map; it is a series of bar tables and pie charts that correspond to acreage allocations for land uses within the subdistricts. Each subdistrict is allocated a specific number of acres for each of the following land uses: residential, commercial, industrial, parks and public, active agriculture, conservation, passive agriculture and vacant. The land use acreage allocations for each Overlay subdistrict are the maximum amount of land which can be developed in that subdistrict. The intent of the 2010 Overlay was to match the amount of development that could be accommodated by the 2010 FLUM with the projected County-wide population for the year 2010. The 2010 Overlay accomplished this in part by assigning percentage distributions, in the form of acreage allocations, to the various uses in the many mixed use categories in the FLUM. Under the Overlay, once the acreage allocation for a particular land use is exhausted, no more acreage can be developed for that land use in that subdistrict unless the Lee Plan is amended. Policy 1.7.6 was adopted to establish an ongoing mandatory review procedure for evaluation and amendment of the 2010 Overlay. On September 6 and 12, 1990, Lee County adopted the 1990 Remedial Plan Amendments and officially revised the original data and analysis supporting the Plan. As the support documents for the 1990 remedial amendments stated: The future land use map series currently contained in the Future Land Use element of the Lee Plan depicts 18 land use categories and has an estimated 70-year population holding capacity. A future land use map series is re- quired by state law and is also a useful and necessary part of the plan in guiding land use and related decisions. The Year 2010 Overlay makes this map series even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon. * * * In addition to this "pure planning" function of the 2010 Overlay, a regulatory function will be added. No final development orders or building permits for any land use category will be issued in any subdistrict that would cause the acreage total for that category in 2010 to be exceeded. The Dwelling Unit Counts and Projections charts in the support documents for the 1990 amendments demonstrate that the 2010 Overlay was designed to greatly limit the number of dwelling units that could be constructed by 2010 compared to the number allowed by the 2010 FLUM without the Overlay. On or about October 29, 1990, DCA published a Notice of Intent to find the 1990 Remedial Plan Amendments in compliance. However, a citizen challenge to the County's 1990 Remedial Plan Amendments resulted in an Administration Commission Final Order that the amendments were not in compliance and that the County had to take certain remedial actions to bring the Plan amendments into compliance. Final Order, Sheridan v. Lee Co. and DCA, 16 FALR 654 (Fla. Admin. Com. 1994)(the "Sheridan Final Order"). The Sheridan Final Order required the County to apply the 2010 Overlay at the development order stage, rather than at the building permit stage. As a result, no development order could be issued which caused the acreage allocations for any given individual subdistrict to be exceeded. The Sheridan Final Order also held that the County had not properly calculated the amount of development allowed by the 2010 Overlay and adopted the following analysis from the hearing officer's Recommended Order: The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities some- where between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. * * * The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population, and consider the extent of the overallocation in the light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. Sheridan Final Order, 16 FALR at 689. As a result, one of the remedial amendments required by the Administration Commission was: To address the density calculation issue the County shall revise the data and analysis to include the maximum allowable densities in determining the amount of development allowed by the 2010 overlay and to show that the amount of development allowed is based on the expected growth. Sheridan Final Order, 16 FALR at 661. The County adopted 2010 Overlay remedial amendments in October, 1994. In December, 1994, the DCA determined that the remedial amendments were in compliance. (The revised data and analysis were not made a part of the record in this case.) On July 1, 1994, the County adopted an Evaluation and Appraisal Report (EAR) for its Plan and subsequently submitted to the DCA the EAR, along with the proposed EAR-based amendments for the year 2020. Among other things, the proposed EAR-based amendments eliminated the 2010 Overlay. Among other things, the DCA's Objections, Recommendations and Comments (ORC) Report objected to the elimination of the 2010 Overlay, taking the position that, without the Overlay, the EAR-based plan had the same allocation-related problems that had been in the 1989 plan. On November 1, 1994, the County adopted a modified version of the EAR- based amendments--still without any Overlay--and submitted these to the DCA, together with its staff response to the DCA's ORC Report. On December 28, 1994, the DCA issued a Statement of Intent to find the EAR-based amendments not in compliance. FLUM Population Accommodation Data and Analysis. The evidence in this case includes data and several different analyses comparing the population accommodated by the plan amendments at issue--i.e., the FLUM without any Overlay--with the population projected for the year 2020. Figure 14. Lee County's proposed population accommodation data and analysis is included in the EAR in Figure 14. Based on Figure 14, the County concluded that the 2020 FLUM accommodates 802,655 persons, or 128 percent of the projected 2020 population (an accommodation ratio of 1.28). Although the FLUM's many mixed use categories do not establish percentage distributions or other objective measurements of distribution among uses, Figure 14 assumes that certain percentages of the many mixed use categories will develop in residential use, based on historic growth patterns. Also based on historic growth patterns, Figure 14 assumes that residential density will be less than the maximum of the standard residential density range allowed in each category although the GOP's allow residential development at much higher densities. Since Figure 14 is based on historic patterns of growth that are expected to continue into the future, Figure 14 appears to predict future growth as accurately as is possible at this time. It probably is the best possible estimate of how Lee County will build out under the proposed amendments. However, the ability to make truely accurate predictions over such a long period of time--25 years--is questionable. Figure 14 assumes that only a fraction of the new Vested Community land use district (Lehigh Acres) will be developed by the end of the planning timeframe. Most of the Vested Community district consists of subdivisions which were approved and platted several years before the adoption of the earliest Lee Plan, and which are vested from the restrictions of the Lee Plan. The Vested Community district contains over 130,000 vested lots which can accommodate at least 271,700 residents. In addition, the Vested Community district contains some land which is not actually vested from the Lee Plan but is allowed to develop at four density units per acre (du/ac). Figure 14 assumes that 45,888 residential units accommodating 95,906 persons will be developed in Lehigh Acres by 2020. There is no goal, objective or policy in the Lee Plan which would prevent the development of more lots vested or allocated in the Vested Community district. Lee County's Figure 14 analysis assumed that the Rural and Outer Islands categories will develop at their maximum residential density of one du/ac. In fact, the Lee Plan includes a Planned Development District Option ("PDDO") which allows: landowners outside the Future Urban Areas to increase allowable densities for development that will be totally independent of county- subsidized facilities and services. (Objective 1.8) The PDDO increases the maximum theoretical residential density of the Rural and Outer Islands districts from 1 du/ac to 6 du/ac. However, due the requirements for use of the PDDO, realistically it cannot be anticipated that much Rural or Outer Islands land will utilize it. Lee County's Figure 14 analysis did not include any residential allocation for the General Interchange category. The General Interchange category allows residential development of 100 residential units at 8 du/ac for every 100,000 square feet of commercial development. If the residential option applied to all 1,436 acres of the General Interchange category, the Lee Plan would accommodate another 13,209 persons in that category. However, for the residential option, the category requires 160 acres under common ownership. Currently, there is only one case in which the requirement is met, and it is a development of regional impact (DRI) that does not allow residential at this time. Figure 14A. Figure 14A is part of the County's response to the DCA's ORC report. It was supposed to adjust Figure 14 by assuming the maximum residential density allowed by each land use category in accordance with the Sheridan Final Order. The Figure 14A accommodated population rises to 1,325,568, and the so-called allocation ratio rises to 2.11. Actually, Figure 14A does not take into account the actual maximum residential density in Intensive Development (22 du/ac), Central Urban (15 du/ac), and Urban Community (10 du/ac). Instead, it uses the top of the "standard density range" in those categories. Figure 14 B. Figure 14B also is part of the County's response to the DCA's ORC report. It adjusts the Figure 14A analysis by estimating the total residential development allowed by the Vested Community category at 170,732 dwelling units, which will accommodate 356,829 persons. Adding those Vested Community numbers to the Figure 14A numbers, Figure 14B estimates the population accommodated by the 2020 FLUM as 1,586,491 persons, or an accommodation ratio of 2.53. Maximum Theoretical Residential Potential. The DCA proposes an analysis of the data using maximum theoretical residential potential for each land use category. Under the DCA analysis, there is enough land available for residential development accommodate a population of approximately 2.5 million people--401 percent of the expected County population in 2020 or, expressed as a ratio, 4.01. In contrast to Figure 14B, the DCA's preferred analysis takes into account all of the residential development capacity in Lehigh Acres. In addition, it assumes residential development in the Vested Intensive Development part of the Lehigh Vested Community at the maximum density of 14 du/ac and in the Vested Central Urban part at the maximum density of 10 du/ac. These assumptions add to the FLUM population accommodation analysis the capacity to accommodate approximately 246,000 more people, over and above the Figure 14B capacity. The DCA's preferred analysis also assumes that all Rural and Outer Islands land will utilize PDDO and develop residentially at 6 du/ac. Use of this assumption more than doubles the population accommodation in those categories, adding approximately 500,000 people to the analysis. While theoretically possible, as previously stated, this assumption is unrealistic. The DCA's preferred analysis also assumes that 13,209 people are accommodated in residential development in the General Interchange category. This assumption, too, is theoretically possible but not realistic. Finally, the DCA's preferred analysis assumes that, although most of Lee County's future land use categories allow a mix of uses, the land will develop at the maximum potential residential densities over the entire land area--i.e., that no other type of permitted use, such as commercial, parks, schools or even roads would occur in any of the land use categories. Finally, it disregards the actual existence of non-residential uses and residential uses at lower densities; instead, it assumes redevelopment at the maximum potential residential densities over the entire land area. County's 2010 Overlay Analysis. It seems obvious that deletion of the 2010 Overlay must increase population accommodation, at least up to the year 2010. Up to the time of the final hearing, the DCA had not requested, and no party did, an allocation ratio analysis of the 2010 Overlay similar to the one the DCA prefers for the 2020 FLUM without any Overlay for purposes of making a comparison between the two. The County's chief planner testified that he performed such an analysis during the course of the final hearing using the maximum residential and maximum density assumptions. Neither the details nor the results of the analysis were clear. However, it appears to indicate that the 2010 Overlay accommodated a 2010 population of 1.06 million, apparently including 282,000 assumed to be accommodated in Lehigh Acres, an allocation ratio of 2.11. Assuming that the County's 2010 Overlay analysis included Lehigh, it can be roughly compared to the Figure 14B analysis and the DCA's preferred "maximum theoretical residential potential" analysis by removing the Lehigh component from each. Subtracting the Lehigh component from the County's 2010 Overlay population accommodation analysis results in a 2010 population accommodation of 778,000. Removing the Lehigh component from Figure 14B results in 2020 population accommodation of 1,229,662. Removing the Lehigh component from the DCA's analysis results in 2020 population accommodation of 2,008,927. Meanwhile, the County's projection of future increased by only about 70,000 between 2010 and 2020 for the entire unincorporated county. RGMC Alternative 2010 Overlay Accommodation Analysis and Comparision. RGMC proposes its own alternative analysis for comparing the population accommodated under the 2010 Overlay to the population accommodated without it. Using the County's population projection for 2020 of 626,860 in the unincorporated county and the accepted 2.09 people per unit, it can be estimated that approximately 300,000 units will be needed in the year 2020. Subtracting the 127,000 units existing in 1990, approximately 173,000 additional units will be needed over the 30 years from 1990 to 2020 to accommodate the expected population, or approximately 5,800 additional units per year. At that average rate, 116,000 units would be added by the year 2010 (5,800 units per year times 20 years). Adding the new units to the 127,000 units existing in 1990 results in a total of approximately 244,000 units in 2010. Since it is agreed that the Overlay was designed to accommodate, and accommodated, approximately the population expected in the year 2010, it can be estimated that the Overlay accommodated approximately 244,000 units. In the sense that all units accommodated under the 2020 FLUM without the Overlay are available for development before 2010, a rough comparison can be made between the population accommodated under the 2010 Overlay and the population accommodated according to the other analysis methodologies: according to Figure 14, the amended 2020 plan accommodates 384,045 units for the year 2020; according to Figure 14A, the amended 2020 plan accommodates 634,243 units for the year 2020; according to Figure 14B, the amended 2020 plan accommodates 759,086 units for the year 2020; and according to the DCA's preferred "maximum theoretical residential potential" methodology, the amended 2020 plan accommodates 1,201,973 units for the year 2020. Calculation and Use of the "Allocation Ratio". The technique of determining a residential density allocation ratio was described in an article entitled "Expanding the Overallocation of Land Use Categories," which appears in a June, 1995, publication of the Department of Community Affairs called "Community Planning." "Community Planning" is published by the Department of Community Affairs "to provide technical assistance to Florida's counties and cities and implement any requirements of Florida's growth management laws." The article announces how the Department reviews the question of "overallocation" in determining whether a plan is in compliance with statutory and rule requirements regarding urban sprawl. According to the article, the Department suggests that a comprehensive plan should allocate up to 125 percent of the amount of land needed to accommodate the projected future population. The article does not explain how the "allocation ratio" should be calculated. The Sheridan Final Order seems to say that maximum densities should be assumed. See Finding 11, above. But neither the "Community Planning" article nor the Sheridan Final Order indicate what other assumptions should be made. The "Community Planning" article and the Sheridan Final Order also do not specify whether, in calculating the allocation ratio, population accommodation capacity should be compared to the total expected population or to the incremental growth expected in the population. The DCA has accepted a 1.25 allocation ratio applied to the total expected population as being reasonable. A major treatise in this area known as Urban Land Use Planning, Fourth Edition, by Kaiser, Godchalk, and Chapin, suggests that an allocation ratio of up to 2.05 can be considered reasonable; however, when doing so, the authors were evaluating plans with a closer planning horizon (one to five years), and they were comparing the population accommodation capacity to the incremental growth expected in the population. When calculating an allocation ratio for a 20-year planning horizon, they suggest that a 1.20 allocation ratio that compares population accommodation capacity to the incremental growth expected in the population would be reasonable. By accepting a 1.25 allocation ratio that compares the population accommodation capacity to the total population expected on a 25-year planning horizon, the DCA seems to have been misapplying the allocation ratio analysis. Clearly, an accommodation ratio comparing the population accommodation capacity to the incremental growth expected in the population would be much than one comparing to to the total population expected. There was no data and analysis as to exactly how much higher, and it is difficult to say based on the record in this case. However, an example of the difference between the too methodologies is suggested by one of RGMC's alternative analyses. It is known that approximately 300,000 units of residential development will be needed for the population expected in the year 2020. See Finding 36, above. The evidence was that there were approximately 143,000 units existing in 1995, so approximately 157,000 additional units will be needed by the year 2020 to accommodate the expected population. Meanwhile, using the County's Figure 14 assumptions, the FLUM without the Overlay makes 384,045 units available for development by the year 2020, or an accommodation of an additional 241,045 units over what was in existence in 1995. Comparing incremental accommodation for growth to the incremental population growth expected by the year 2020 would result in an "accommodation ratio" of approximately 1.54, versus the ratio of 1.28 calculated in Figure 14 comparing to total population expected. By way of further examples, using the same method of comparison: Figure 14A's 2.11 "accommodation ratio" would become a ratio of 3.13, comparing incremental accommodation for growth to the incremental population growth expected by the year 2020; Figure 14B's 2.53 "accommodation ratio" would become a ratio of 3.92; and the DCA's "accommodation ratio" of 4.01 would become a ratio of 6.75. It should be noted that the Urban Land Use Planning treatise also speaks of the use of the allocation ratio as a safety factor to provide a choice of location for housing type and to avoid artificially increasing land and housing prices. Rather than being a device merely to avoid the overallocation of land, the safety factor also is said to be necessary to ensure that enough land is allocated and that the limitations of forecasting approaches do not exacerbate the need for affordable housing. It also should be noted that neither the "Community Planning" article nor the Sheridan Final Order specify that allocation and urban sprawl issues should be determined from the simple calculation of a residential density allocation. To the contrary, the Sheridan Final Order would indicate that, once the allocation ratio is obtained, full consideration should be given to all pertinent factors "in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis." Analyses Not Conducted. The plan amendments do not only eliminate the 2010 Overlay. They also decline to retain the Overlay concept and extend it another ten years to the year 2020. There is no data or analysis in this case comparing the population accommodated by the FLUM without any Overlay to the population that would be accommodated in the year 2020 if the Overlay were extended another ten years to 2020. Such data and analysis would most clearly illuminate the impact of eliminating the 2010 Overlay, and abandoning the Overlay concept, on the residential allocation of the plan for the year 2020. There may be tens of thousands of, up to perhaps almost a hundred thousand, residential units in DRI's that have been approved but not yet built. There was inadequate data and analysis of how many of the residential units that will be needed by the year 2020 can be supplied in these DRI's. Lehigh Acres. Clearly, Lehigh Acres presents a special problem for Lee County and the DCA. Lehigh Acres was platted in the 1950s and 1960s. It covers approximately 97 square miles, which is slightly more than 62,000 acres. Since its inception, Lehigh has had all the attributes of urban sprawl. It is a large, sprawling, almost entirely residential community that was created in an area remote from urban services. It is characterized by grid patterns of development, a poorly-designed transportation network with large numbers of small local roads and no four-lane roads, huge amounts of land allocated to residential development and a relatively small amount of land allocated to commercial development. The roads in Lehigh are built. Virtually all of Lehigh has been subdivided into relatively small single family residential homesites, and almost all of these homesites have been sold to buyers all over the world. By virtue of the platting and sale of the land into homesites, Lehigh is a vested community. Over the years, the County has considered a number of potential solutions to the Lehigh Acres dilemma. Ultimately, the County decided to take a multi-pronged approach: (1) creating restrictions on additional subdivision and attempting to reduce densities to no more than four units per acre; (2) continuing the privately-funded infrastructure overlay as the means of providing infrastructure in Lehigh; and (3) utilizing sector planning to work toward a better transportation system and larger areas of commercial allocation to create a more balanced community. Based on the new treatment of Lehigh Acres, the County engaged in different assumptions about how Lehigh will build out. In 1989, Lehigh was shown as "central urban" and "urban community," together with the rest of the Lee Plan future land use categories. Under the 2010 Overlay, the County purported to reduce acreage allocations in Lehigh, but in fact there was little impact on residential potential due to vesting. In the EAR-based amendments, Lehigh is shown under "Vested Community," a separate land use category. Through the vested community category, the County attempted to restrict additional subdividing of lots and, with a few limited exceptions, set a maximum density of four units per acre. Based on the different treatment of Lehigh in the Plan, the County projected a population for Lehigh based on the amount of growth actually expected to occur by Year 2020. To do this, the County utilized eight different methodologies and averaged the projections to come up with a 2010 population for Lehigh of 95,906. These assumptions are reflected in the County's Figures 14 and 14A. Neither the Department's rules nor the "Community Planning" article provide specific guidance as to how vested areas are to be treated in making a calculation of a plan's "allocation ratio." The vast area of Lehigh has the capacity to absorb virtually all the anticipated future population growth in unincorporated Lee County through the year 2020. In fact, it may be appropriate for Lee County to increase overall density in Lehigh if necessary to support the infrastructure and transportation needed to convert Lehigh Acres into a more balanced, multi-use development. Lee County's approach to Lehigh essentially was to attempt to satisfy the Department's desire for an acceptable "allocation ratio" by estimating how many residents will actually live in Lehigh by 2020, assuming the Plan's treatment of Lehigh, and treating those estimates as Lehigh's population accommodation. By studying historic rates of growth, the Lee Planning Division believes that number will be approximately 96,000 people. No evidence was presented by the Department or any intervenor in contradiction of this estimate. The results of the County's approach to Lehigh are reflected in the County's Figures 14 and 14A. Another approach would be to attempt to reduce residential development in other parts of the County. It would be poor planning to reduce densities "across the board" throughout the County just to achieve a lower allocation ratio. Such an approach could direct population concentration away from urban areas into poorly-served rural areas, thereby discouraging the efficient use of land and encouraging sprawling uses. Depending on the densities, it could direct growth to remote areas of the county. Additionally, if Lee County attemped to limit residential growth based on incorrect assumptions regarding future densities, it could seriously underallocate land uses. Underallocation can greatly inflate land costs to the detriment of the general public. On the other hand, a better approach might be to couple sector planning in Lehigh with a reduction in densities in certain other parts of the County. If successful, such an approach could both create more balanced development in Lehigh Acres and direct future growth to Lehigh and away from coastal high hazard areas (CHHA), DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Commercial Allocations. The 2020 Lee Plan, without the 2010 Overlay, has some guidance for the location of commercial development, especially retail commercial. But it does not have percentage distributions or other objective measurement of the distribution of commercial and other uses allowed in its many mixed land use districts. Policy 6.1.2 of the 2020 Lee Plan consists of site location criteria which apply to retail commercial development, such as shopping centers, restaurants, gas stations, and other commercial development generating large volumes of traffic. Non-retail commercial development, such as office, hotel and motel or wholesale commercial development, may be developed at the identified intersections or anywhere else in the land use categories which allow commercial development. Even retail commercial can be developed at locations which do not meet the location criteria under discretion granted to the Board of County Commissioners. According to Lee County's EAR, the Commercial Site Locations Standards Map (Map 16) identifies 52 full intersections and 15 half-moon intersections which comply with the site location standards for Community Commercial and Neighborhood Commercial. They represent 9,520 acres of land designated for retail commercial development. Using the standard planning conversion rate of 10,000 square feet per acre, average, there is room for approximately 95,000,000 square feet of commercial development in the commercial sites depicted on Map There also may be other intersections which meet the criteria for Community Commercial or Neighborhood Commercial but are not shown on Map 16. In addition, there are numerous intersections which meet the criteria for Minor Commercial which are not shown on Map 16. Map 16 also does not include Regional Commercial development. The report by Thomas H. Roberts & Associates on Commercial Land Use Needs In Lee County (Jan. 10, 1987), indicates that the retail space ratio in Lee County is 26 square feet per capita. Just counting the 95,000,000 square feet of retail commercial development allowed in the land shown on Map 16, the 2020 Lee Plan has enough retail commercial capacity to accommodate 3.7 million people. Without even considering the non-retail commercial uses that can be developed at any location in the several land use districts which allow commercial uses, or the unknown amount of retail commercial that can be developed at the numerous intersections which meet the Minor Commercial location criteria, the 2020 Lee Plan without the 2010 Overlay allows commercial development far in excess of the amount needed to accommodate the projected 2020 population. Industrial Allocation Policy 7.1.4 in the 2020 Lee Plan provides: The [FLUM] shall designate a sufficient quantity of land to accommodate industrial development that will employ 3 percent of the county's population in manufacturing activities by the year 2010. The 2020 FLUM, without the 2010 Overlay, designates 6,062 acres in the Industrial Development category. Three percent of the 2020 County population represents approximately 19,000 people. The 1984 Roberts industrial land analysis for Lee County suggested a ratio of seven industrial workers per acre for industrial related activities. Most industrial land uses employ more workers per acre, and the national average is about 17 employees per acre. But even using the ratio suggested by the Roberts analysis, Lee County would need only approximately 3,000 acres of industrial land to accommodate three percent of the 2020 County population in industrial employment. Analysis in the EAR indicates that enough additional industrial land is needed to serve the needs of municipal populations that probably cannot or will not be supplied within the cities themselves and that this additional land accounts for the apparent excess in industrial lands allocated in the county. However, it is not clear from the data and analysis how this determination was made. In addition, light industrial development is permitted in several other mixed land use categories. For example, the existing approximately 2,800 acres of Airport Commerce (AC) located to the northwest of the airport is intended to include light industrial activities. There was no data or analysis as to how much additional industrial use will be made of land in those categories. There are no percentage distributions or other objective measurements of the distribution of land uses in the mixed land use districts that allow light industrial use. The Mixed Land Use Districts. As has been seen, the Lee Plan without any Overlay makes extensive use of mixed land use districts without percentage distributions or other objective measurements of distribution among uses. Much of the dispute between the parties as to residential accommodation and allocations of land for commercial and industrial uses results from the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use categories. Although the County predicts development of only a percentage of these districts as residential, it remains possible for much larger percentages to be developed residential. On the other hand, it is possible for practically all of mixed land use districts to develop commercially or even industrially. The 2010 Overlay attempted to address the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use districts by limiting the acreage that could be developed in particular uses by the year 2010. Without the Overlay concept, no percentage distributions or other objective measurements of distribution among uses remain in the plan. Because of the plan's extensive use of mixed use districts, the County's ability to control development through the plan is seriously undermined. Other Urban Sprawl Considerations. Unincorporated Lee County contains approximately 685 square miles. Lehigh Acres and the DRGR areas, combined, are approximately 199 more square miles, 29 percent of the total area of unincorporated Lee County. Except for the growth that will occur in the Vested Community of Lehigh, much of the future growth in Lee County will occur in the I-75, U.S. 41 corridor, which is oriented in a generally North-South direction and contains most of the urbanized areas of the County, including the City of Fort Myers. Because this area is already largely urbanized, most of the growth in it will result in either the expansion of existing urbanized areas or in-fill between existing urban areas. Certificated water and sewer franchise areas also generally coincide with the north/south urban core in which growth is expected to continue. The presence of water and sewer franchise areas in the north/south urban core and in Lehigh Acres encourages utilization of these areas through the ability to provide urban services. The absence of water and sewer franchise areas in other portions of the County will act as a hindrance to development in areas which are undeveloped and either in conservation or agricultural use. A review of County DRI approvals, together with approved development orders, also appears to indicate a trend toward development in the north/south core. The absence of development orders in most of the outlying areas, indicated as either agricultural, vacant, or conservation use, indicate that probably relatively little growth will occur in those areas. Platted subdivisions also appear to show a trend toward development in the north/south urban core. In general, there also appears to be a correlation between existing land uses and those factors which can reasonably be expected to establish future growth trends in the north/south urban core. Growth in the north/south I-75, U.S. 41 corridor across the county line to the south in Collier County tends to encourage similar growth at the southern end of Lee County. Meanwhile, there are hindrances to development across the county line to the east and southeast by virtue of the presence of agricultural lands and regional wetland systems such as the Corkscrew Swamp and the Everglades. The County has also made use of sector planning. The County's sector plans represent extensive and detailed planning studies which in many cases are reflected in both the FLUM and the policies in the Plan. However, currently there is no sector plan for Lehigh Acres. Policy 1.5.5, creating the Vested Community category for Lehigh, states a sector plan for Lehigh will be developed beginning in 1996. In terms of land uses, the Plan seems to be fairly well functionally related, both in terms of what is shown on the FLUM and the relation between the FLUM and the Plan policies themselves. A good example of this is the commercial site location standards, which establish a strong functional relationship between transportation and regional commercial facilities. There is also a good functional relationship between existing land uses. The Plan mixed use categories appear to recognize and attempt to encourage sound functional relationships between home, work, and shopping. The Plan also has compatibility standards that help maintain functional relationships. However, without the Overlay, the many mixed use categories in the Plan do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts. In terms of land use suitability, the County generally appears to be designating for development those areas which are most suitable for development. However, because it allows development of all kinds throughout the County in excess of what is needed by 2020, the Plan allows development in less suitable areas. A variety of methodologies and assumptions leads to the conclusion that the Lee Plan generally is an urban development plan, not a rural development plan. For instance, under the Figure 14 methodology, 80 percent of the population is directed toward urban land uses, and 12 percent into rural. Under Figure 14B, which unrealistically assumes that all of Lehigh Acres will be built out within the planning time frame, 90 percent of the population is directed to urban areas, and only 10 percent to rural. Even assuming that 100 percent of the land will be used for residential purposes, and that all of Lehigh will build out within the planning time frame, 92 percent is directed to urban areas, and only 8 percent to rural. Finally, even assuming 100 percent of the land to residential at maximum densities, and also that all rural land uses will use the PDDO option at six units per acre, only 4 percent of the population will be directed to rural areas in the FLUM. Notwithstanding the overall patterns of growth in Lee County, it clearly is indicated in the Sheridan Final Order that land in Lee County historically has been used inefficiently and that, without the Overlay, the plan allows inefficiency to continue unabated. This is due in large part to the extensive use of mixed land use categories that do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts, together with the overallocation of land that also results in part from their use. By comparing the FLUM's since 1984 with the current Existing Land Use Map (ELUM) (Lee 56), it is apparent that rural designations have not preserved agriculture. Significant parts of county that have been designated rural since 1984 actually have been developed residential or non-agricultural use. In Range (R) 25 East (E), Township (T) 45 South(S), Sections 31 and 32 are residential, while 33 is a golf course. Similarly, R 25 E, T 47 S, Sections 14, 15 and 23 have developed significantly residential and part of Section 14 is now designated Outlying Suburban. In addition, significant residential development has occurred in areas of Pine Island that have been designated rural since 1984. On the other side of the coin, much of the "New Community" still is in rural use (R 35 E, T 45 S, Sections 1, 2, 3, parts of 10, 11, and 12; R 26 E, Sectons 5-8, 17 and 18.) Some "Industrial Development" land is actually still in rural use or vacant--R 25 E, T 46 S, Section 3 west of I-75, and Sections 4- There is significant land that actually is rural or vacant adjacent to wetlands and Estero Bay in R 24 E, T 45 S (Sections 28, 29, and 31-35), together with Sections 3-5, 8-10, and 15 in R 24 E, T 46 S, that are designated for Suburban or Outlying Suburban uses. Land designated rural, open land or fringe in 1984 has been redesignated for urban uses over the years. A large block straddling Daniels Parkway east of the 6 Mile Cypress Strand has been designated Outlying Suburban. Approximately between Buckingham Road, Orange River Boulevard and I-75, rural land has been redesignated as Rural Community Preserve. Large blocks of land, one at the extreme north end of the county between U.S. 41 and I-75, and the other east of I-75 near the river, have gone from rural to Outlying Suburban. A large amount of what was rural and fringe between Bonita Springs and San Carlos Park, west of U.S. 41, has become Suburban and Outlying Suburban. CHHA and Hurricane Evacuation and Shelter. Objective 75.1 of the amended Lee Plan defines and delineates Coastal High Hazard Areas (CHHA) for the first time. Previously, the plan referred to the Federal Emergency Management Agency (FEMA) "A Zone," which encompasses somewhat more land than the new CHHA. Policy 75.1.4 of the amended Lee Plan, which formerly applied to the "A Zone," states: Through the Lee Plan amendment process, land use designations of undeveloped areas within [CHHA] shall be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. In this round of amendments, the County did not consider either reducing density categories, or assigning the minimum allowable densities in categories with a range of densities, in undeveloped land in the CHHA. In prior rounds of amendments, the County reduced densities in areas that would be inundated by Category 1, 2 and 3 hurricanes (which would include CHHA). Assuming maximum allowable densities together with the other Figure 14A assumptions, the density reductions reduced population accommodation by 13,000 units in those areas. Elimination of the 2010 Overlay opened additional land to immediate development in the CHHA. There was no data and analysis on the amount of new land opened to immediate development or the additional population accommodated in the CHHA that would result. Goal 79 in the Lee Plan, as amended, is to "provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.1 of the Lee Plan, as amended, is to restore evacuation times to 1987 levels by 2000, and to reduce the clearance time portion of evacuation time to 18 hours or less by 2010. Previously, the plan's objective was to achieve 1987 evacuation times by the year 1995. Lee County has among the best hurricane planning efforts in southwest Florida. Nonetheless, as of the time of the final hearing, evacuation times still exceeded 1987 levels, and clearance times exceeded 18 hours. Little progress had been made toward the previous objective to achieve 1987 evacuation times by the year 1995. That is why the objective was extended five more years until the year 2000. It may be that the 2010 Overlay was not designed with hurricane evacuation times in mind. It also is true that the County's evacuation plans are updated every three years based on actual development data. But it also is true that additional development in the CHHA due to elimination of the 2010 Overlay may make it more difficult to achieve Objective 79.1, even as amended. Objective 79.2 of the Lee Plan is to make adequate shelter space available by the year 2010 "for the population in the Hurricane Vulnerability Zone at risk under a Category 3 storm." There was no data and analysis of the impact of eliminating the 2010 Overlay on the County's ability to achieve either Objective 79.1 or Objective 79.2. There also was no data and analysis of the impact of amending Objective 75.1 and 75.1.4 to reduce the size of the coastal area subject to consideration for land use density reductions on the County's ability to achieve either Objective 79.1 or Objective 79.2. Change of Alico Property from DRGR to AC. Another significant FLUM amendment in the EAR-based amendments was to change the designation of 1400 acres of property owned by Alico, Inc., from DRGR to Airport Commerce (AC). Uses allowed in the AC district include light manufacturing and assembly, warehousing, distribution facilities, ground transportation and airport related terminals or transfer facilities, and hospitality services. Suitability. Policy 1.4.5 of the plan, as amended, defines DRGR as "upland areas that provide substantial recharge to aquifers most suitable for future wellfield development" and as "the most favorable locations for physical withdrawal of water from those aquifers." Although previously designated DRGR, more recent data and analysis calls this designation into question. The amendment property does provide some recharge to both the water table (surficial) aquifer and the underlying Sandstone aquifer, but it does not provide above-average groundwater recharge for either aquifer (or any recharge to any of the deeper aquifers). In addition, it is not a good site for the development of a wellfield in either the water table or the Sandstone aquifer. The water table aquifer is not especially thick, and there are too many wetlands on the site for production from the water table aquifer. (Pumping from the water table aquifer next to the airport also could be problematic in that the stability of the soil under the airport could be affected. (Cf. Finding 100, below.) In the Sandstone aquifer, groundwater flows away from the site, making it unsuitable for production. Despite the questions raised by the new data and analysis, the amendment property may still be suitable for designation as DRGR. But that does not necessarily make it unsuitable for AC use. In terms of location, the amendment property is perfectly suited to AC use. I-75 and other AC-designated property is to the immediate west of the amendment property. The Southwest Florida International Airport is to the immediate north of the amendment property. A second runway and a new cargo handling facility are planned for construction to the south of the existing airport runway. When built, the new facilities will practically be touching the northern boundary of the amendment property, and the proposed new south airport access will cross the amendment property and intersect Alico Road, which is the southern boundary of the amendment property. Commercial and industrial use on the property would not pose an unreasonable threat to contaminate either existing or future potable water wells. Theoretically, stormwater from the amendment property could contain contaminants which could eventually migrate to a drinking water well. But the threat of such contamination is small. Permitting criteria adopted and imposed by the South Florida Water Management District will require all construction on this site to conform to surface water quality standards through Chapter 373, Florida Statutes, and permitting rules of the Water Management District within Chapter 40, Florida Administrative Code. These rules will require on-site detention and retention of stormwater which will greatly reduce the threat of surface contaminants leaving the property. Additionally, all surface water runoff from the property, and most groundwater, will be intercepted by the Alico Road Canal, which drains in a westerly direction away from any existing drinking water wells. If any contaminants from the amendment property were to enter the groundwater, avoid the Alico Road Canal and leave the property, they would have to migrate a considerable distance to reach a potable water wellhead. The only wellfield pumping, or planned to pump, from the water table aquifer which contaminants possibly could reach would be the existing Gulf Utilities wellfield approximately one mile and a half southeast of the amendment property. Contaminants within the groundwater move at a slower speed than the water itself. Most contaminants move at a much slower speed than the water. Thus, the chances are very slight that contaminants from the amendment property would threaten the Gulf Utilities wellfield. Any metals in the groundwater would attach to soil particles and migrate extremely slowly. Other potential contaminants would eventually break down within the soil as they slowly migrated away from the site. It was estimated that the travel time from the closest portion of the amendment property to the Gulf Utilities well field would be in the neighborhood of 50 to 100 years. If any such contaminants did reach the wellfield they would be in such dilute concentrations that they would pose no health hazard. The only other wellfield that is reasonably close to the proposed site is the Florida Cities well field to the northeast. This wellfield taps the Sandstone aquifer. The Sandstone aquifer is separated from the water table aquifer by an approximately 40 foot thick semi-confining layer. This layer is composed of silt and clay which provides hydraulic separation between the aquifers. There are no known breaches of the semi-confining layer in this area. The direction of flow and the nature of the semi-confining layer also make it extremely unlikely that contaminants from activities on the amendment property and discharged from the site by stormwater could migrate to the Florida Cities water wellfield. The groundwater in the water table aquifer flows generally southwest, and the confining layer has low leakance values. Additionally, safety measures required for the development of the amendment property include the installation of monitoring wells and the requirement to use the best environmental management practices. The data and analysis includes panther sitings in the vicinity of the amendment property. There also is evidence that the amendment property is part of land that has been labeled as "Panther Priority 2." The significance of this label was not clear from the evidence. In any event, while part of the "Panther Priority 2" land, the amendment property clearly also is surrounded by uses not particularly suited for panthers. Currently, rock mining is occurring on property to the east and to the south of the amendment property. Rock mining on the amendment property itself also is allowed under its previous DRGR designation. The airport is immediately to the north, and both other AC property and I-75 are immediately to the west. In light of those developments, the "Panther Priority 2" designation does not make the amendment property unsuitable for AC designation. Need. The County has a legitimate need to diversify its economy so that it is not so dependent on tourism. It is the County's perogative to attempt to develop its regional airport into an international trade center. In view of the suitability of the amendment property for AC, and its projected role in furthering the County's plans to develop its regional airport into an international trade center, the amendment property should be viewed as a valuable economic resource in need of protection. It is appropriate, when trying to protect a resource, to plan for the needs of generations to come. If the amendment is not approved, there is a good chance that the land eventually will be used for a rock mine. Residential use in that location is incompatible with airport noise. A public gun range is a permissible use of DRGR property, but there are no plans for a public gun range on the amendment property, and such a use also would not be compatible so close to the airport and would be unlikely. Although agricultural use as pasture is possible, ultimate use of the property for pasture seems less likely than rock mining. As previously mentioned, the land immediately to the east of the subject parcel and to the south of the subject parcel is being utilized as rock pits. If the amendment property eventually is used for rock mining, the land would be excavated into what becomes deep lakes. In all likelihood, such a use would permanently preempt the land in question from being a commercial resource that could be utilized in conjunction with the airport. Of the 1400 acres of amendment property, approximately 800 acres are jurisdictional wetlands; only about 600 acres of uplands actually can be used for AC purposes. Meanwhile, approximately 173 acres of industrial land has been rezoned to other uses within Lee County between 1990 and the date of the hearing. Another 300 acres of AC are to be incorporated into the new airport expansion. But there was no data or analysis as to how much of those 473 acres consist of wetlands. Utilizing the 1984 Roberts methodology, the County has analyzed the need for industrial land in the County and has concluded that the addition of the amendment property is necessary to meet those requirements. However, as previously mentioned, it is not clear how the County's analysis was conducted or what the actual needs for industrial land in the County are. In addition, several mixed land use categories permit light industrial use but do not establish percentage distributions or other objective measurements of the distribution among the mixed uses within those categories. Taken as a whole the data and analysis does not establish that the AC amendment is necessary to meet the need for industrial land in the County. Adequate data and analysis to establish those needs is necessary to determine whether other land where industrial use is permitted should be redesignated if the AC amendment is to be adopted. As previously discussed, Lee County has much more land designated for commercial development than will be needed to accommodate the projected 2020 population. See Findings 58-68, above. In support of their position that the AC map amendment is needed in order to meet the demand for airport-related industrial and commercial development that will be generated by the expanding Southwest Florida International Airport, Lee County and Alico point out that international airports serve a larger area than a single County, and that a larger AC district near the Airport will serve the Southwest Florida region. With its new runway and larger terminal with new cargo handling facility, the Airport Authority intends, and the County would like to encourage, a large increase in airfreight handled by the Airport by 2020. Alico prepared a Response to DCA's ORC, which attempted to compare the acreage of approved, large-scale commercial and industrial development near the Orlando International Airport to the amount of acres proposed for Airport Commerce near the Southwest Florida International Airport. However, the Alico Response failed to take into account the amount of approved development near the Orlando Airport which is vacant. According to the Alico Response, the Orlando International Airport handled 233,587 tons of airfreight in 1994. Also according to the Alico Response, 7,152 acres of industrial and commercial development, including ten DRI's, are located near the Orlando Airport. The ten DRI's located near the Orlando Airport include 55,464,770 square feet of approved industrial and commercial development. But as of June of 1995, only 3,386,744 square feet of industrial and commercial development, or 6.11 percent of the approved industrial and commercial square footage, had been constructed. Applying the percentage of approved industrial and commercial in DRI's actually developed by 1995 (6.11 percent) to the acreage approved for industrial and commercial (7,152 acres), it can be determined that 440 acres of existing industrial and commercial development were supporting the 233,587 tons of airfreight handled by the Orlando Airport in 1994. Based upon the Orlando Airport experience, it would appear that each acre of industrial and commercial development near an airport supports 534.54 tons of airfreight each year. The Southwest International Airport projects that 196,110 tons of airfreight will be handled by the Airport by 2020. Dividing the projected 2020 tonnage by the 534.54 tons of airfreight per acre from the Orlando Airport experience, it would appear that the air freight activities projected for the Southwest Florida International Airport by the year 2020 will support only about 367 acres of AC. The Lee Plan FLUM already includes approximately 2800 acres of AC located to the northwest of the Airport. (It is not clear whether the 300 acres consumed by the runway expansion should be deducted from the 2850 acres of AC said to currently exist.) The existing AC district is essentially undeveloped. The AC which already exists to the northwest of the Airport is more than sufficient to support the airfreight which the Airport expects to handle by 2020. Zemel FLUM Amendment. Background. The Zemels own approximately 8600 acres of land in northwest Lee County. The 1990 Comprehensive Plan amendments which resulted from the settlement between Lee County and DCA, designated Zemel property as DRGR with a residential density of one unit per ten acres. The DRGR designation for the Zemel property was determined to be in compliance with the Growth Management Act. Zemel v. Lee County & DCA, 15 FALR 2735 (Fla. Dept. Comm. Aff. 1993), aff'd, 642 So. 2d 1367 (Fla.1st DCA 1994). Based in part on data and analysis which were not available at the time of adoption of the DRGR category, a circuit court determined that the Zemel property did not meet the criteria for inclusion in the DRGR category. The circuit court ordered that: The property is hereby restored to the Rural land use classification on the Future Land Use Map of the Lee Plan, including restoration of the subject property's density to 1 du/acre and use of the Planned Development District Option for the property. This action shall not preclude the County from amending its plan, including the 2010 Overlay, as it pertains to the Zemel property, pursuant to Chapter 163, Fla. Stat., subject to constitutional limita- tions and other requirements of law. Placement of Zemel Property in Open Lands Classification The 1994 EAR-based amendments changed the land use designation of the Zemel property to Open Lands. Open Lands is a new category created by the EAR- based amendments in Policy 1.4.4. The residential density allowed in the Open Lands category is one unit per ten acres, except a density of one unit per five acres is permitted if the planned development process is used to prevent adverse impacts on environmentally sensitive lands (as defined in Policy 77.1.1.4). (Commercial and industrial uses are permitted in the Open Lands category in accordance with the standards in the Rural category.) Of the 8,600 acres owned by Zemel, approximately 1,900 acres are wetlands and 6,700 acres are uplands. Lee County chose the Open Lands category for the Zemel property because it was the least intensive land use category available after the circuit court determined that the DRGR category was not appropriate, and because the County did not wish to exacerbate the overallocation of the FLUM. According to new Policy 1.4.4: Open Lands are upland areas that are located north of Rural and/or sparsely developed areas in Township 43 South. These areas are extremely remote from public services and are characterized by agricultural and low-density residential uses. It was not proven that the Zemel property does not meet the Policy 1.4.4 definition of Open Lands. The Zemel property clearly is in Township 43 South. It is north of areas that can be said to be "sparsely developed." The Zemel property clearly is characterized by agricultural use. Finally, although some of the Zemel property is not "extremely remote" from some public services, all of the Zemel property can be said to be "extremely remote" from at least some public services, and some of the Zemel property can be said to be "extremely remote" from all public services. Placement of the Zemel property in the Opens Lands category was based on adequate data and analysis. To the extent that data and analysis in the EAR may have been lacking, the evidence at final hearing included adequate data and analysis. Using the Figure 14 methodology, the County calculated that Open Lands category would accommodate 2,073 people, as compared to 8,293 people at the Rural density. However, assuming development of all of the Zemel property at the one du/ac standard density allowed by the Lee Plan for Rural, 14,003 people (1 du/ac x 6700 upland acres x 2.09 persons/unit) would be accommodated. In the case of the Zemel property, such an assumption would be less unrealistic than in many other parts of the County since it is a large, vacant tract. The evidence also was that the Zemel property is one of the few parcels of land in the County in which use of the PDDO is a realistic possibility. Assuming maximum densities under the PDDO, the Zemel property under the Rural designation could accommodate 84,018 people (6 du/ac x 6700 upland acres x 2.09 persons/unit). Under the Open Lands category, even at the maximum density allowed for planned developments, the Zemel property could accommodate only 2,801 people (1 du/5 ac x 6700 upland acres x 2.09 persons/unit). Dependence of Open Lands on Deletion of Overlay Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. Although all of the parties now agree that the attempted deferral of this decision was "ultra vires," the evidence was that one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. Specifically, there was evidence that the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," was intended to remain together with the amendments which delete the FLUM 2010 Overlay, and to either become effective together or not at all. Otherwise, there would be no development authorized in property redesignated "Open Lands" because there was no land use category called "Open Lands" at the time of adoption of the 2010 overlay, and no express authorization for development of any kind in "Open Lands." Planning Timeframe. Clearly, the EAR-based Lee Plan amendments are intended to plan through the year 2020. The year 2020 was chosen for the amendments to enable the County to make use of the best available demographic projections being generated by the Metropolitan Planning Organization for that time frame. The Parks, Recreation and Open Space Element of the plan, as amended, retains Map 11. Map 11 depicts "Future Recreational Uses within Generalized Service Boundaries." It is the map that was generated in 1989 and used in the 1989 and subsequent plans for the year 2010. However, it was not proven that the map does not accurately depict "Future Recreational Uses within Generalized Service Boundaries" for the year 2020. The County concedes that the Community Facilities and Services Element of the plan, as amended, projects waste generation and recycling rates only from 1991 to 2015. The County contends that these projections are easily extrapolated to the year 2020, and no party disputes this. The County's response to the DCA's ORC report indicates that the Hurricane Shelter/Deficit analysis for the Conservation and Coastal Management Element is for shelter needs to the year 2000. However, the County cannot accurately project shelter needs much further in the future. The evidence is that the better practice is to plan for shorter periods of time and continually update the projections. This is what the County does. It was not proven that the County is planning for the wrong timeframe or that its plan is defective for that reason. Other alleged uses of the wrong planning timeframe actually arise from questions as to the allocation of land to meet the needs of the County through the year 2020. There is no question whether the County's intent is to plan for the year 2020. The dispute is whether land has been overallocated. Other Alleged Internal Inconsistency. Amended Objective 100.1 in the Housing Element uses data for the County, including municipalities, in projecting the number of housing units needed for the 2020 timeframe. It is true that EAR Figures 14, 14A and 14B, which analyze the FLUM, identify the number of units which may be accommodated for the unincorporated area. But EAR Figures 12 and 13, which also analyze the FLUM, are directed to the entire county, including municipalities. Besides, it is clear that the County understands its obligation is only to implement affordable housing with respect to the unincorporated county. Water Supply. The Regional Water Supply Master Plan (RWSMP) serves as supporting data for several amended policies in the Potable Water sub-element of the Community Facilities and Services Element. The purpose of the RWSMP was to ensure an adequate, reliable and cost-efficient supply of potable water to meet the current and future needs of Lee County to the Year 2030 and beyond, considering both economic and environmental factors. The County's reliance on implementation of the RWSMP for this purpose is justified. Preparation of the plan was a very complex undertaking. In preparing the population projections on which the Regional Water Supply Master Plan relies, the County's consultant attended the technical staff meetings of the individuals with the Metropolitan Planning Association (MPO) charged with preparing the MPO population projections. The MPO Countywide population projections utilized in the RWSMP were prepared by estimating the number of permanent residents and taking into account a number of other economic characteristics and social characteristics such as the number of children per household, historic and expected natural and State trends, and the degree to which these trends will affect the future of Lee County. The Lee Plan, as well as the Comprehensive Plans of the other governmental jurisdictions in Lee County, were utilized in preparing the RWSMP. It was a plainly spelled out requirement for preparation of the Master Plan that it had to be consistent with the Comprehensive Plans of the County and cities in Lee County. The MPO population projections are reasonably accurate, and they are the best available data for purposes of planning water supply. The MPO projections are preferable to the "maximum theoretical" population accommodation used in the DCA's residential allocation analysis. Regardless of the appropriate analysis for purposes of determining whether a plan overallocates land, it would not be appropriate to plan water supply based on unrealistic population projections. The RWSMP uses MPO 2020 population projections that are somewhat different from, but reasonably close, to the 2020 population projections reflected in Figure 14 and used to support the FLUE of the Lee Plan. The special purposes of the RWSMP projections justify the differences. Besides, the differences are not large enough to prove beyond fair debate that the plan is not internally consistent. Wetlands Protection. Prior to the County's adoption of the EAR-based amendments, Goal 84 in the Conservation and Coastal Management Element of the Lee Plan and its objectives and policies included guides for local land development regulations in the protection of wetlands by establishing allowable land uses and their densities, and by establishing design and performance standards for development in wetlands. The County modified Policy 84.1.2 (renumbered 84.1.1) in part by deleting a prohibition against the construction of ditches, canals, dikes, or additional drainage features in wetlands. Ditches, canals and dikes could be constructed in wetlands to have beneficial effects. For example, a ditch could be built to increase the hydroperiod of a wetland and result in a benefit. A dike could enhance a mitigation area, which would also result in environmental benefits. Thus, the repeal of this prohibition could benefit wetlands. The 1984 data and analysis contained in the EAR recommended that the prohibition be deleted and instead suggested the use of performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. The EAR-based amendments to the Lee Plan do not include performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. Instead, the County has modified Policy 84.1.1 (renumbered 84.1.2) in part by deleting the following language: Wetland regulations shall be designed to protect, conserve, restore, or preserve water resource systems and attendant biological functions, including: Preventing degradation of water quality and biological productivity. Preventing degradation of freshwater storage capabilities. Preventing damage to property and loss of life due to flooding. Preventing degradation of the viability and diversity of native plants and animals and their habitats. Assuring the conservation of irretrievable or irreversible resources. In place of those performance standards, the EAR-based Policy 84.1.2 provides: The county's wetlands protection regulations will be amended by 1995 to be consistent with the following: In accordance with F.S. 163.3184(6)(c), the county will not undertake an independent review of the impacts to wetlands resulting from development in wetlands that is specifically authorized by a DEP or SWFWMD dredge and fill permit or exemption. No development in wetlands regulated by the State of Florida will be permitted by Lee County without the appropriate state agency permit or authorization. Lee County shall incorporate the terms and conditions of state permits into county permits and shall prosecute violations of state regulations and permit conditions through its code enforcement procedures. Every reasonable effort shall be required to avoid or minimize adverse impacts on wet- lands through the clustering of development and other site planning techniques. On- or off-site mitigation shall only be permitted in accordance with applicable state standards. Mitigation banks and the issuance and use of mitigation bank credits shall be permitted to the extent authorized by applicable state agencies. As a part of the EAR-based amendments, the County also modified Policy 84.1.4 by deleting language that addressed permitted uses in wetlands and their densities, but that issue is now covered under renumbered Policy 84.1.1. The amendments added to Policy 84.1.4 the following provision: Land uses in uplands will be regulated through the implementation of the Land Development Code to avoid degrading the values and functions of adjoining and nearby wetlands. New Policies 84.1.2 and 84.1.4 in effect defer performance standards covering development in wetlands to the state and water management district permitting processes. The Lee amendments in part are an attempt to avoid duplicating what state agencies accomplish through their permitting programs. The evidence is that the state and water management district permitting processes include newly adopted Environmental Resource Permit (ERP) rules. These rules consider the type, value, function, size, condition and location of wetlands in determining how to protect them. The ERP rules also require proposed development to avoid or eliminate wetland impacts or, if not possible, to minimize and mitigate for them. The ERP rules also require consideration of the cumulative and long-term adverse impacts of development on wetlands in a comprehensive manner within the same water basin. The DEP and the Southwest Florida Water Management District also have adopted supplemental ERP rules covering only the jurisdiction of that water management district, which includes Lee County. By including a requirement that every state environmental permit shall be incorporated into county permits and that violations of a state permit also are violations of the county permit, the Lee Plan commits the County to assist the State in enforcing environmental permits in Lee County. Through this new emphasis on compliance and enforcement, Lee County will be providing valuable assistance to state environmental protection. Lee County's efforts will assist those agencies by devoting staff to compliance and enforcement efforts. Prior to the EAR-based amendments, the County had two wetland land use categories under the Lee Plan. These were described as the Resource Protection Areas (RPA) and Transition Zones (TZ). Guidelines and standards for permitted uses and development in the RPA and TZ were found in the policies under Objective 84.1 and 84.2, respectively. As a part of the EAR-based amendments, the County replaced the RPA and TZ categories with a single Wetlands category. This new Wetlands category includes all lands that are identified as wetlands under the statewide definition using the state delineation methodology. The County's definition of "wetlands" in the plan amendments covers more area than the areas previously known as "resource protection" and "transition zones." To that extent, the present amendments to the Lee Plan give greater protection to wetlands than the previous version of the Lee Plan. The Lee Plan, as amended, also contains other GOP's. Taken together, the GOP's ensure the protection of wetlands and their natural functions. Reservation of Future Road Right-of-Way. As a part of the EAR-based amendments, the County has deleted or amended certain policies in the Traffic Circulation Element of the Lee Plan regarding the acquisition and preservation of rights-of-way. Deleted Policy 25.1.3 provided that the County would attempt to reserve adequate rights-of-way for state and county roads consistent with state and county plans. The County also deleted Policy 21.1.7, which addressed the possibility of acquiring future rights-of-way through required dedications of land. Policy 21.1.7 provided: The previous policy encouraging the voluntary dedication of land for future right of way needs shall not be construed so as to prohibit the adoption of regulations requiring such dedication. However, any such regulations must provide for a rational nexus between the amount of land for which dedication is required and the impact of the development in question, and must also provide that such dedication, when combined with other means which may be used to offset the impact of development (such as, for example, the imposition of impact fees), does not exceed the total impact of the develop- ment in question upon the county's transportation network. The "previous policy encouraging the voluntary dedication of land for future right of way needs," referenced in Policy 21.1.7, above, was Policy 21.1.6, which has been renumbered 21.1.5. As modified, that policy provides: In order to acquire rights-of-way and complete the construction of all roads designated on the Traffic Circulation Plan Map, voluntary dedications of land and construction of road segments and inter- sections by developers shall be encouraged through relevant provisions in the development regulations and other ordinances as described below: Voluntary dedication of rights-of-way necessary for improvements shown on the Traffic Circulation Plan Map shall be encouraged at the time local development orders are granted. In cases where there are missing segments in the traffic circulation system, developers shall be encouraged to also construct that portion of the thoroughfare that lies within or abuts the development, with appropriate credits granted towards impact fees for roads. However, site-related improvements (see glossary) are not eligible for credits towards impact fees. Policy 21.1.7 provided policy guidance for LDRs in establishing required dedication of future rights-of-way as a means of acquisition, if the County chose to use that measure. Policy 21.1.6 (renumbered 21.1.5) provides policy guidance for LDRs in establishing voluntary dedication of future rights- of-way as another means of acquisition. By deleting Policy 21.1.7, the Lee Plan, as amended, is left with a policy that establishes only the voluntary dedication measure as a means towards acquiring future rights-of-way to facilitate the construction of roads designated on the Traffic Circulation Plan Map of the Lee Plan. The County has made these changes because legally it appears that reservation of future right-of-way may no longer be a viable option after the decision in Joint Ventures, Inc., v. Dept. of Transportation, 563 So. 2d 622 (Fla. 1990). The County's plan does more than just encourage voluntary dedication of rights-of-way. There are numerous policies in the Lee Plan that, taken together, adequately address the acquisition and preservation of rights-of-way. The following policies relate and achieve right-of-way protection: Policy 1.3, 1.6, 4.1.1, 4.1.2, 6.1.5, 16.3.5, 21.1.5, Objective 21.2, Policies 21.2.1, 21.2.3, 21.2.5, 21.2.6, 21.2.7, Policy 23.1.2, 23.1.4, 23.2.3, Policy 25.1.1, and 25.1.3. Under these policies, all new projects receive a review for voluntary dedication as against the Lee County official trafficways map and the facility need identified for the planning horizon of the future traffic circulation element and map. In addition, all new developments are required to mitigate off-site impacts through a payment of impact fees. They are also required to address and mitigate site-related impacts through the provision of site-related improvements at the developer's expense. Payment of impact fees and additional revenues generated through mitigation of site-related impacts, both generate revenues for the capital improvements programming process for purchase of rights-of-way. Accomplishing necessary site-related improvements pursuant to the Lee County program also frequently results in County acquisition of rights-of-way at the developer's expense. Mitigation of site-related impacts, as well as payment of proportional share and impact fees, are generally accomplished through Policy 1.8.3, Subsection 1, Policy 2.3.2, Objective 3.1, Policy 3.1.3, Policy 7.1.2, Policy 14.3.2, Objective 22.1, 23.1, and the policies thereunder, Policy 23.1.1, 23.1.3-.7, 23.2.6, Objective 24.2, Policy 25.1.2, Objective 28.2, and Policy 70.1.1, Subsection A-7. The County's primary method of acquisition of rights-of-way is through the Capital Improvements Element. The Capital Improvements Element does include projected costs to purchase needed rights-of-way. The Lee County Capital Improvements Program is accomplished through Goal 70 of the Lee Plan, which expressly includes acquisition of rights-of-way. Objective 77.3 - Wildlife. Before the EAR-based changes, Objective 77.3 of the Lee Plan was to: "Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system . . .." In pertinent part, the EAR-based amendment deleted the phrase "current complement of." The change does not alter the meaning of the objective. The concept of a baseline expressed by the deleted phrase also is inherent in the words "[m]aintain and enhance" and remains in the amended objective. Policy 77.11.5 - Endangered and Threatened Species. The EAR-based amendments deleted Policy 77.11.5, which stated: Important black bear and Florida panther use areas shall be identified. Corridors for public acquisition purposes shall be identified within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Data and analysis supports the deletion of the first two sentences. The use areas and public acquisition corridors have been identified. To reflect the new data and analysis, Policies 77.11.1 and 77.11.2 also were amended to provide for updating of data on sitings and habitat for these species and to encourage state land acquisition programs. The last sentence of former Policy 77.11.5 has been transferred and added verbatim to Policy 77.11.2. Related Policy 77.11.4 was also amended to reflect new data and analysis and to provide that, instead of just encouraging the acquisition of the Flint Pen Strand, the County shall continue an acquisition that is in progress. The Adoption Ordinance. As mentioned in connection with the Zemel amendment, Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. All of the parties now agree that the attempted deferral of this decision was "ultra vires." All of the parties except for the Zemels agree that, under Section 8 of the ordinance, the "ultra vires" part of the adopting ordinance is severable from the rest of the ordinance, which remains valid. The Zemels take the positions (1) that the state circuit courts have exclusive jurisdiction to determine whether the remainder of the ordinance is valid and (2) that the remainder of the ordinance is invalid. Section 8 of Ordinance 94-30 provided: [I]t is the intention of the Board of County Commissioners . . . to confer the whole or any part of the powers herein provided. If any of the provisions of this ordinance shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining provision of this ordinance. It is hereby declared to be the legislative intent of the Board of County Commissioners that this ordinance would have been adopted had such unconstitutional provisions not been included therein. The evidence was that, notwithstanding Section 8 of Ordinance 94-30, one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. As discussed in connection with the Zemel amendment, the evidence was that one such package consisted of the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," and the amendments which delete the FLUM 2010 Overlay. There also was some less compelling evidence that amendments creating the Commercial Site Location Standards Map, FLUM 16, were intended to remain together with the amendments which delete the FLUM 2010 Overlay. No other examples of similar "packages" of plan amendments was shown by the evidence or argued by any party. RGMC's Standing. The Responsible Growth Management Coalition, Inc. (RGMC), was formed in 1988 to insure compliance with Chapter 163, Florida Statutes, and F.A.C. Rule Chapter 9J-5 and to conserve resources. RGMC has offices in Lee County and conducts educational programs in Lee. In addition, at the time of the hearing, RGMC had 157 members residing throughout Lee County, most or all of whom own property in Lee County. RGMC participated in the process leading to the adoption of the Lee plan amendments in issue in this case and submitted oral or written comments, recommendations or suggestions between the transmittal hearing and adoption of the plan amendments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order finding that the Lee Plan amendments are not in compliance and requiring as remedial action: That the FLUE's mixed land use categories be amended to include percentage distribution or other objective measurements of the distribution among allowed uses, whether by use of an appropriate 2020 Overlay or by other appropriate means. That a sector plan be adopted for Lehigh Acres, including appropriate plans for provision of infrastructure, to create more balanced development in Lehigh and, to the extent possible, to direct future population growth to Lehigh and away from CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Such a sector plan could include minimum densities and target densities to support mass transit along transit corridors in Lehigh. That consideration be given to increasing densities in central urban areas and along transit corridors while at the same time reducing densities or adopting other plan provisions, such as the prohibition of certain kinds of development, to afford more protection to CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. One example would be the prohibition, or staging, of non-farm development in some or all rural areas. That, in accordance with Policy 75.1.4, undeveloped areas within CHHA be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. That the data and analysis supporting the remedial amendments account for units approved but not built and include both a population accommodation analysis based on maximum densities and an explanation of how the GOP's in the remedial amendments justify the resulting allocation ratio. That the remedial amendments include data and analysis of the impact of the resulting plan, as amended, on hurricane evacuation and clearance times and shelter planning, especially if, as part of remedial amendments, the 2010 Overlay is removed (or replaced). That the remedial amendments be based on data and analysis as to the need for commercial and industrial land, including the Alico amendment property. That the data and analysis extrapolate solid waste projections to 2020. That the sub-elements of the Community Facilities and Services Element (and other parts of the plan, as appropriate) be consistent with and based on data and analysis of future population predictions in light of any remedial amendments to the FLUE and FLUM. RECOMMENDED this 31st day of January, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0098GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: DCA's Proposed Findings of Fact. 1-17. Accepted. 18. There is a legal issue whether Ordinance 94-30 was adopted validly; otherwise, accepted. 19.-28. Accepted. Conclusion of law. Rejected in part: plan includes "guides" (but no "objective measurements"); and Commercial Site Location Standards Map 16 implies that other uses are required elsewhere in the districts where these sites are located. Otherwise, accepted. Last sentence, rejected. (Assumptions are in part "based on" the GOP's, but they also assume less development than permitted by the GOP's.) Otherwise, accepted. Accepted. Characterization "conservative" rejected as argument; otherwise, accepted. 34.-35. Accepted. 36. Accepted as being theoretically possible, but not likely to happen. 37.-38. Accepted. 39. Accepted as approximation of maximum theoretical residential capacity. 40.-46. Accepted. (However, as to 45 and 46, these numbers do not take into account industrial land needed to serve municipal populations that probably cannot or will not be supplied within the cities themselves.) First sentence, conclusion of law. Second sentence, rejected as not proven by a preponderance of the evidence. (The plan is "based on" the population projections, but allocates more land than needed to accommodate the population.) First sentence, conclusion of law; second sentence, accepted. 49.-50. Conclusions of law. 51.-52. First sentence, conclusion of law; rest, accepted. 53. First sentence, conclusion of law; second and third sentences, rejected as not proven by a preponderance of the evidence; last sentence, accepted. 54.-55. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 56. First sentence, conclusion of law; rest, accepted. 57.-58. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, accepted; third, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, rejected as not proven by a preponderance of the evidence; third, accepted (but does not prove non- compliance with the state plan.) First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 63.-64. Accepted. As to b.1. not timely raised; accepted as to b.2. (but easily extrapolated five more years to 2020); otherwise, rejected as not proven beyond fair debate. First two sentences of a. and b., accepted; otherwise, rejected as not proven beyond fair debate. (As to b., the discrepancies are not significant enough to create "internal inconsistency.") First sentence, rejected as not proven beyond fair debate; rest, accepted. Rejected as not proven by a preponderance of the evidence that deletion of the Overlay "accelerated development." (Rather, it allows--and, under certain conditions, would result it--development of more acreage sooner.) First sentence, accepted; rest, conclusion of law. First sentence, accepted; second, rejected as not proven beyond fair debate. First and third sentences, accepted; rest, rejected as not proven by a preponderance of evidence. (The population projections are easonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) Last sentence, rejected as not proven by a preponderance of evidence. (The RWSMP population projections are reasonably close to the Figure 14 projections. See also 66., above.) First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. See also 71., above. 74.-77. Accepted. 78. 2850 rejected as somewhat high (does not take into account some acreage removed from AC); otherwise, accepted. 79.-81. Accepted. 82.-83. Accepted. However, last sentences assume: (1) accurate inventory of developed acres in Orlando comparable to the land uses in AC under the Lee Plan; (2) 2850 acres of AC; and (3) developability of all AC acreage--including wetlands--for AC use. Those assumptions are not, or may not be, reasonable. 84. Rejected as not proven by a preponderance of evidence. See 82.-83. 85.-87. Accepted. However, as to 87., it is noted that the words "area," "surrounded by," and "nearby" are imprecise. Accepted; however, the degree of the sandstone aquifer's "susceptibility" to impacts depends on many factors. Last sentence, rejected as not proven by a preponderance of evidence that existing sources cannot produce any more; however, proven that new sources will be required, and otherwise accepted. Accepted. Last sentence, rejected as not proven by a preponderance of evidence that groundwater moves "to" the existing and planned wellfields. Otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence; rest, accepted. Fourth sentence, rejected as not proven by a preponderance of evidence; rest, accepted. First sentence, accepted; second, rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 97.-98. Accepted. Characterization of methodology as "flawed" rejected as not proven by a preponderance of evidence. (It depends on the use being made of the results of the methodology.) Otherwise, accepted. Accepted. Last sentence, legal conclusion. (Legally, it appears that reservation of future right-of-way may no longer be a viable option, and the County's amendments presume that it is not.) Rest, accepted. 102.-105. Accepted. 106. Rejected as not proven by a preponderance of evidence that voluntary dedication is not "effective" as one of several policies. Otherwise, accepted. 107.-108. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. Second and third sentences, rejected as not proven by a preponderance of evidence that the state regulations are supposed to serve as "guidelines" or "guidance" for LDR's; rather, they are to serve in the place of duplicative County LDR's on the subject. Otherwise, accepted. Accepted. (However, appropriate comprehensive planning for wetlands occurs in other parts of the plan; the state regulations take the place of performance standards that would be duplicated in plan provisions and LDR's.) Last sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. Rest, accepted. (However, state regulations apply to some uplands that adjoin or are near to wetlands.) First sentence, accepted. (They don't guide the establishment of design and performance standard kinds of LDR's for any development in any wetlands; the state regulations take the place of design and performance standards that would be duplicated in plan provisions and LDR's.) Second sentence, rejected as not proven by a preponderance of evidence (that they are the "core wetland policies in the plan.") Third sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. RGMC's Proposed Findings of Fact. 1.-8. Accepted. 9. Conclusion of law. 10.-15. Subordinate; conclusion of law; argument. 16. Accepted but subordinate. 17.-18. Rejected as not supported by record evidence. 19.-35. Accepted. 35(a). Conclusion of law. 36.-40. Accepted. 40(a). Conclusion of law. 41. Accepted. 41(a). Conclusion of law. 42.-44. Accepted. Accepted; however, the option to consider assignment of the minimum of a range of densities is in parentheses after the primary option to consider reducing densities. Largely argument. The objective and policy is "triggered" by any plan amendment, before and after the change from "A Zone" to "CHHA." See 47. Accepted. 47(a). Rejected as not proven beyond fair debate. (It is a question of internal consistency.) Accepted. 48(a). Argument and recommended remediation. Accepted. 50.-59. County motion to strike granted. (Issue not raised timely.) 60.-62. Accepted. See rulings on DCA proposed findings. County motion to strike granted. (Issue not raised timely.) 65.-66. Rejected as not proven by a preponderance of evidence. (The population projections are reasonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) 67.-73(a) County motion to strike granted. (Issue not raised timely.) See rulings on DCA proposed findings. Accepted. Rejected as not proven by a preponderance of evidence. 77.-78. 2800 rejected as somewhat high (does not take into account some acreage removed from AC); 1000 rejected as 400 low; otherwise, accepted. 79.-81(a). Accepted. Rejected as not proven by a preponderance of evidence. 82(a). Accepted. Conclusion of law. Rejected as not proven by a preponderance of evidence. Accepted. Accepted but "between" is imprecise. Accepted, but not likely. Accepted that two are mutually exclusive; otherwise, rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence. Rejected as not proven beyond fair debate. Accepted. Rejected as not proven by a preponderance of evidence that the lands are "adjacent"; otherwise, accepted. 93.-94. Accepted. Rejected as not proven beyond fair debate. Rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence. See rulings on DCA proposed findings. Rejected as not proven by a preponderance of evidence that it is "the reasonable professionally acceptable methodology." Rejected as unclear and as not proven by a preponderance of evidence. (Whether it is appropriate to apply a safety margin factor just to projected new growth can depend on the safety margin factor used and how far out the projection.) Rejected as unclear and as not proven by a preponderance of evidence. Rejected as being hypothetical argument. (Also, the ratios do not convert to percentages, i.e., 25:1 does not convert to a safety margin factor of 25 percent.) 104.-111(a). Rejected as not proven by a preponderance of evidence that "overallocations" occur in the earlier years of the planning timeframe; the relevant inquiry relates to the planning horizon. Also, as to 111., the reference should be to the year 2020. (Also, again the ratios do not convert to percentages.) Otherwise, accepted. 112.-118. Accepted as being paraphrased from part of the Sheridan Final Order. 119.-128. Accepted as being the adjustments to Figure 14B to yield unrealistic "maximum theoretical" capacity. 129.-130. Conclusions of law. 131. Accepted. 132.-133. Rejected as not proven by a preponderance of evidence. (The plan does not "propose development"; its projections on which the County bases its facilities and services are more realistic that the "maximum theoretical" capacity projections.) Also, these specific issues were not timely raised, and County motion to strike granted. 134. Accepted. 135.-140. Descriptions of what the various FLUM's show and what development has occurred over the years, accepted as reasonably accurate. Rejected as not proven by a preponderance of evidence that there were either official or unofficial "urban expansion lines." (It was not clear from the evidence whether the so-called "Proposed EAR Urban Boundary" shown on Lee Exhibit 53 was either an official or an unofficial "urban expansion line," and there was no other evidence of any "urban expansion lines.") Also, rejected as not proven by a preponderance of evidence that there was a "failure to maintain" them, or that the Southwest International Airport or the Westinghouse Gateway DRI "breached" the alleged "1988 urban expansion line." (The Westinghouse Gateway DRI was vested prior to 1984, and the regional airport development appears on FLUM's prior to 1988.) Also, development that occurred in earlier years is not particularly probative on the issues in this case (in particular, the amendment eliminating the Overlay). 141.-142. Accepted. 142(a). Rejected as not proven by a preponderance of evidence. Also, the specific issue of failure to establish an "urban expansion line" is not raised by amendments at issue in this case (in particular, the elimination of the Overlay), and was not timely raised by any party. 143.-146. Densities in land use categories, accepted as reasonably accurate. The rest is rejected as not proven by a preponderance of evidence. The plan provisions (or lack of them) in question have been determined to be in compliance. Primarily, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage of non-urban land uses prior to 2010. They also do not extend the Overlay to 2020. 147.-150. Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. 150(a). Rejected as not proven by a preponderance of evidence; also, conclusion of law. Conclusion of law. In part, accepted; in part conclusion of law. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. Rejected as not proven by a preponderance of evidence; also, conclusion of law. 154.-160. Accepted. Rejected as not proven by a preponderance of evidence. (It remains to be seen how effective they will be in the long term.) Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage in potential wildlife habitat and corridor areas prior to 2010. (They also do not extend the Overlay to 2020.) See rulings on DCA proposed findings. 164.-168. Rejected because issues not raised timely. 169. Rejected as not proven by a preponderance of evidence and as conclusion of law. 170.-174. County motion to strike granted. 175.-179. Accepted. 180.-182. Conclusions of law. 183.-184. Rejected as not proven beyond fair debate. 185. Accepted. 186.-188. Rejected as not proven by a preponderance of evidence. 189. First clause, rejected (see 186.-188.); second clause, accepted. 190.-191. Rejected as not proven by a preponderance of evidence. 192.-193. Rejected as not proven beyond fair debate. 194. Conclusion of law. 195.-196. Rejected as not proven by a preponderance of evidence. 197.-198. Except for typographical errors, accepted. (However, the last sentence of former Policy 77.11.5 was transferred verbatim to amended Policy 77.11.2.) Rejected as not proven by a preponderance of evidence to be the entire justification. (Also justified by updated data and analysis--namely, that the habitats have been identified and mapped--and by amended Policies 77.11.1 and 77.11.2, which respond to the new data and analysis.) Argument. 201.-204. Cumulative. (See 154.-157.) 205.-206. Rejected as not proven by a preponderance of evidence. 207.-208. Accepted. Accepted (although not demonstrated by Lee Exhibit 49). Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as not clear from the evidence that the Zemel property is connected to and part of the Cecil Webb Wildlife Management Area. Otherwise, accepted. 213.-216. Accepted. 217.-218. Not an issue; but, if an issue, rejected as not proven by a preponderance of evidence (which is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 219.-222. Not an issue; but, if an issue, rejected as not proven beyond fair debate (which, again, is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 223. Not an issue; but, if an issue, rejected. See 217.-222. Zemels' Proposed Findings of Fact. 1. Accepted; however, relatively little of the Zemel property abuts either U.S. 41 or Burnt Store Road. 2-10. Accepted. Last clause rejected as not proven beyond fair debate; another option would be to amend the definition. Otherwise, accepted. Last clause, rejected as not proven by a preponderance of evidence that they are not "sparsely developed." Otherwise, accepted. 13.-15. Accepted. First sentence, rejected as not proven by a preponderance of evidence; otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence as to the south; otherwise, accepted but irrelevant to the application of the definition. Accepted; however, not proven by a preponderance of evidence that the Zemel property is not north of "sparsely developed areas." (Emphasis added.) Rejected as not proven by a preponderance of evidence. Accepted. First sentence, rejected as not proven by a preponderance of evidence. Rest, accepted in large part and rejected in part as not proven by a preponderance of evidence. Clearly, at least a good portion of the Zemel property is "extremely remote" from all existing public services. Some portions of the Zemel property are not "extremely remote" from some public services, but not proven by a preponderance of evidence that at least some public services are not "extremely remote" from all portions of the Zemel property. Also, in addition to existing public services, c) and e) also refer to future public services. Rejected as not proven by a preponderance of evidence that no agricultural activities have been profitable (only that row crop farming has not); otherwise, accepted. Last sentence, not proven by a preponderance of evidence; otherwise, accepted. Rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence (as to second and third sentences, because of the existence of the Open Lands category.) Accepted (although there also are other data and analysis in the record). First sentence, rejected as not proven by a preponderance of evidence. (Not all of the statements are "conclusory".) Second, accepted. Third, rejected; see 21., above. 28.-29. Accepted. (However, as to 29., it refers to existing access.) First sentence, accepted. A. - rejected as not proven by a preponderance of evidence that the analysis "fails to recognize" the roads in northern Cape Coral (although it clearly does not mention them); otherwise, accepted. B. - rejected as not proven by a preponderance of evidence that the analysis "appears to ignore" the water line along U.S. 41 (although it clearly does not mention it); otherwise, accepted. C. - accepted; however, the "proximity" is to a point on the periphery of the property. Last sentence, rejected as not proven by a preponderance of evidence. Accepted. Second sentence, rejected as not proven by a preponderance of evidence except using the County's methodology. Otherwise, accepted. 33.-34. Accepted. Second sentence, rejected as not proven by a preponderance of evidence. (The County in effect "borrowed" the DCA's data and analysis.) Rest, accepted. Accepted, assuming the County's methodology; however, there also are other concerns. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. As to the second, there is rural land to the northwest; as to the third, there also is resource protection land in Charlotte County to the north, and the "enclave" is large; as to the fourth, no I-75 boundary would appear to apply to Township 43 even if it might appear to apply to the south. Rejected as not proven by a preponderance of evidence. (The analysis compares the costs and difficulty in Yucca Pen to Lehigh and Cape Coral; in terms of such a comparison, the differences are significant.) 40.-45. Accepted. County's Proposed Findings of Fact. 1.-2. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence; third, accepted (assuming "actual bona fide business" means a for-profit commercial enterprise.) Accepted. Rejected as contrary to the greater weight of the evidence that the DCA "agreed with and relied on" the County's analysis. (The DCA utilized the analysis for purposes of its objection.) Otherwise, accepted. Accepted. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence that the determination was "on a largely subjective basis" (although some determinations necessarily were at least partly subjective); otherwise, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the Overlay was designed "without policy considerations" or that historic growth trends were "simply extrapolated." (The policy considerations already in the plan were utilized, and an effort was made to predict growth in light of those policy considerations. It is true, however, that the Overlay was not designed to further direct growth patterns within the planning districts and subdistricts.) Accepted (but not particularly probative). 11.-14. Accepted. Rejected in part as contrary to the greater weight of the evidence to the extent that it implies that the impact of the plan was not taken into consideration in predicting future population. See 9., above. Otherwise, accepted. Firsts sentence, accepted. As to second and third, not clear from the evidence what if anything was submitted in the way of data and analysis for the remedial amendments. They were not introduced in evidence or referred to by any party. As to the last sentence, it is not clear from the evidence exactly how the 2.11 factor was derived or whether it took into account the 2010 population accommodation for Lehigh (282,000 people in this analysis). (T. 1267-1269.) If the 507,000 units of accommodation did not include Lehigh, the total accommodation of 1.06 million also could not have included Lehigh. Accepted. First three sentences, argument. Rest, accepted. 19.-20. Accepted. 21. Rejected as unclear what "that allocation" refers to. (Accepted if it means "up to 125 percent"; rejected as contrary to the greater weight of the evidence if it means "200 percent.") 22.-23. Accepted. First sentence, accepted; second, conclusion of law. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. Rejected as contrary to the greater weight of the evidence. Subordinate. Rejected as contrary to the greater weight of the evidence. (In addition, a more meaningful comparison would be between the adopted EAR 2020 plan without a 2010 Overlay and a 2020 plan with an overlay extending the 2010 Overlay out another ten years.) Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted (as accurate recitation of testimony) but subordinate to facts contrary to those found. 30.-32. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (As to first sentence, see Sheridan Final Order.) Accepted. First and last sentences, accepted. Rest, rejected as contrary to the greater weight of the evidence. Such an approach would direct population to Lehigh, which might be the best thing to do. (At this point in time, development of Lehigh under a good Sector Plan might be able to change what was classic urban sprawl under past conditions into well-planned growth under present and future conditions.) It might also direct population to other, non- urban areas if densities were not low enough in them. Finally, Nelson suggested other ways of bring the plan into compliance without the Overlay. 38.-42. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence. The County did not seek to "match the available land to meet that growth"; rather, it checked to see if what was on the FLUM would "accommodate" (i.e., hold) the population projected for 2020. Last sentence, rejected in that RGMC challenged the opinion in its response to this proposed finding; otherwise, accepted. Rejected that the County "cannot alter the future development" of Lehigh or that Lehigh is "beyond the reach of" the comprehensive plan; otherwise, accepted. The 199 acres is part of the 685 acre total. Otherwise, generally accepted. However, significant additional growth can be expected in coastal areas, and there is rural land both within and outside the so-called "I-75, U.S. 41 corridor"; presumably, the existence of this land is the reason the finding is couched in the terms: "the remaining area . . . is largely . . . along the I-75, U.S. 41 corridor"; and "all future growth . . . will predominantly occur." First and third sentences, conclusion of law; second, accepted. Conclusion of law. First sentence, accepted but subordinate; also, the rule citation is incorrect; in addition, they testified to the effect of removing the Overlay. Second sentence, conclusion of law. Accepted. (The effect of the Overlay is in the extent of the indicators that exist.) Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted; third, conclusion of law; fourth, accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. First sentence, accepted; second, conclusion of law. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is "clear"; also, conclusion of law. 58.-60. Accepted. Rejected as contrary to the greater weight of the evidence. (The same conditions exist without the Overlay.) Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. First sentence, rejected; second, accepted. Rejected as contrary to the greater weight of the evidence that the Overlay did not have any "true policy bias or consideration built into it"; otherwise, accepted. Accepted. (However, the same conditions exist without the Overlay.) 68.-71. Accepted. Rejected as contrary to the greater weight of the evidence that "removing Cape Coral . . . reduces the FLUM capacity"; rather, it represents a change in the methodology of evaluating the FLUM capacity. Otherwise, accepted. Accepted. 74.-78. Accepted. However, it appears that the County's treatment of Lehigh essentially was a device to enable it to have the projected population in the year 2020 treated as if it were the capacity of Lehigh in the year 2020. 79.-81. First sentence of 79, unclear; rest, accepted. However, only certain retail commercial are restricted to the locations on Map 16; others can go either there or elsewhere. 82.-85. Conclusion of law. First sentence, conclusion of law; rest, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the ELUM "represents the growth trends" (rather, it shows what is there now) or that, except for Lehigh, growth only "is occurring in the north/south core." Otherwise, accepted. Accepted. First and last sentences, rejected as contrary to the greater weight of the evidence. ("Barrier" is too strong; "obstacle" or "hindrance" would be accepted.) Otherwise, accepted. 91.-95. Generally, accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence and as conclusion of law that they are "objective measures" and "responsive to . . . 5(c)"; otherwise, accepted. Accepted. First sentence, accepted; second, accepted (although some higher, urban densities are in coastal areas, and there remains some rural land in the so-called "north/south core"); third, rejected as contrary to the greater weight of the evidence that a "large impact" is "clear"; fourth, rejected as contrary to the greater weight of the evidence that the "segmentation" is absolute but otherwise accepted. Except for Lehigh, generally accepted. (What is missing are "objective measures.") Generally, accepted. First sentence, conclusion of law; second, rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence that it is "nearly identical." Third sentence, rejected as contrary to the greater weight of the evidence that it necessarily is not excessive. The evidence was that it is not necessarily excessive, but it could be depending on many factors, including whether it was calculated based on total capacity on the planning horizon or incremental growth during the planning timeframe, and the length of the planning horizon. Otherwise, accepted. First two sentences, accepted; last two, rejected as contrary to the greater weight of the evidence. 107.-108. Accepted. 109. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. 110.-117. Rejected as contrary to the greater weight of the evidence. The effect of removing the Overlay is to allow more development sooner throughout the County. The effect of the increased development would depend on how it occurs. As to 116 and 117, one purpose of the Overlay was to require a mix of uses in mixed land use districts. First sentence, rejected. See 110-117, above. Rest, accepted. Cumulative. Last sentence, subordinate argument; except for apparent typographical error in third sentence, rest accepted. Last sentence, rejected as unclear from the evidence why there has been no agricultural use; otherwise, accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. ("Significance" depends on other factors as well, including the amount of acreage in other mixed land use categories that allow light industrial.) Assuming that the "127 additional acres" refers to uplands, the rest is accepted. 124.-125. Rejected as contrary to the greater weight of the evidence and, in part, conclusion of law. There was no evidence of any serious risk of a taking. If these were legitimate reasons to redesignate the Alico property AC, it would be questionable if any DRGR would survive. First sentence, accepted (assuming the County's efforts are otherwise "in compliance"; second, subordinate argument; third, cumulative. Accepted. (However, the County's analysis does not include acreage in other mixed land use categories that allow light industrial.) First four sentences, accepted but irrelevant; penultimate, rejected as contrary to the greater weight of the evidence that it is "safe to assume"; last sentence, accepted. First two sentences, accepted; third, rejected as contrary to the greater weight of the evidence that mining would "permanently preempt" commercial use, but accepted that subsequent commercial use would be much less likely; fourth sentence, accepted (except for typos); last sentence, accepted. Second sentence, rejected as not clear that it "won't be available," but accepted that it may not, depending on when it is "needed." Rest, accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence that it is "clear" but accepted that it probably "will not pose a significant threat"; third and fourth, accepted; fifth, rejected as contrary to the greater weight of the evidence that there is no recharge, but accepted that recharge is not better than average; rest, accepted. Accepted (with the understanding that the last sentence refers to surface water runoff). First sentence, accepted; second and third, rejected as contrary to the greater weight of the evidence that the Gulf Utilities-San Carlos wellfield is the only wellfield in the water table aquifer (otherwise, the third sentence is accepted). 134.-136. Accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. (There also were other internal consistency issues concerning the date.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. 140.-141. Accepted. 142. Irrelevant; issue not timely raised. 143.-144. Accepted. First sentence, accepted (in that DCA and RGMC did not prove internal inconsistency beyond fair debate); second, third and fourth sentences, accepted (but do not rule out the possibility of impacts from removal of the Overlay); rest, rejected as contrary to the greater weight of the evidence. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 147.-149. Accepted. First two sentences, argument; third, rejected as contrary to the greater weight of the evidence; last, accepted. First sentence, rejected as contrary to the greater weight of the evidence in that a reduction in densities is not necessarily positive; rest, accepted. 152.-155. Accepted. First sentence, accepted (assuming it refers to the deleted first sentence of former Policy 84.1.2, now 84.1.1); second, rejected as contrary to the greater weight of the evidence since its context requires the opposite interpretation. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that the report "specifically recommends the amendment . . . in the fashion that Lee County has done." Otherwise, accepted. 159.-160. Accepted (159, based on the plan language and Joyce testimony, as well as the Deadman testimony.) First sentence, accepted; second, conclusion of law. Rejected as contrary to the greater weight of the evidence; conclusion of law; subordinate. Accepted; subordinate. Accepted. Rejected as contrary to the greater weight of the evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 166.-169. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. (Use of the "allocation ratio" is being determined in this case.) Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order can be said to be a DCA "publication." Otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that Joint Exhibit 17 gives some indication of how to apply an "allocation ratio"; accepted that Joint Exhibit 17 does not fully explain how to apply the "allocation ratio." Accepted. Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order constitutes such evidence. Accepted. Rejected as contrary to the greater weight of the evidence. Atlantic Gulf's Proposed Findings of Fact. 1.-3. Accepted. 4. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 5.-7. Accepted. 8.-10. In part conclusions of law; otherwise, accepted. (The incorporation of the DEP and SWFWMD permitting requirements only replaces former County permitting requirements; other parts of the amended plan's provisions relating to wetlands protection remain in effect.) Alico's Proposed Findings of Fact. 1.-13. Accepted. Rejected as contrary to the greater weight of the evidence in that the phrase "substantial recharge to aquifers most suitable for future wellfield development" may distinguish DRGR-suitable land from other land by the nature of the aquifer it recharges, not by the relative amounts of recharge. However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that it is in the "area" of "most favorable locations for physical withdrawal of water from those aquifers." However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. 16.-19. Accepted. Accepted (assuming it refers to the DCA submitting); subordinate. Accepted. 22.-24. Subordinate argument and conclusion of law. 25.-34. Accepted. 35.-36. Accepted; subordinate. Last sentence, accepted; rest, subordinate argument and conclusion of law. Accepted (except, in s. and u., it should read "Six Mile Cypress Basin.") Rejected as contrary to the greater weight of the evidence that the list is not exhaustive ; otherwise, accepted. 40.-41. Accepted. Rejected as contrary to the greater weight of the evidence in that Policy 7.1.1 just says applications are to be "reviewed and evaluated as to" these items; it does not say that "negative impacts" must be "avoided." Rejected as contrary to the greater weight of the evidence in that Goal 12 and Standard 12.4 under it are renumbered under the current amendments as Goal 11 and Standard 11.4; otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that former Standard 14.1 has been transferred to Policy 7.1.1. under the current amendments. See 40 and 42, above. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that former designation as DRGR is the only reason why water quality and quantity issues arise; second, cumulative. Cumulative. First two sentences, cumulative; rest, accepted. First two sentences, accepted; rest, cumulative. First sentence, unclear which fact is "in dispute"; rest, accepted. (The AC amendment property probably would not be developed as a producing wellfield.) First sentence, accepted; second, cumulative. First two clauses of first sentence, accepted; rest, conclusion of law. First sentence, cumulative; rest, accepted. First sentence, accepted; second, conclusion of law. 55.-56. Cumulative. 57.-59. Accepted. First two sentences, accepted; rest, cumulative. Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, third and fourth sentences, accepted; rest, cumulative. First sentence, argument; rest, accepted. Accepted. 65.-66. In part, cumulative; otherwise, accepted. 67.-70. Accepted. First sentence, argument; middle sentences, accepted; penultimate sentence, rejected as contrary to the greater weight of the evidence in that he made no blanket concession, instead conditioning interception on water table levels; last sentence, accepted. First sentence, rejected as contrary to the greater weight of the evidence (that there's no "realistic way" "you" can do it); rest, accepted. 73.-74. Cumulative. Accepted. Cumulative. Accepted; subordinate and unnecessary. Cumulative. Beginning, cumulative; last sentence, subordinate argument. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that the influence of additional pumping has not been analyzed; last, accepted. Accepted. First two sentences, conclusion of law; last, accepted. Subordinate argument. First sentence, conclusion of law; second, accepted; third, rejected as contrary to the greater weight of the evidence in that the "performance standards" say to maintain current protection and expand protection "to encompass the entire area." Accepted. (However, it is far from clear that the BMP's referred to in Policy 1.2.2 are the same ones referred to in this proposed finding.) Accepted. 87.-88. Subordinate argument. Cumulative or subordinate argument. Unclear what is meant by "several generations of numbers." Otherwise, cumulative. Cumulative. Accepted but subordinate. Accepted. (However, he also raised the question that the County's analysis did not include acreage in other mixed land use categories that allow light industrial.) 94.-95. Accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence in that they conceded need is not based exclusively on resident and seasonal population, not that it is not based at all on it; third, accepted. First sentence, accepted; rest, subordinate argument. Accepted. Accepted. (Nor was there testimony that there is a need based on population.) Accepted. First sentence, accepted; second, conclusion of law, cumulative, and rejected as contrary to the greater weight of the evidence in that there was evidence of other motivations for providing the information as well. Accepted. (However, the analysis was limited to Orlando, and Nelson's method resulted in no need found.) Subordinate argument; cumulative. Subordinate argument. Accepted. (As to third sentence, neither did any other witness.) 106.-107. Accepted. Last sentence, subordinate argument; penultimate, rejected as contrary to the greater weight of the evidence (or, at least, unclear); rest accepted. Cumulative. 110.-113. Accepted. Cumulative. First sentence, conclusion of law; second, accepted as an excerpt from the dictionary, but argument and conclusion of law that it is the "plain meaning" of the word "need," as used in 9J-5. (Also, citation to Joint Exhibit 11, p. 9, is not understood.) Argument and cumulative. 117.-118. Accepted. 119.-120. Conclusion of law, argument and cumulative. 121. Last sentence, accepted. (It is not clear from the evidence that the designation of the property as "Panther Priority 2" on Lee Exhibit 42, introduced by RGMC, means that the County has identified it as being "in need of conservation.") Rest, conclusion of law, argument and cumulative. 122.-126. Conclusion of law and cumulative. To the extent that accepted proposed findings are not essentially incorporated into the Findings of Fact of this Recommended Order, they were considered to be either subordinate or otherwise unnecessary. COPIES FURNISHED: David Jordan, Esquire Deputy General Counsel Bridgette Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Timothy Jones, Esquire Thomas L. Wright, Esquire Assistant County Attorney Post Office Box 398 Fort Myers, Florida 33902-0398 Thomas W. Reese, Esquire 2951 61st Avenue So. St. Petersburg, Florida 33712 Elizabeth C. Bowman, Esquire Connie C. Durrence, Esquire Hopping Boyd Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Russell P. Schropp, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Charles J. Basinait, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Kenneth G. Oertel, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Neale Montgomery, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Steven C. Hartsell, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Thomas B. Hart, Esquire Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Post Office Box 2449 Fort Myers, Florida 33902-2449 Michael J. Ciccarone, Esquire Goldberg, Goldstein, & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902 Greg Smith, Esquire Governor's Legal Office The Capitol - Room 209 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission The Capitol - Room 2105 Tallahassee, Florida 32399-0001
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order determining Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2004.
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue The issue in these cases is whether amendments to the City of Stuart's comprehensive plan, designated amendments 97-S1, 97-1, 98-R1, and 98-ER1 by the Department of Community Affairs, are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Board of County Commissioners of Martin County (hereinafter referred to as "Martin County"), is a political subdivision of the State of Florida. Petitioner, 1000 Friends of Florida, Inc. (hereinafter referred to as "1000 Friends"), is a Florida not-for-profit corporation. The corporate purpose of 1000 Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. Respondent, City of Stuart (hereinafter referred to as the "City"), is a municipal corporation located within Martin County. Respondent/Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). No evidence concerning Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., was presented. Standing. Martin County owns real property located within the jurisdiction of the City. Although Martin County is also an "adjoining local government," the evidence failed to prove that the amendments at issue in these cases will produce "substantial impacts" on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within Martin County's jurisdiction. There has been a negative impact on Martin County's ad valorem tax base by the annexation of properties formerly under its jurisdiction. Those impacts, however, were caused by the annexation of the properties and not by the amendments at issue in this case. Additionally, those impacts did not cause any need for "publicly funded infrastructure." There may also be some impact as a result in the change in land use designations for some of the annexed property. Martin County's conclusion about the extent of the increase in commercial uses, however, was not supported by the evidence. The evidence also failed to prove that any of the text amendments at issue in these cases will have a negative impact on Martin County's need to provide publicly funded infrastructure. The evidence also failed to prove that the reduction of land subject to Martin County's municipal service taxing district and any resulting decrease in taxable values with the district will cause Martin County to provide additional publicly funded infrastructure. Finally, the evidence failed to prove that Martin County has designated any areas "for protection or special treatment within their jurisdiction" or that there will any "substantial impact" on such areas. Martin County made oral and written comments to the City during the adoption of the amendments at issue in these cases. 1000 Friends, since its formation, has had approximately 6,000 members in Florida. Members from Martin County and the City have totaled approximately 835 and 235 persons, respectively. Martin County and City members constitute a substantial percentage of 1000 Friends' total membership. 1000 Friends' corporate purposes include the representation of its members in legal and administrative proceedings involving the Act. 1000 Friends' litigation committee specifically authorized its participation in these proceedings. The type of relief sought by 1000 Friends in these cases is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made written comments to the City during the adoption of certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Martin County and 1000 Friends are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. 1000 Friends' standing is limited, however, to standing to challenge certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and text amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., failed to prove its has standing to participate in this proceeding. General Information About Martin County and the City. Martin County is a relatively small county located in the central southeast portion of Florida. Martin County is abutted on the north by St. Lucie County, on the west by Lake Okeechobee and a small portion of Okeechobee and Glades Counties, on the south by Palm Beach County, and on the east by the Atlantic Ocean. Martin County has a population of approximately 118,000 permanent residents. The population increases by 32 to 34 percent during the fall and winter. Martin County has the third highest per capita income in Florida. There are four municipalities in Martin County, including the City. The City is located on the Atlantic Ocean at the mouth of the St. Lucie River, which divides the City into two land masses. Most of the City is located south and east of the St. Lucie River. A small part of the City is located just to the north of the St. Lucie River. The north and south portions of the City are connected by the Roosevelt Bridge. The City is connected to Palm City to the west by the Palm City Bridge. The City has a population of approximately 14,000. During the day the population of the City increases significantly to an estimated population of between 25,000 and 30,000. Because of the City's relatively small population and the large influx of persons traveling to the City during the day, the City has a need for a significant amount of ad valorem taxes. More than half of the City's ad valorem property taxes comes from commercial property located in the City. In November 1996 commercial land use in the City accounted for approximately 24 percent of the City's land area. The City is the only full-service incorporated municipality in Martin County. It is the county seat for Martin County and serves as the center of legal, medical, social, commercial, and governmental activities in Martin County. The City has recently characterized itself as follows: For most of its history the character of Stuart was one of low to moderate intensity development in a waterfront community, with a small town feel. A four-story height limit and 10-unit density limit for most residential building were the two main forces that continue this character. In addition, Stuart has long been a hub for Martin County, home to many public and private institutions and businesses. As a result, the percentage of commercial, institutional, and public land in the City was higher than it would be in a city that did not serve as a hub. This role was evident in 1991, and a balance between the residential needs of the citizens of Stuart and the sometimes competing, sometimes complementary needs of those hub-related land uses seemed to drive the 1991 Future Land Use Element. It was recognized at Plan adoption that Stuart was near build-out, and barring further major annexations, would have limited vacant land remaining for new development. City's Evaluation and Appraisal Report, Martin County Exhibit 11 at page 33. Prior to 1997, approximately 2,800 acres of land were located within the jurisdiction of the City. Compared to the rest of Martin County, the City is relatively modest economically. Per capita income in the City is approximately 80 percent of the Martin County-wide average per capita income. Housing in the City consists of approximately 6,300 units. Two-thirds of the City's housing stock is multi-family. Approximately 92 percent of the multi-family housing stock is valued at less than $70,000.00. Approximately 69 percent of the other third of the City's housing stock, which consists of single-family housing, is valued at less than $70,000.00. The median value of owner-occupied housing in the City has been growing at a much slower rate than Martin County, neighboring counties, and the State as a whole. Between 1980 and 1990, the median value of owner-occupied housing in the City increased 56 percent while in Martin County the median value increased 112 percent, in Indian River County 69 percent, in Palm Beach County 77 percent, in St. Lucie County 66 percent, and in the State of Florida 68 percent. Because of the relatively low value of the City's housing stock, ad valorem taxes generated from housing is relatively low. The U.S. 1 Corridor. One of the main thoroughfares in Martin County is United States Highway 1, "Southeast Federal Highway" (hereinafter referred to as "U.S. 1"). U.S. 1 runs north-south through the City. It crosses the St. Lucie River via the Roosevelt Bridge. Land located within unincorporated Martin County along U.S. 1 north of the Roosevelt Bridge almost to the St. Lucie County line is mostly developed or approved for development. Development includes major retail stores such as Target, Sports Authority, Barnes & Noble Bookstore, Office Max, Marshall's, Service Merchandise, PetSmart, Home Depot, Lowe's Home Improvement Center, and grocery stores. There are also many smaller retailers located in strip commercial shopping centers. Most of the development has been permitted during the past five to six years by Martin County. The area to the west and northwest of property annexed by the City north of the Roosevelt Bridge during 1997 and 1998 includes Treasure Coast Mall, strip shopping centers, offices, restaurants, and single-family housing at a density of four to five units per acre. The area to the east and northeast of the property annexed by the City north of the Roosevelt Bridge includes single-family housing at a density of four units per acre, multi- family housing, and commercial and industrial property. The area to the north of the property annexed by the City north of the Roosevelt Bridge includes a development of regional impact known as "West Jensen." West Jensen runs from Jensen Beach Boulevard north to the St. Lucie County line. By 2003, when the project is projected to be fully developed, West Jensen will include 260,000 square feet of limited industrial space, 729,000 square feet of general commercial space, 23,000 square feet of limited commercial space, 235,000 square feet of office space, 200 hotel rooms, 931 residential units, and four golf courses. The area to the immediate south of the City is fully developed. Along U.S. 1 there are large shopping centers, restaurants, car dealerships, strip shopping centers, single-family housing of four to five units per acre, and condominiums. The Martin County Airport abuts U.S. 1 on the east. The area to the west of the City, Palm City, is fully developed. Growth of the City Through Annexation. To the extent that the City grew during the 1970's, it did so through annexation. Subsequent to the 1970's, however, the City turned from annexation and focused on redevelopment of the City's downtown area and the eastern part of the City. Between 1988 and November 1996, the City only annexed 298 acres in 30 annexations. This amounted to an increase of only 18 percent in the geographic size of the City. Subsequent to late 1995, the City shifted its policy back to annexation as a means of growth. Of the 30 annexations the City was involved in between 1988 and November 1996, 19 took place in October 1995. In approximately 1996, the City performed an analysis of its projected revenues and expenditures through the year 2003. The City projected that its revenues would be less than its expenditures. Based upon more recent projections, which take into account recent City annexations, the City has projected that its revenues and expenditures should be about the same for the next eight to nine years. The City has projected that its revenues will increase as a result of ad valorem and sales taxes and other revenues which should be generated from the newly annexed properties. During the Spring of 1997, the City received a number of requests for voluntary annexation pursuant to Chapter 171, Florida Statutes. These requests were accepted by the City and the first 16 parcels were annexed in the Spring of 1997. During 1998, another 27 parcels were annexed through voluntary annexation. Between the spring of 1997, and the end of 1998 the City annexed a total of almost 1,200 acres, increasing the geographic area of the city by 48 percent. The City annexed 254.8 acres in 1997 and 934 acres in 1998. The first requests for voluntary annexations began shortly after Martin County determined that certain roads had no more capacity to sustain further growth. As a consequence of this determination, Martin County imposed a moratorium on new development that would impact U.S. 1 north of the Roosevelt Bridge and the area west of the City on the other side of the Palm City Bridge. Some of the parcels annexed by the City in 1997 and 1998, could not be developed because of the transportation concurrency problem Martin County determined it had. Although there was no direct testimony from owners of parcels annexed by the City during 1997 and 1998, as to the reason they sought voluntary annexation of their property by the City, it is clear that at least some of the voluntary annexations were influenced by Martin County's moratorium and the hope of property owners that the City would take sufficient actions to resolve the transportation concurrency problem on U.S. 1 to allow owners to develop their property. More significantly, the annexations were probably influenced by a perception of property owners that obtaining approval for development from Martin County was a more difficult process generally than obtaining approval through the City. During 1997, the level of service (hereinafter referred to as "LOS") standard selected by Martin County for roads under its jurisdiction was a LOS D. While the City ultimately modified its LOS for roads impacted by development of some of the parcels annexed during 1997 and 1998, the evidence failed to prove that the City's modifications were not based upon reasonable planning principles. The 1997 Small Scale Amendments. The City did not determine specifically how the 16 parcels it annexed during 1997 would impact the City of Stuart's Comprehensive Plan (hereinafter referred to as the "City's Plan") before it accepted the voluntary annexations. Pursuant to Section 171.062(2), Florida Statutes, the 16 parcels the City annexed in 1997 remained subject to the Martin County Comprehensive Plan (hereinafter referred to as the "County Plan") and Martin County's land development regulations until the City amended the City's Plan to incorporate the parcels into the City. In particular, the parcels remained subject to the County Plan until the City amended the City's Plan to assign appropriate land uses to the annexed parcels. Therefore, as the parcels were annexed, the City undertook efforts to amend the City's Plan to assign appropriate land use designations to the parcels. The first nine of the 16 parcels annexed by the City during 1997 took place on September 8, 1997. The parcels were annexed pursuant to the voluntary annexation procedure of Section 171.044, Florida Statutes. Each of the nine parcels consisted of less than ten acres of land. Simultaneously with the annexation of the parcels, the City adopted ten small scale amendments to the Future Land Use Map (hereinafter referred to as the "FLUM") of the City's Plan assigning land use designations under the City's Plan to the parcels. The small scale amendments adopted by the City on September 8, 1997 (hereinafter referred to as "1997 Small Scale Amendments"), were designated Amendments 97S-1 by the Department. The Department did not, however, review the amendments because they constituted small scale amendments exempt from review by the Department pursuant to Section 163.3187, Florida Statutes. On October 8, 1997, Martin County filed a Petition for Formal Administrative Hearing with the Division of Administrative Hearings contending that nine of the 1997 Small Scale Amendments were not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. The Petition was designated Case No. 97-4582GM. 1000 Friends did not challenge the 1997 Small Scale Amendments or intervene in Case No. 97-4582GM. Martin County alleged that the 1997 Small Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with Sections 163.3187(c)(1)(c) [sic] and 163.3187(c)(3)(c) [sic], Florida Statutes; They are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. The land use designations assigned to the parcels to which the 1997 Small Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. In two instances, the Kornbluh and Luce properties, the City's land use designations were virtually the same as Martin County's. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Small Scale Amendments relate and the rationale for the land use designations assigned to the parcels by the City: Kornbluh property (Parcel 1) This parcel consists of 1.4 acres. In the County, approximately half of the parcel was designated commercial/residential (COR), and the other half commercial. The parcel is surrounded by commercial land use to the north, south, east and west, and a portion of the western boundary abuts existing developed low density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1482-97. There is no substantive difference between the County's land use designation for the Kornbluh property and the City's land use designation. The same types of uses are permitted in both, such as gas stations, restaurants, bars, professional offices, veterinary offices, and other retail and commercial uses. 1st Christian Church property This parcel consists of approximately 2.8 acres and has an existing church on the property. In the County, the land use designation was low density residential. The property abuts some commercial property, some vacant property that was low density residential in the County but which has been changed to neighborhood special district in the City, a mobile home park, and some vacant land designated a medium density residential. Because the land has an existing church on the property, the City determined that institutional was a more appropriate land use designation. Thus, the City adopted an ordinance giving the property a land use designation of institutional pursuant to Ordinance No. 1494-97. City Cemetery property (Parcel 7) This parcel consists of 2.06 acres. Part of the property is used as a cemetery and the other part is vacant. In the County, the land use designation was commercial general. The City has given that part of the property that is used as a cemetery a land use designation of institutional pursuant to Ordinance No. 1501.97 and the vacant part a designation of commercial pursuant to Ordinance No. 1502.97. The City Cemetery property is at the intersection of Colorado Avenue and Monterey Road which is one of the most developed intersections in all of Martin County. The property is surrounded by commercial development and also a mobile home park. Luce property (Parcel 8) This parcel consists of approximately 4 acres. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1506-97. There is no difference between the City's and County's land use designation. The City considered a commercial land use designation as appropriate for the Luce property based on the existing use of the property and the surrounding land uses. Specifically, half of the property is currently used as a produce market and the property abuts commercial land use to the north and to the west. To the east, it abuts the old City landfill which is currently closed and to the south it abuts the Martin County jail. Mush property (Parcel 9A) This parcel consists of approximately 3 acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1509-97. The City considered the commercial land use designation as appropriate for the Mush property because it is fully developed as a contractor's showcase office. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. The City's land use designation of commercial is more restrictive than the County's land use designation of industrial. The County's industrial designation allows both industrial types of uses and commercial uses, such as a gas stations, professional offices, retail buildings, etc. The City's land use designation of commercial does not allow industrial uses. Treasure Coast Auction House property (Parcel 9B) This parcel consists of approximately 5½ acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1512-97. The City considered the commercial land use designation as appropriate for the Treasure Coast Auction House property because it is fully developed as a Scotty's store. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. As explained above in the findings of fact regarding the Mush property (9-A), the City's land use designation of commercial is more restrictive than the County's land use designation of industrial. Hospice property (Parcel 10) This parcel consists of approximately 10 acres. In the County, the land use designation was half low density residential and half commercial. The City has given it a land use designation of institutional pursuant to Ordinance No. 1515-97. The Hospice property is developed as a hospice facility and the owners have plans to expand the facility. The property abuts Indian Street, which is an existing two-lane facility which will become a four-lane facility. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Bailey property (Parcel 11) This parcel consists of approximately 10 acres and is currently vacant. In the County, the land use designations was half low density residential and half commercial limited. The City has given it a land use designation of commercial pursuant to Ordinance No. 1519-97. The Bailey property abuts Indian Street, which is an existing two-lane road which will become a four-lane road. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Since it is a commercial corridor, the City considered the commercial designation on the property to be more appropriate than low density residential. Armellini property (Parcel 12) This parcel consists of approximately 1.2 acres. In the County, the land use designation was industrial and the City has given it a land use designation of commercial pursuant to Ordinance No. 1522-97. The Armellini property is on the corner of U.S. 1 and Indian Street and is in close proximity to other commercial development. The types of uses permitted by the City's commercial category is similar to the types of uses allowed by the County's industrial category, such as gas stations, office buildings, restaurants, and bars. The 1997 Large Scale Amendments and the Future Land Use Element Amendment. On December 7, 1997, the City adopted an amendment to the text of the Future Land Use Element (hereinafter referred to as the "FLUE") of the City's Plan. This amendment added a new land use designation to the City's Plan: "Neighborhood/Special District." The amendment also added goals, objectives, and policies concerning the new land use category. The newly created Neighborhood/Special District allows mixed land uses, including neighborhood commercial, office, residential, and recreational. Mixed residential and non- residential uses either in the same building or on the same site are required for a Neighborhood/Special District. A Neighborhood/Special District must have at least 30 percent residential uses and at least ten percent non-residential (excluding recreational) uses. Parking must be clustered in separate pockets rather than located in one expanse, and pedestrian interconnections must be used. On December 8, 1997, the City annexed seven parcels of property by voluntary annexation. On the same date the City adopted nine FLUM amendments assigning land use designations to the annexed property consistent with the City's Plan. Each of the parcels to which the FLUM amendments applied consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The nine large scale amendments to the FLUM and the FLUE amendment adopted by the City in December 1997 (hereinafter referred to as "1997 Large Scale Amendments and the "FLUE Amendment," respectively), were designated Amendment 97-1 by the Department. The Department reviewed the 1997 Large Scale Amendments and the FLUE Amendment. In a Statement of Intent issued February 9, 1998, the Department found the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance." The Department's determination was based upon its conclusion that the new land use category and existing non-residential land use categories applied in the 1997 Large Scale Amendments lacked a density/intensity standard. On February 17, 1998, the Department filed a Petition of the Department of Community Affairs with the Division of Administrative Hearings. The Petition was designated Case No. 98-0794GM. Martin County was granted leave to intervene in Case No. 98-0794GM by Order Granting Intervention entered March 11, 1998. Martin County challenged the FLUE Amendment and the 1997 Large Scale Amendments. Martin County alleged that the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They can not be reasonably implemented; They cannot be accommodated by existing and planned infrastructure; They fail to establish intensities of use; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; and They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. 1000 Friends did not challenge the 1997 Large Scale Amendments or the FLUE Amendment. Nor did 1000 Friends intervene in Case No. 98-0794GM. The land use designations assigned to the parcels to which the 1997 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Hendry property (Parcel 3) This parcel consists of approximately 7½ acres. The property contains an existing fully developed office warehouse, and in the County the land use designation was commercial general. The parcel abuts commercial property to the north, south, and west, and to the east it abuts a mobile home park as well as a conservation easement within a walled, gated residential development. Because the existing use was a warehouse, the City determined that a more appropriate land use designation would be industrial and suggested this land use to the owner. The City adopted the industrial land use designation pursuant to Ordinance No. 1488-97. With regard to the Hendry property, there is no difference between the County's land use designation of commercial and the City's land use designation of industrial. The existing office warehouse on the property is permitted both in the County's commercial designation. Millenium property (Parcel 4) This parcel consists of approximately 24½ acres and is vacant. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1491-97. There is no difference between the County's commercial land use designation and the City's commercial land use designation. Wacha property (Parcel 6) This parcel consists of approximately 47 acres. In the County, the land use designation was part mobile home, part low density, part medium density, and part industrial. The owner of the property approached the City with the idea of building a mixed use village on the property. The City was supportive of this idea and worked with the Treasure Coast Regional Council to develop a new land use category, neighborhood special district, as well as refine the site plan to create the mixed use village concept. The neighborhood special district land use category was adopted pursuant to Ordinance No. 1498-97. Part of the property that was originally designated industrial in the County was designated commercial in the City pursuant to Ordinance No. 1497-97. The neighborhood special district land use category will allow the Wacha property to be developed as a traditional neighborhood development project. The proposed development will include a town square area with shops and restaurants on the ground floor, apartments on the second floor, and parking behind the buildings to create a pedestrian-friendly thoroughfare. The development also includes a home office district where people can live and work in the same building. The development also proposes a single family residential neighborhood clustered around a common green with garages to the rear, and the building set with front porches on the street. The City and County's land use designation for the Wacha property differ significantly. The City's land use designation requires a mix of uses, with not less than 30% residential and not less than 10% commercial or non-residential development within a given property. The County's land use designations are exclusive, so that each specific property can only be used for mobile home park or light industrial or medium density residential or low density residential. The County would not permit a mixed use development on this property. The Wacha property is part of the City's Community Redevelopment Area. The City determined that the neighborhood special district land use designation would further the intent and purpose behind the Community Redevelopment Area which is to encourage redevelopment of blighted areas. Dubner North property (Parcel 13), Republic Industries property (Parcel 14), Dubner South property (Parcel 15) The Dubner North parcel consists of approximately 48 acres, the Republic Industries property consists of approximately 11½ acres, and the Dubner South property consists of approximately 56 acres. In the County, the land use designation for each of the properties was industrial. The City has given the Dubner North property a land use designation of part commercial pursuant to Ordinance No. 1525-97 and part industrial pursuant to Ordinance No. 1526-97, the Republic Industries property a land use designation of commercial pursuant to Ordinance No. 1529-97, and the Dubner South property a land use designation of commercial pursuant to Ordinance No. 1532-97. The Dubner North, Republic Industries, and the Dubner South properties are bound by the railroad tracks to the east. To the north, south, and west, the properties are surrounded by either County industrial or commercial future land uses or City commercial land uses. The Remedial Amendments. Subsequent to the opening of Case No. 98-0794GM, the Department and the City entered into a Stipulated Settlement Agreement pursuant to Section 163.3184(16), Florida Statutes. Martin County declined to enter into the Stipulated Settlement Agreement. The City agreed to adopt remedial amendments which included text descriptions of various land use categories, including the Neighborhood/Special Districts category, and a table setting for residential densities and commercial intensities for land use categories created in the City's Plan. On August 24, 1998, the City adopted remedial amendments consistent with the Stipulated Settlement Agreement (hereinafter referred to as the "Remedial Amendments"). The Remedial Amendments were adopted by Ordinance No. 1646-98. The Remedial Amendments, designated Amendment 98-R1 by the Department, were determined to be "in compliance" by the Department. Upon the adoption of the Remedial Amendments and the determination that the Remedial Amendments were "in compliance," the parties in Case No. 98-0794GM were realigned as required by Section 163.3184(16)(f)1, Florida Statutes, to reflect that Martin County was challenging the Department's conclusion that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments, were "in compliance." Martin County also filed a Petition for Formal Hearing challenging the Department's determination that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments were "in compliance." That Petition was filed with the Division of Administrative Hearings on December 17, 1998. The Petition was designated Case No. 98-5501GM. 1000 Friends did not challenge the Remedial Amendments. Nor did 1000 Friends intervene in Case No. 98-5501GM. I. The 1998 Large Scale Amendments. Between April 13, 1998, and June 22, 1998, the City annexed 16 large parcels through voluntary annexation. On August 24, 1998, the City adopted 33 FLUM amendments assigning land use designations to the newly annexed parcels consistent with the City's Plan. Eleven of the FLUM amendments were small scale amendments pursuant to Section 163.3187, Florida Statutes (hereinafter referred to as the 1998 Small Scale Amendments). The 1998 Small Scale Amendments were not reviewed by the Department even though they were submitted to the Department with the other 22 FLUM amendments. The parcels to which the other 22 FLUM amendments related consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The 22 large scale amendments adopted on August 24, 1998 (hereinafter referred to as "1998 Large Scale Amendments), were designated Amendment 98-1 by the Department. The Department reviewed the 1998 Large Scale Amendments and found them "in compliance." Martin County and 1000 Friends filed separate Petitions for Formal Hearing with the Department challenging the determination that the 1998 Large Scale Amendments were "in compliance." The Petitions filed by Martin County and 1000 Friends were filed with the Division of Administrative Hearings on December 17, 1998. The Petitions were designated Case Nos. 98- 5503GM and 98-5510GM, respectively. Martin County alleged that the 1998 Large Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. 1000 Friends alleged that the 1998 Large Scale Amendments were not "in compliance" because they were adopted without intergovernmental coordination. The land use designations assigned to the parcels to which the 1998 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1998 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Pulte Homes property (Parcel F3), Vista A property (Parcel F5), Gibson property (Parcel F6), and Debartolo property (Parcel F24) The Pulte Homes parcel consists of approximately 312 acres. In the County, the land use designation was low density residential and high density residential. The City has given it a combination of conservation, pursuant to Ordinance No. 1549- 97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97. The Vista A parcel consists of approximately 9 acres and is vacant. In the County, the land use designation was commercial/office/residential (COR) and high density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1546-97. The Vista B parcel consists of approximately 44 acres and is vacant. In the County, the land use designation was low density residential and the City has given it a land use designation of low density residential pursuant to Ordinance No. 1553- 97. The Gibson parcel consists of approximately 100 acres. In the County, the land use designation was low density and commercial general. That part of the property that was designated commercial in the County was given a commercial land use designation in the city pursuant to Ordinance No. 1557-97. That part of the property that was designated low density residential in the County was given a combination of low density residential and conservation (Ordinance No. 1558-97), and multi-family residential (Ordinance No. 1559-97) pursuant to Ordinance No. 1549-97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97 in the City. The Debartolo parcel originally consisted of 205.90 acres. However, a portion of the parcel has been reannexed by the City to cure the defects found by the circuit court. The County's land use designation was a mixture of low, medium and high density residential. The City has given it a combination of part neighborhood special district pursuant to Ordinance No. 1618-97, part low density residential and conservation pursuant to Ordinance No. 1620-97, and part multi-family and conservation pursuant to Ordinance No. 1622-97. These five parcels (Pulte, Vista A, Vista B, Gibson, and Debartolo) contain a series of wetlands that form a slough that drains through Arant's swamp, or Haney Creek, and into the St. Lucie River. In terms of long- range planning, the City believed it best to implement a series of greenways and flow-ways to interconnect those wetlands and preserve areas to help clean up a non-point source pollution problem that was occurring in the St. Lucie River. Thus, recommending an appropriate land use designation for these properties, the City considered the pattern of wetlands in the area that form the slough and proposed a conservation land use designation for parts of some of the properties. In addition, the City received a grant from the Florida Communities Trust to purchase 84 acres of Arant's swamp or Haney Creek. This area is south of the five properties described above. The 84 acres form a flow- way for all of the water flow that comes from north to south and ultimately into the St. Lucie River. The City is proposing to construct a greenway which would connect the wetlands in the five properties described above so that water can flow unimpeded into Arant's swamp and ultimately into the St. Lucie River. Those connections would be accomplished at site planning and connected under roadways with staged culverts so animals can travel along the sides and water can flow through the middle. Comparing the City and County's land use designations for these five parcels, the land use designations adopted by the City are more appropriate than the County's land use designations and will result in a better use of the properties. For instance, by changing some of the land uses from low density residential in the County to conservation in the City, the environmentally sensitive areas will be preserved in perpetuity. In addition, by changing the County's high density residential use for the Pulte Homes property to neighborhood special district in the City, the development will require a mix of uses including some commercial which will be interconnected in a pedestrian fashion to the existing single family home development which lies to the east. This will lessen the need for additional vehicular trips and encourage alternative forms of transportation. Stewart property (Parcel F11), Madyda property (Parcel F12), First Eastern Residential property (Parcel F13), First Eastern property (Parcel F14), and SK Partner's I property (Parcel F15) The Stewart parcel (F11) consists of approximately 15 acres of land and is vacant. In the County, the land use designation was a mix of low and medium density residential, and commercial/office/residential (COR). The City has given it a land use designations of multi-family residential pursuant to Ordinance No. 1576-97. The Madyda parcel (F12) consists of approximately 6½ acres. The County's land use designation was a mix of medium density residential and commercial/office/residential (COR). The City has given it a land use designation of commercial pursuant to Ordinance No. 1579-97. The First Eastern Residential parcel (F13) consists of 50 acres and is a fully developed low income housing project. The County's land use designation was medium density and low density residential. The City has given it a designation of multi-family pursuant to Ordinance No. 1582-97. The First Eastern parcel (F14) consists of 32.20 acres and is vacant. The County's land use designation was a mixture of Commercial pursuant to Ordinance No. 1585-97. The SK Partners I parcel (F15) consists of 18.94 acres and is vacant. The County's land use designations was commercial general. The City has given it a land use designation of commercial pursuant to Ordinance No. 1588-97. There is no difference between the City's and the County's land use designations. Sunbelt Partners/Stetson property (Parcel F17), Sunbelt Partners property (Parcel F18), SK Partners II property (Parcel F190) The Sunbelt/Stetson parcel (F17) consists of approximately 25½ acres, the Sunbelt Partners parcel (F18) consists of approximately 2.5 acres, and the SK Partners II parcel (F19) consists of approximately 38 acres. All three parcels are vacant. The City's original annexation of the Sunbelt Partners/Stetson parcels was invalidated by the circuit court. However, a portion of the parcel has been reannexed. The County's land use designation for the three parcels was primarily commercial, with a small amount of commercial/office/ residential. The City's gave all three parcels a land use designation of commercial pursuant to Ordinance Nos. 1615-97, 1612-97, and 1609-97. There is no real difference between the County's and the City's land use designations. Dubner East property (Parcel F22), Sellian property (Parcel F22), Dubner West property (Parcel F23) The Dubner East parcel consists of approximately 11.5 acres, the Sellian parcel (F22) consists of approximately 4 acres, and the Dubner West (F23) consists of approximately 10 acres. Dubner East is vacant, the Sellian property is developed as an office building and indoor assembly, and the Dubner West property is partially developed as an office building. The County's land use designation for each of the parcels was industrial. The City has given each a land use designation of commercial pursuant to Ordinance Nos. 1600-97, 1603-97, and 1606-97. The three properties abut County industrial land uses, although for the most part, the properties are developed as commercial uses. The properties also abut City commercial land uses. The City's land use designation is more restrictive than the County's because the County industrial allows both industrial and commercial uses while the City's commercial designation allows only commercial uses. The City's Evaluation and Appraisal Report Amendments. Consistent with Section 163.3191, Florida Statutes, the City conducted an Evaluation and Appraisal Report, including suggested amendments to the City's Plan. On August 24, 1998, simultaneously with the adoption of the 1998 Large Scale Amendments and the 1998 Small Scale Amendments, the City adopted amendments to all elements of the City's Plan (hereinafter collectively referred to as the "EAR Amendments") based upon the recommendations of the Evaluation and Appraisal Report. The EAR Amendments include density and intensity standards adopted as part of the Remedial Amendments to the Future Land Use Element of the City's Plan. The EAR Amendments revise the schedule for capital improvements and establish new concurrency requirements as part of the Capital Improvements Element of the City's Plan. The EAR Amendments set out the steps the City will take to coordinate the City's Plan and its implementation with other agencies and entities as part of the Intergovernmental Coordination Element of the City's Plan. The EAR Amendments revise LOS standards for transportation in the Transportation Element of the City's Plan The EAR Amendments were reviewed by the Department simultaneously with the 1998 Large Scale Amendments and found to be "in compliance." The EAR Amendments were designated Amendment 98-ER1 by the Department. The 1998 Small Scale Amendments were also submitted to the Department with the 1998 Large Scale Amendments and the EAR Amendments but were ultimately withdrawn by the City at the request of the Department. Martin County and 1000 Friends also challenged the EAR Amendments in their Petitions challenging the 1998 Large Scale Amendments filed in Case Nos. 98-5503GM and 98-5510GM, respectively. Martin County alleged that the EAR Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent with Chapter 9J-5, Florida Administrative Code. Martin County did not allege which specific elements of the City's Plan amended by the EAR Amendments were being challenged in its Petition. It merely alleged that "Stuart's comprehensive plan amendments" are not in compliance. In the Joint Proposed Order filed by Martin County and 1000 Friends, specific portions of the Intergovernmental Coordination Element (Policies A1.13 through A1.23, Policy A2.4, Policy A7.3, Objective 8, and Policies A8.1 through A8.11), the FLUE (Policies B1.2 through B1.4), and the Capital Improvements Element (the selection of LOS E) are cited. The specific objective and policies cited in the Joint Order are hereby incorporated into this Recommended Order by reference. Additionally, the Future Annexation Map adopted as part of the EAR Amendments by the City is cited in the Joint Proposed Order. The Future Annexation Map includes 8,000 additional acres which are projected to be annexed into the City by the year 2015. 1000 Friends' challenge to the EAR Amendments is limited to a challenge to the City's Intergovernmental Coordination Element. Data and Analysis. At the time that all of the amendments at issue in this proceeding were adopted there was more than adequate data and analysis to support all of the amendments. The data and analysis relied upon by the City in adopting the 1997 Small and Large Scale Amendments, the FLUE Amendment, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments was professionally acceptable. The testimony of Martin County's expert planner concerning data and analysis was not persuasive. That testimony was not based upon a complete review of the data and analysis relied upon by the City and the Department. The evidence presented by Martin County concerning data and analysis focused largely on the fact that the property to which the 1997 Small and Large Scale Amendments and the 1998 Large Scale Amendments related had been annexed before the accumulation of all the data and analysis relied upon in support of the amendments. That evidence was irrelevant because the Act and the rules promulgated thereunder do not govern annexations; they govern plan amendments and require that the data and analysis be available at the time a plan amendment is adopted and not at the time of annexation. Data and analysis were required for the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments, not to support the need for the annexed property, but to support the City's choice of land use classifications assigned to the annexed property. There were ample data and analysis to support the City's choices. Once the properties at issue in this proceeding were annexed consistent with Chapter 171, Florida Statutes, the City began the process of considering the amendments to the City's Plan necessary to accommodate the annexations and bring them under the City's Plan. While the evidence did prove that the City now has approximately 33 years of commercial property to meet the needs of the City during the 20 years of the City's Plan, there is no requirement in the Act or the implementing rules that a need for annexed property be present before annexation occurs. The commercial property located in the City as a result of the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments is not significantly different from the amount of commercial property which existed prior to the amendments. Most of the annexed property was designated commercial or industrial by the County Plan. Industrial uses under the County Plan include many of the same uses of commercial property under the City Plan. Under these circumstances, the City made the most reasonable planning decision by classifying the annexed property consistent with surrounding land uses and Martin County's prior land use designation of land use for the property. The City completed a needs analysis as part of its review and revision of the City's Plan through the EAR Amendments. That analysis was based upon data available at the time of the EAR Amendments. The data was also available at the time the 1997 Small Scale Amendments, the 1997 and 1998 Large Scale Amendments, the FLUE Amendment, and the Remedial Amendments were adopted. The City's needs analysis included an allocation of land uses to the land use categories designated in the City's Plan. Although the allocation of land resulted in an allocation of more commercial land than may be required during the life of the City's Plan, the evidence failed to prove that such a surplus results in any under allocation of land to other classifications. Approximately 150 acres of the property annexed by the City during 1997 and 1998 were re-designated commercial by the City. Eighteen of those acres have already been developed, leaving an additional 132 acres of commercial land in the City. The evidence failed to prove that this increase of acreage is significant. Evidence presented by Martin County as to the increase in commercial property was not persuasive. In actuality, the increase in property designated commercial as a result of City's annexations amounts to approximately 48 acres. There were a total of 35 parcels designated commercial by the City, including the 1998 Small Scale Amendments. Most of those parcels were already developed in whole or in part with commercial, commercial-like, or industrial land uses. The uses of property classified industrial are also substantially similar to the uses allowed for commercial to result in little discernable effect on the supply of commercial property in the City. The only vacant parcels assigned a land use designation of commercial by the City that were not classified commercial or industrial by Martin County were referred to at hearing as parcels 1, 11 F4, F7, F12, and F14. Parcel 1 consisted of 1.4 acres. Approximately half of parcel 1 was designated commercial and the other half was designated commercial/office/residential. At most, this amounts to an increase of .7 acres of commercial. Parcel 11 consists of ten acres, parcel F4 consists of nine acres, parcel F7 consists of 5.06 acres, parcel F12 consists of 6.67 acres, and parcel F14 consists of 32.20 acres. Half of parcel F14 was classified as commercial by Martin County. The evidence also proved that the possible intensity of use for the property annexed by the City during 1997 and 1998, when compared with the possible intensity of use under the County Plan is less under the City's land use classifications. Martin County's expert testimony concerning increases in intensity was not credible. That testimony was based upon small scale parcels 5, 10, and 11, and large scale parcels 6, F6, and F24. Parcel 5 is already developed as 1st Christian. Parcel 10 is partially developed and the testimony concerning Martin County's land use designation for the property was incorrect. For parcel 6, the Wacha property, the testimony by the Martin County expert concerning Martin County's land use designation for part of the property was incorrect. The portion of the property designated commercial by the City was classified as industrial by Martin County. For parcel F6, the Gibson property, only a fourth of the property was designated multi-family. The rest of the property was given a land use designation that is the same or less intense then that allowed by the County. For parcel F24, the Debartolo property, Martin County's land use designation was a combination of low, medium, and high density residential and not just low density residential as testified by Martin County's expert witness. Most of the property was low density residential under the County's Plan and remained low density residential under the City's Plan. The calculations concerning the increase in intensity of use made by Martin County's expert witness were flawed and not credible, as explained in findings of fact 123 through 125. Martin County's assertion that the Remedial Amendments are not supported by data and analysis because of the increase in intensity of commercial property is rejected. In addition to the question of data and analysis to support the land use classifications assigned to the annexed property by the City, Martin County has suggested that there is insufficient data and analysis concerning how public facilities will be provided to the annexed property. The evidence failed to support this assertion. At the time of the 1997 and 1998 Small and Large Scale Amendments the City did not perform a concurrency analysis. Concurrency analyses are required at the time of site plan review or other application for another development permit. Therefore, neither the Act nor the City's Plan required a concurrency analysis. A transportation analysis involves transportation planning for an extended period of time and not planning for individual parcels. Capital facilities and available capacity for a five-year period are looked at in a transportation analysis. Concurrency analyses, on the other hand, are performed on individual parcels of property at the time of proposed development of those parcels. Neither a transportation analysis nor a concurrency analysis is required when a local government designates a general land use classification for a parcel of property. Martin County has asserted that the City's decision to adopt a LOS E and to "maintain" the actual existing LOS for two segments of U.S. 1 and State Roads 707 and 714, both of which are projected to have LOS F within the next five years in light of the moratorium it has imposed on development along U.S. 1 supports its argument that the FLUM amendments are not supported by data and analysis. They assert that evidence presented by the City's expert transportation engineer cannot be considered data and analysis because it was prepared after the FLUM amendments. This assertion is rejected. While the analysis may not have been available, the data was. More importantly, the testimony of the City's expert engineer may be relied upon to refute Martin County's assertion that there existed a transportation concurrency problem at the time the FLUM amendments were adopted. Martin County based its conclusion on an outdated Florida Department of Transportation table adopted as part of the County's Plan. That table lacked a footnote that cautioned against anything other than very general reliance on the table. Martin County's assertions concerning transportation concurrency were also refuted by the more accurate analysis performed by the City's expert engineer. Based upon his analysis, which was unrefuted by credible evidence, there is in fact no LOS deficiency not addressed by the City's Plan. The difference between the LOS adopted by the City and Martin County's LOS is not significant. The reports of the City's expert transportation engineer were sufficient data and analysis to support the EAR Amendments to the Capital Improvements and Transportation Elements. The LOS selected by the City, LOS E, is the most efficient use of the City's arterial roadways under current conditions. The evidence failed to prove that there were inadequate data and analysis to support Policy A1.1 of the FLUE. The evidence failed to prove that there were inadequate data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms. Intergovernmental Coordination. In May 1997, the City notified Martin County that it was considering a series of voluntary annexation requests it had received. The City and Martin County have entered into formal and informal agreements dealing with the provision of a number of services, including water and sewer, emergency rescue, solid waste, and law enforcement. Impact fees are dealt with by interlocal agreement pursuant to which the City collects impact fees for library services, regional parks, and county roads on behalf of the Martin County. Following the City's notification to Martin County of the voluntary annexation requests it had received, City staff and the Director of Public Works for Martin County met to discuss the provision of water and sewer service to the annexed areas. An agreement was reached between the City and Martin County as to which entity would be responsible for water and sewer services to each parcel to be annexed. Discussions between City and Martin County staff concerning responsibility for maintenance of roads were also held, including discussions at meetings of the Metropolitan Planning Organization Technical Advisory Committee. The Metropolitan Technical Advisory Committee was established to provide for intergovernmental coordination in Martin County. Issues concerning road maintenance were resolved. Beginning essentially at the time of the notice to Martin County of the voluntary annexation requests the City had received, Martin County attempted to prevent the annexations. Although Martin County cooperated to resolve some of the problems that resulted from the annexations, Martin County prepared an emergency agenda item directing staff to evaluate the annexations and seek ways of preventing the annexations. Martin County staff reports concerning the proposed annexations indicated few problems that would result from the annexations. The reports were submitted to the City by Martin County. Martin County indicated, however, that it would be conducting further analysis on potential traffic impacts. Martin subsequently reported to the City that it had further concerns and would be attending a City scheduled workshop to be held in July 1997. No one from Martin County attended the workshop held in July or the workshop held by the City in September 1997. City staff reviewed all of Martin County's comments, notified the City Commission of the comments, and took the comments into consideration in making recommendations concerning the annexations and amendments to the City's Plan to the City. On September 16, 1997, the City notified Martin County of further requests for voluntary annexation. City staff thereafter attempted to schedule meetings with Martin County staff to discuss these annexations. Additional discussions were held with Martin County concerning utilities. These discussions resulted in agreements concerning the provision of utilities to the annexed parcels. Discussions concerning stormwater were also held between the City and Martin County. Transportation issues were discussed at Metropolitan Planning Organization Technical Advisory Committee meetings. Martin County wrote letters to the City and made oral comments concerning the FLUM Amendments. Martin County raised concerns over urban sprawl, concurrency, and intergovernmental coordination. Martin County also filed challenges to the City's annexations resulting in a number of civil actions between the City and Martin County. As a result of these actions and Martin County's attempts to prevent the annexations, relations between City and Martin County staff became strained. It became increasingly difficult for staff to work together to resolve common issues. In November 1997 Martin County sent a letter to the City expressing concerns over the late 1997 annexations involving urban sprawl and transportation concurrency. These comments were considered by the City. Martin County staff attended an August 1998 meeting at which the City adopted the FLUM Amendments relating to the late 1997 annexations. These comments were considered by the City. While the City and Martin County did not come to a consensus over all issues relating to the FLUM amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the diametrically opposing positions of the two governments concerning the annexations which gave rise to the amendments at issue in these cases, it is doubtful that any further coordination between the City and Martin County could have resolved the issues between the City and Martin County. Prior to adopting the EAR Amendments and the 1998 Large Scale Amendments, the City's planning consultant reviewed the FLUM amendments that had already been adopted, the EAR Amendments, and the additional FLUM amendments the City was considering. The consult obtained data from Martin County concerning population and traffic. Efforts to obtain information from Martin County, however, were by this time difficult. The City even had to result to a public records request from Martin County to obtain some information. Again, while the City and Martin County did not come to a consensus over all issues relating to the EAR Amendments and the 1998 Large Scale Amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the state of deterioration of the relationship between the City and Martin County by the time these amendments were considered and adopted by the City, it is doubtful that any further coordination between the City and Martin County would have resulted in any improvement in the EAR Amendments or the 1998 Large Scale Amendments. In addition to the fact that the intergovernmental coordination between the City and Martin County under the circumstances of this matter was adequate, any lack of coordination did not result in any substantial issues concerning the amendments to the City's Plan not being resolved. The evidence in these cases has not supported Martin County's or 1000 Friends' alleged deficiencies with the amendments. Evidence concerning intergovernmental coordination or the lack thereof before and during annexation of the parcels to which the FLUM amendments in these case relate was irrelevant. Nothing in the Act or the rules promulgated thereunder requires intergovernmental coordination on annexations. The City adopted an Intergovernmental Coordination Element as part of the EAR Amendments. The Element includes policies which relate to procedures for dealing with coordination concerning the development of the annexed areas. Those policies are quoted in the City's Proposed Order at finding of fact 149 and are incorporated herein by reference. The Intergovernmental Coordination Element adopted by the City does not meet the requirements of Section 163.3177(6)(h), Florida Statutes. It does, however, meet the requirements of Sections 163.3177(4)(a) and (10)(b), Florida Statutes, and Rule 9J-5.015, Florida Administrative Code. The requirements of Section 163.3177(6)(h), Florida Statutes, must be met by local governments no later than December 31, 1999. Pursuant to Section 163.3177(6)(h)4., Florida Statutes, the Department adopted Rule 9J-40, Florida Administrative Code, providing, in part, that the City submit an intergovernmental coordination element in compliance with Section 163.3177(6)(h), Florida Statutes, no later than June 1, 1997, and that the element be adopted no later than December 31, 1997. In a publication of the Department called the Summer 1998 Community Planning publication, the Department informed the City to ignore Rule 9J-40, Florida Administrative Code, and submit its intergovernmental coordination element no later than December 31, 1999. The City complied with this direction from the Department. The Department did not repeal Rule 9J-40, Florida Administrative Code. Although Section 163.3177(6)(h)4., Florida Statutes, authorizes local governments to comply with Section 163.3177(6)(h), Florida Statutes, earlier than December 31, 1999, the City has not opted to do so. Internal Inconsistency. Goal A of the FLUE provides that the City will "[m]aintain and enhance its small town waterfront character." Although the City has increased its size by 48 percent, it has not increased its "waterfront." None of the amendments to the FLUM at issue in these cases involve property located on the City's waterfront. The evidence also failed to prove that a 48 percent increase in the size of the City in and of itself is contrary to the City's small town character. Finally, the impact on the City's character is a result, not of the designation of land use categories for the annexed property, but from the annexation itself. Although annexation is the catalyst for the amendments being challenged in this proceeding, the fact of the annexation cannot be the issue. Policy A.3.2 of the FLUE provides that the City should "direct development to areas already served by adequate government utilities, services and schools . . . ." While some of the roads serving many of the annexed parcels were determined to be over-utilized, that over-utilization was based upon Martin County's LOS. Based upon the City's newly established LOS E, there are adequate road services for the annexed properties. The delivery of other utilities, services, and schools to the annexed properties has been coordinated between the City and Martin County or those services are already being provided. Objective B.3 of the FLUE provides that the City will discourage urban sprawl and continuous linear development along major roadways in order to achieve a compact urban form. While the annexed parcels are located along U.S. 1, their designated land uses pursuant to the amendments at issue are essentially consistent with their present uses or designated land uses. Little change in the form of development of the annexed parcels will occur as a result of the amendments. Therefore, the FLUM amendments do not increase linear development. Rather, they recognize it. As discussed, infra, the annexed properties do not constitute urban sprawl. As amended by the EAR Amendments, Objective B.1 of the FLUE provides that the City will "[d]iscourage urban sprawl by planning for urban infill and redevelopment of lands located within Stuart." The FLUM amendments constitute urban infill and are consistent with Objective B.1 as amended by the EAR Amendments. Objective B.3 of the FLUE requires a commitment of the City to the promotion of patterns of land use that are compatible and convenient to residents, businesses, and visitors, and the avoidance of the wasteful use of land. The evidence failed to prove that the FLUM amendments are inconsistent with this objective. Again, there is little difference in the uses of the property which is the subject of the FLUM amendments before and after their annexation. Policy A.8 of the Infrastructure Element of the City's Plan requires that the City will maximize the use of existing facilities and discourage urban sprawl through its annexation policy. Policy A.3.3, Objectives A.5, A.6, A.7, and A.9, and Policy A8.1 also provide similar guidance to the City. As discussed, infra, the FLUM amendments do not fail to discourage urban sprawl. The FLUM amendments also are not inconsistent with these provisions to the extent that they require the City to maximize the use of existing services. Policy A1.1 of the Housing Element of the City's Plan provides that the City must designate adequate residential land to accommodate projected need for housing. The most up to date analysis of existing population data suggests that there is adequate housing to meet the City's need for housing through the year 2015. The evidence failed to prove that anything about the amendments at issue in these cases are inconsistent with this policy. The evidence failed to prove that the amendments at issue in these cases are inconsistent with any provision of the City's Plan. The consistency of the foregoing goals, objectives, and policies with the City's Plan were the only ones specifically addressed in the Joint Proposed Order. The City also addressed the consistency of a number of other goals, objectives, and policies with the City's Plan. Those findings of fact (182-190, 193-195, 197, and 200-204) are hereby accepted and incorporated into this Recommended Order by reference. Urban Sprawl. The areas annexed by the City, while including some vacant land, are not located in a rural or predominately rural area. Instead, the annexed parcels are all located in an area designated in the County's Plan as the "Primary Urban Service Area." An independent evaluation of the properties confirms their urban location. The indicators of urban sprawl listed in Rule 9J- 5.006(5), Florida Administrative Code, do not apply to the annexed parcels when considered "within the context of features and characteristics unique to each locality." The testimony of Martin County's witnesses concerning the "linear pattern" of development evidenced by the annexed parcels failed to take into account the character of surrounding and abutting, unincorporated properties and the location of all the parcels within the "Primary Urban Service Area" established in the County's Plan. Testimony offered by Martin County concerning urban sprawl was also not credible because Martin County's expert witness did not complete the land use analysis of Rule 9J-5.006(5)(h) through (j), Florida Administrative Code, because she failed to evaluate local conditions and development controls. Natural Resources. The evidence did not prove that any of the amendments at issue in these case fail to adequately protect natural resources. Availability of Infrastructure. As explained, supra, the City and Martin County coordinated the continued provision of most public utilities and services to the annexed parcels. Continued water, sewer, emergency rescue, law enforcement, and solid waste disposal services for the annexed parcels were all coordinated between the City and Martin County. Water and sewer services and recreational facility needs were analyzed by the City and found to be adequate. The evidence failed to prove that any necessary infrastructure is not available or will not be provided by the City. The Future Annexation Map. The City's Evaluation and Appraisal Report included a Map of Future Annexation. The Map of Future Annexation identified a small area south of the City for future annexation over the next ten years. The areas actually annexed by the City during 1997 and 1998 involve a more extensive area than that identified on the Map of Future Annexation. The areas identified on the Map of Future Annexation were areas which the City believed it would likely desire to annex and did not take into account voluntary annexation. The Map of Future Annexation was not intended to exclude such voluntary annexations. The EAR Amendments also include a Future Annexation Area Map (hereinafter referred to as the "FAA Map"). The FAA Map identifies approximately 8,000 additional acres of land which the City may consider annexing through the year 2015. The FAA Map is not, however, intended to represent an area which the City intends to pursue for annexation. It simply identifies the maximum area within which the City intends to consider annexation. It is, in effect, intended as a limitation on annexations that the City would pursue. The evidence failed to prove that the FAA Map is not a reasonable boundary for the possible expansion of the City through the year 2015 by annexation. The State and Regional Plans. The evidence failed to prove that any of the challenged amendments are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes. The evidence failed to prove that any of the challenged amendments are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. The Strategic Regional Policy Plan for the Treasure Coast was not offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order dismissing Hospice Foundation of Martin & St. Lucie, Inc., as a party. IT IS FURTHER RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the 1997 Small and Large Scale Amendments, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of October, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 1st day of October, 1999. COPIES FURNISHED: Paul R. Bradshaw, Esquire Paul R. Bradshaw, P.A. 1345 Dupont Road Havana, Florida 32333 Gary K. Oldehoff, Esquire Martin County Attorney 2401 South East Monterey Road Stuart, Florida 34996 Terrell Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Post Office Box 5948 Tallahassee, Florida 32301 Robert C. Apgar, Esquire Yeline Goin, Esquire 902-A North Gadsden Street Tallahassee, Florida 32303 Carl Coffin, Esquire City of Stuart 121 South West Flagler Avenue Stuart, Florida 34994 Shaw Stiller, Assistant General Counsel Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Tim B. Wright, Esquire Louis E. Lozeau, Jr., Esquire Warner, Fox, Seeley, Dungey and Sweet, L.L.P. Post Office Drawer 6 Stuart, Florida 34995 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
