The Issue Whether amendments to Respondent, Lee County's (County), comprehensive plan, CPA2018-10014, adopted by ordinance on June 19, 2019, are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioners own and operate a business and own real property within the County, and each submitted oral and written comments to the County concerning the challenged 2019 Plan Amendments during the period beginning with the transmittal hearing and ending with the adoption of the 2019 Plan Amendments by the County. The County is a political subdivision of the state of Florida with the duty and responsibility to adopt and maintain a comprehensive plan under the Community Planning Act, sections 163.3161 et seq., Florida Statutes (the Act). Intervenor owns property and operates a business in the County, and provided oral comments to the County during the period beginning with the transmittal hearing and ending with the adoption of the 2019 Plan Amendments. Limerock Mining in Lee County Limerock mining has occurred in the County on a large scale since at least the 1970's. A significant deposit of this natural resource was found in the southeast portion of the County. The deposit of limerock was the largest mineable deposit in the state between the Lake Belt region of Dade County and the Brooksville area, and supplied the seven-county southwest Florida region with high-quality, DOT-grade limerock. Three large limerock mines and several smaller mines were approved by the County throughout the years, and were currently operating. These mines existed and operated exclusively in the Southeast Lee County planning community. The Southeast Lee County planning community was geographically shown on Map 16 of the Lee Plan, and was one of 22 planning communities identified in the Lee Plan. In addition to being shown on Map 16 of the Lee Plan, the Southeast Lee County planning community was subject to a series of goals, objectives, and policies under Goal 33 of the Lee Plan. Limerock mining was specifically addressed under Objective 33.1 and policies thereunder. Limerock mining in the County supplied a geographical area greater than the County itself, encompassing all or parts of seven counties in Southwest Florida. The areas were determined by the location of the mine and the costs associated with transport of material to job sites, as compared to other mines in Dade County and the Brooksville area. While the approval of a limerock mine may encompass several thousand acres, mining generally occurred in smaller phases consisting of five to twenty acres over an extended period of time. In a typical year, a limerock mine would excavate 20-25 acres. Land within an approved mine that was not in active mining was generally held as vacant or agricultural land. Land that has been mined transitioned to an open water body, often with vacant land around it to facilitate future uses such as residential or conservation. The extraction of this natural resource within a mining operation was a temporary use as the land went through a normal progression of vacant or agricultural use, then active excavation, then to an open water body, and potentially to some other use such as residential or conservation. The only permanent industrial use and activity at the mine was the rock crushing and processing area. The Original Lee Plan The County adopted its initial comprehensive plan under the 1989 version of the Act. The plan was found "not in compliance" by the state land planning agency at the time (DCA) and was referred to a hearing before DOAH. Prior to the hearing, the County, DCA, and numerous intervenors entered into a stipulated settlement agreement in 1989 that required the County to adopt various remedial plan amendments. Those remedial amendments included the adoption of a new water resources land use classification to be applied to the southeast area of the County, which would have a maximum density of one dwelling unit per ten acres (1du/10 ac) and other uses limited to agriculture, mining, and conservation. As ultimately adopted, the name of the future land use (FLU) classification was changed to DR/GR, and it was applied to uplands in the southeast area of the County. As previously noted, limerock mining was specifically identified as a permitted use throughout the DR/GR and remains a permitted use in the DR/GR to the present. The remedial amendments included the adoption of a generalized map of current limerock mining areas in the County that became known as Map 14 in the Lee Plan. Map 14 reflected mines already approved as of the date of its adoption. The remedial amendments also included the adoption of a series of 125 subdistrict maps as part of the future land use map (FLUM) series that would identify the allowable acreage in each subdistrict for the proposed distribution, location, and extent of generalized land uses based upon population projections for the year 2010. This map series became known as the Year 2010 Overlay. The stipulated settlement agreement also required the adoption of a policy that prohibited any development approvals for any FLU category that would cause the acreage total for any land use to be exceeded in any of the 125 subdistricts. Under the Year 2010 Overlay, limerock mining was not a specifically identified land use category, but acreage for mining was included under the "active agriculture" category while the processing facilities associated with the mines were identified under the industrial category. The remedial amendments were adopted by the County in 1990 and ultimately found "in compliance" with the Act. Between 1990 and 2010, the remedial amendments remained in the Lee Plan, although some changes were made to the Year 2010 Overlay that were relevant for the present case. Specifically, the Year 2010 Overlay proved to be cumbersome with its 125 subdistricts. In 1998, the map series for the 125 subdistricts was eliminated and replaced with a table, referred to as Table 1(b), that allocated acreages for various land uses to 22 "planning communities" identified by a separate map in the Lee Plan. Limerock mining remained under the active agriculture designation and allocations. These amendments were also found "in compliance" under the Act. Map 14 continued as originally adopted and showed mines that had already been approved in Lee County. The Lee Plan established 30 different land use categories in the FLU Element and FLUM. Of the 30 land use categories, 17 allow residential development, 22 allow commercial development, 12 allow industrial development, but only the DR/GR category allows limerock mining. Of the 22 planning communities identified in the Lee Plan, the DR/GR land use classification primarily exists in the Southeast Lee County planning community. Other planning communities that contain the DR/GR classification have policies that preclude approval of limerock mining. Thus, the Lee Plan only permits limerock mining in the DR/GR land use category in the Southeast Lee County planning community. In general, natural resource extraction, i.e., limerock mining, has always been a permitted use in the DR/GR land use category of the Lee Plan, and it remained so under the 2019 Plan Amendments at issue in this proceeding. The Lee Plan also contained an industrial land use category. Natural resource extraction is not permitted under the industrial land use category of the Lee Plan. Industrial land uses were addressed in Goal 7 of the Lee Plan, while natural resource extraction was addressed in Goal 10 of the Lee Plan. As discussed above, the Lee Plan contained an appendix known as Table 1(b). Uses other than residential were allocated under Table 1(b) into generic groupings by planning community, including commercial, industrial, passive and active agricultural, public, conservation, and vacant land. The County used Table 1(b) at the development order stage to ensure that there were adequate acres available for a particular project under the acreage allocations. The 2019 Plan Amendments did not change that process for limerock mines. 2010 Plan Amendments In 2010, the County adopted a series of plan amendments (2010 Amendments) that altered the Lee Plan's treatment of the Southeast Lee County planning community in general, and limerock mining in particular. The 2010 Amendments amended Table 1(b) by removing the limerock mining acreage from active agriculture and placing it in industrial. The 2010 Amendments amended Map 14 so that it was no longer the "generalized map of current limestone mining" required by the 1989 stipulated settlement agreement, but instead was a "Future Limerock Mining Overlay" that identified lands available for future limerock mining. However, all of the area shown on the map as available was already approved for mining. There was no land contained on the map that was not already associated with a previously approved mine. In addition, several mines were left off Map 14, including the Intervenor's. The 2010 Amendments adopted or amended policies in the Lee Plan that: (1) allowed rezonings for new and expanded limerock mines only in the areas identified on Map 14, and required a comprehensive plan amendment to add land to Map 14; (2) provided that new or expanded limerock mine development orders could not be approved if such approval caused the acreage allocations for "industrial" in Table 1(b) to be exceeded; (3) described the location for new and expanded mines shown on Map 14 as concentrated within the "traditional Alico Road industrial corridor"; (4) required a demonstration of "clear necessity" before allowing additional limerock mines in "less disturbed environments"; and (5) required the County to do a supply and demand analysis for limerock that addressed regional demand for the Southwest Florida region and the County's supply of limerock to meet that regional demand. The 2010 Amendments did not alter the land use category in which limerock mining could be approved. Under the 2010 Amendments, limerock mining was not permitted under the Industrial FLU category, but remained a permitted use only in the DR/GR category. Mr. Spikowski, the Petitioners' expert witness who served as the primary drafter of the 2010 Amendments pertaining to limerock mining, testified that much of the language contained in the 2010 Amendments was intentionally vague and ambiguous to allow "elected officials to use judgment under changed circumstances." Changes to the Lee Plan and Southeast Lee County Since 2010 In 2015, the County amended the Lee Plan with regard to the DR/GR in the Southeast Lee County planning community. Specifically, the County adopted the Environmental Enhancement and Preservation Communities (EEPC) Overlay, which allowed landowners within the DR/GR in Southeast Lee County to request greater density than 1du/10ac, if done as a planned development that incorporated certain preservation and enhancement strategies to facilitate the County's objective of restoring flow ways, habitat, and other environmental features in the DR/GR. Since adoption of the EEPC Overlay, several projects were approved by the County that have, or shortly will, convert large tracts of vacant and agricultural land to residential and conservation uses, thereby permanently removing these tracts from possible consideration for limerock mining. In addition, since the 2010 Amendments, the County acquired several large tracts of land in the Southeast Lee County planning community, which has taken additional lands "out of play" for future limerock mining. Two of these acquisitions were the result of lawsuit settlements between landowners and the County over mining rights after the adoption of the 2010 Amendments. A third lawsuit over mining rights affected by the 2010 Amendments remained pending against the County. Another large land acquisition of approximately 3,900 acres, known as Edison Farms, was made by the County in 2017 for public use and conservation purposes. Changes in development and conservation patterns in the Southeast Lee County planning community since 2010 represent significant changes that have reduced the amount of land available for limerock mining. Many of the changes in the development and conservation of lands in the affected area were the result of the County's permitting decisions under the EEPC Overlay, and its acquisition of several large tracts of land. The land currently available for potential mining was confined to several large tracts all located within the DR/GR area of the Southeast Lee County planning community. County Staff Implementation of the 2010 Amendments Since the adoption of the 2010 Amendments, County staff encountered significant issues in applying these amendments in actual practice. Brandon Dunn, the County's principal planner, testified that there were practical difficulties applying the language of the 2010 Amendments to a landowner's application to amend Map 14. The landowner's 2016 application was the first time County staff had occasion to apply the 2010 Amendments. Mr. Dunn explained that the County experienced a number of problems interpreting the 2010 Amendments and reconciling the 2010 Amendments with other portions of the Lee Plan, as well with the Lee County Land Development Code (LDC). Ultimately, County staff concluded that portions of the 2010 Amendments were vague and ambiguous, a conclusion that is supported by the testimony of Mr. Spikowski who drafted the language. Specifically, Mr. Dunn testified that County staff experienced the following problems interpreting and implementing various provisions of the 2010 Amendments: The meaning of the terms "more disturbed" and "less disturbed" lands; The meaning and intended location of the "traditional Alico Road industrial corridor"; The meaning of the term "regional demand"; and The meaning of the term "clear necessity." County staff concluded that these ambiguities and their experience showed that the clear and reasonable application of the 2010 Amendments was difficult, if not impossible. County staff consulted the data and analysis generated for the 2010 Amendments seeking guidance to interpret and apply the ambiguous portions of the 2010 Amendments and found none. Furthermore, that data and analysis was now 10 to 20 years old, and considered "dated" in light of other changes that County staff was aware had occurred in Southeast Lee County in the intervening time period. Accordingly, County staff identified the need to either amend portions of the 2010 Amendments or delete them. Based on policy direction from the Board of County Commissioners, and their experience, County staff proposed to delete portions of the 2010 Amendments. The reasons identified for deletion of portions of the 2010 Amendments were: (1) the County's LDC for mining was significantly strengthened, which resulted in a more rigorous and detailed review of mining applications; (2) since 2010, significant changes in land use patterns in the Southeast Lee County planning community reduced the land available for limerock mining; and (3) the addition of the EEPC Overlay to the Lee Plan committed large areas of land to residential and conservation uses. In addition, the County's first attempt to update the supply and demand analysis required every seven years under the 2010 Amendments demonstrated how the 2010 Amendments could be interpreted in different ways. A subsequent study by Stuart and a "peer review" analysis by Spikowski of all of the supply and demand analyses ultimately showed a lack of consistent methodology and results in the studies. The 2019 Plan Amendments On June 19, 2019, the County adopted the 2019 Plan Amendments that were the subject of this proceeding. Among other changes, the 2019 Plan Amendments rescinded or modified several provisions adopted by the 2010 Amendments. The changes: Eliminated Map 14, the Future Limerock Mining Overlay; Revised Table 1(b) by moving the acres identified for mining from the "industrial" allocation back to the "active agriculture" allocation where they were prior to the 2010 Amendments. The land identified for the industrial uses of a limerock mining operation, i.e., the rock crushing and processing facilities, was kept in the industrial grouping; Eliminated policies that tied allowable mining acreage to Table 1(b); Eliminated policies that tied new and expanded mines to the "traditional Alico Road industrial corridor"; Eliminated the requirement that the County perform a supply and regional demand analysis every seven years; and Eliminated the requirement to apply for a comprehensive plan amendment to amend Map 14 and to demonstrate a "clear necessity" to do so. In addition to the data and analysis described above, County staff reviewed the following data and analysis to prepare the 2019 Plan Amendments: The 2008 Dover Kohl Study, which included The Proposed Lee Plan Amendments for Southeast Lee County; Prospects for Southeast Lee County Planning for the Density Reduction/Groundwater Resource Area; Ecological Memorandum of the Density Reduction/Groundwater Resource Area; and Natural Resource Strategies for Southeast Lee County; The 1993 Henigar & Ray Study; The 2016 Waldrop Mining Study; The 1989 Stipulated Settlement Agreement; Chapter 12 of the County's LDC regulations; and Florida Statutes. Petitioners argued that this change caused the Lee Plan not to comply with the Act. However, the facts adduced at hearing do not support this contention. Neither Mr. Spikowski nor Mr. Stuart could cite any provision of section 163.3177 that required limerock mining to be identified or regulated as industrial, or that prohibited the treatment of portions of limerock mines as active agriculture. In addition, the evidence adduced at hearing showed that at any given time a limerock mine comprised multiple non-industrial land uses including agriculture, vacant land, conservation, open water bodies, and excavation. Only the small portion of a mine that contained the processing facilities and batch plants was devoted to industrial use throughout the life of the mine. Therefore, classifying portions of limerock mining acreage as active agriculture rather than industrial in Table 1(b) was reasonable, particularly when the small portion of the mine that contained the processing facilities and batch plants was classified and regulated as an industrial use under Table 1(b). The retention of those industrial acres in Table 1(b) in the 2019 Plan Amendments fulfilled the statutory requirement to show the distribution, location, and extent of industrial uses under the Lee Plan. Petitioners also argued that moving the limerock mining acres to the active agriculture grouping caused limerock mining to escape regulation. This argument was not persuasive since under the 2019 Plan Amendments, limerock mining continued to be regulated by the Lee Plan. FLU Element Policy 1.4.5 of the Lee Plan, which is now more stringent following the 2019 Plan Amendments, required groundwater modeling to occur at the time of zoning for a new limerock mine in order to ensure consistency with those requirements. The DR/GR classification established under Policy 1.4.5 did not allow industrial uses other than those associated with mining. FLU Element Goal 10 of the Lee Plan was specific to natural resource extraction including limerock mining regardless of the grouping in Table 1(b). Table 1(b) was still used by the County at the development order stage to ensure that there were adequate acres available for industrial land uses associated with a limerock mine. The 2019 Plan Amendments did not change that process. FLU Element Policy 1.7.6 of the Lee Plan still required that "[n]o development orders . . . will be issued or approved by Lee County that would allow the acreage totals for residential, commercial or industrial uses contained in Table 1(b) to be exceeded." The industrial uses in a mine would continue to be subject to this requirement. Chapter 12 of the LDC extensively regulated limerock mining even after the 2019 Plan Amendments. Chapter 12 of the LDC required monitoring of limerock mining even after the 2019 Plan Amendments. The Lee Plan never classified limerock mining as either an industrial or agriculture land use. Instead, it was identified as a specific activity separate from industrial, which was permitted only in the DR/GR category in the Southeast Lee County planning community. Mr. Dunn testified that the industrial acres allocated under Table 1(b) for other planning communities were generally available for more traditional industrial uses such as manufacturing or warehousing. He testified that leaving the limerock mining acres under industrial uses in Table 1(b) "can give the impression that those types of uses might be allowed within Southeast Lee County, which would create an [internal] inconsistency with the future land use category. The future land use categories out there [in Southeast Lee County] are primarily wetlands and DR/GR, and the industrial uses are not allowed within either of those categories." See Tr. p. 601. After adoption of the 2019 Plan Amendments, the Lee Plan remained based on the approved population projection for Lee County, and provided at least the minimum amount of land required to accommodate the medium population projections published by the Office of Economic and Demographic Research through the year 2030. No internal inconsistencies were created in the Lee Plan by the 2019 Plan Amendments. No internal inconsistency occurred by the County's removal of the requirement to conduct a supply and demand analysis for limerock every seven years. No other land use was required by the Lee Plan to undergo such an analysis. No internal inconsistency was created by the County’s elimination of the tie to the "traditional Alico Road industrial corridor," or to the requirement of "clear necessity" in order to place additional land on Map 14. No internal inconsistency was created by the County's reallocation of mining acres in Table 1(b) to the "active agriculture" category. Petitioners' expert Mr. Stuart pointed to several provisions of the Lee Plan that he believed were now internally inconsistent because of the 2019 Plan Amendments. However, his testimony did not demonstrate actual conflict with any of the cited provisions. After deletion of Map 14 and changes to Table 1(b), the Lee Plan would continue to show the general distribution, location, and extent of limerock mining for the 2030 Plan horizon. Further, the changes in the Southeast Lee County planning community over time, as well as the policy decisions by the County to incentivize conservation have limited the land available for limerock mining to certain identifiable tracts within Southeast Lee County. Map 14 was not required by the Act or the Lee Plan. There were numerous other provisions of the Lee Plan that a new mine would have to comply with in order to obtain approval. All these provisions allowed the County to properly monitor and regulate mining activities. Ultimate Findings Petitioners did not prove beyond fair debate that the 2019 Plan Amendments were not in compliance. The County's determination that the 2019 Plan Amendments were in compliance was fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity issue a final order determining that the 2019 Plan Amendments adopted by the County on June 19, 2019, are in compliance. DONE AND ENTERED this 16th day of June, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2020. COPIES FURNISHED: Matthew Donald Uhle, Esquire Law Office of Matthew D. Uhle, LLC 1617 Hendry Street, Suite 411 Fort Myers, Florida 33901 (eServed) Richard W. Wesch, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902-0398 Mark A. Trank, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902-0398 (eServed) Richard Barton Akin, Esquire Henderson Franklin Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 (eServed) Michael D. Jacob, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902-0398 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue Whether the Miami-Dade County Comprehensive Plan Amendment adopted by Ordinance 2018-109 on September 27, 2018 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1
Findings Of Fact The Parties and Standing Respondent, Miami-Dade County (“the County”), is a political subdivision of the State of Florida with the duty and authority to adopt and amend a local government comprehensive plan, pursuant to section 163.3167, Florida Statutes. The Limonar Petitioners are limited liability companies under the laws of the State of Florida whose principal places of business are in Florida. The Limonar Petitioners own property within the area affected by the Plan Amendment. Petitioner, Michelle Garcia, resides and owns property in the County near the area affected by the Plan Amendment. Petitioner, Tropical Audubon Society (“Tropical”), is an environmental organization in South Florida dedicated to conserving and restoring South Florida ecosystems, focusing on birds and other wildlife, as well as their habitats. Tropical owns property in the County. Each of the Petitioners submitted oral or written comments, recommendations, or objections concerning the Plan Amendment to the County during the time period beginning with the Plan Amendment adoption hearing and ending with the Plan Amendment transmittal hearing. The parties stipulated that Ms. Garcia’s substantial interests will be adversely affected by the Plan Amendment given that her property is located in the County near the area affected by the Plan Amendment. The Plan Amendment The Plan Amendment amends the Plan to allow an extension of State Road 835 (also known as the Dolphin Expressway) from its current terminus at Northwest (NW) 137th Avenue and NW 12th Street to the West Kendall suburban area of the County. The approximate 13-mile extension is planned as a six-lane expressway from its current terminus to Southwest (SW) 8th Street and SW 167th Avenue, then continuing as a four-lane expressway to connect with SW 136th Street in Kendall. The proposed extension is referred to herein as the “new corridor.” The Plan Amendment incorporates the new corridor on the County’s Future Land Use Map (“FLUM”), as well as the Transportation Element map series, including both the traffic circulation and Mass Transit subelements. Additionally, the Plan Amendment changes some existing, and adds several new, policies in the Land Use, Transportation (including Traffic Circulation and Mass Transit subelements), Open Space, and Intergovernmental Coordination Elements. The new corridor was first envisioned in 2012, when the Miami-Dade Metropolitan Planning Organization (“MPO”), since renamed the Transportation Planning Organization (“TPO”), added the southwest extension of SR-836/Dolphin Expressway to its Long-Range Transportation Plan (“LRTP”) as a “partially funded project.” “Partially funded” means that the TPO authorized the project to move forward for study—in the case of the new corridor, to undertake a Project Development and Environment (“PD&E”) Study—but that the project is not yet approved for construction funding. The LRTP describes the purpose and need for the new corridor as follows: The new extension will address existing highway congestion and enhance mobility in the fastest growing area of the county. The purpose of the SR- 836 (Dolphin) SW Extension is to: Improve system connectivity, Improve access to and from the area to major employment centers such as the MIA, the MIC, the Port of Miami, Downtown Miami, Doral, as well as educational and commercial centers within the study area, Provide north south expressway access to serve existing and future travel demand, Improve hurricane/emergency evacuation routes and travel times, Evaluate multimodal transportation opportunities to improve connectivity to the fast growing southwest area of Miami-Dade County, Evaluate the best alternative for the SR-836 (Dolphin) SW Extension that is technically sound, environmentally sensitive and publicly acceptable. The new corridor is to be funded by the Miami-Dade Expressway Authority (“MDX”).3 UDB and UEA The entirety of the new corridor will be located outside of the County’s urban development boundary (“UDB”). Some portions of the new corridor lie within the area known as the urban expansion area (“UEA”), but the majority of the new corridor lies outside the UEA. The UDB is a defining feature of the Plan, which distinguishes the area where urban development may occur through the year 2020 from areas where it should not occur. The County’s plan accommodates urban development within the UDB by increasing development densities and intensities inside the UDB. The UDB was originally established in 1975 and comprised 233,000 acres. The UDB boundary was significantly amended in 1988, following enactment of Florida’s Growth Management Act, by the addition of 16,000 acres. Between 1990 and 2012, only about 2,400 acres have been added to the UDB, most of which was added by a 2006 amendment to the Plan. At least in part, the UDB operates to limit development pressure on the County’s agricultural lands located to the west of the UDB between the urbanized area and the Everglades National Park. A 2012 Environmental 3 MDX was dissolved by chapter 2019-169, Laws of Florida. The legislation has been challenged and a current appeal is pending before the First District Court of Appeal. See Fla. Dep’t of Transp. v. MDX, Case No. 19-3625 (Fla. 1st DCA 2019). Protection Agency study noted, “the dwindling supply of agricultural land is an especially urgent issue.” The study characterized the County as “dangerously close” to losing its “critical mass” of land in active agriculture usage. The Plan provides for expansion of the UDB to provide additional countywide development capacity “when the need for such change is determined to be necessary through the Plan review and amendment process.” The UEA was established in 1993 and is the area currently projected to be needed to accommodate development in the area between the 2020 UDB boundary and 2030 UEA boundary. Until this area is brought into the UDB through an amendment to the Plan, development within the UEA is limited to uses consistent with “Agriculture” and “Open Land” areas, as defined in the Plan. Residential development outside the UDB is limited to one dwelling unit per five acres (1du/5acres). New Corridor Path The new corridor is planned to pass through lands that are protected by a variety of regulations and development limitations. Figure 1 depicts the location of the new corridor on the Plan Land Use Map, identified as the solid black line beginning at the western end of NW 12th Street and following a winding path west and southwest to its termination at SW 136th Street. [Remainder of page intentionally blank] Figure 1 From its connection with the existing SR 836 corridor, the new corridor will first traverse an area designated “Open Land,” which, according to the Plan is “set aside for uses other than urban development.” It is more than “simply surplus undeveloped land,” and is intended to serve resource- based functions like agriculture or development of potable water supply. According to the Plan, “Open Land areas primarily consist of wetlands.” The only use definitively allowed in this subarea is rural residential. The Plan provides that all other proposed uses will be reviewed on a case-by-case basis. More particularly, the new corridor will traverse the County’s Open Land Subarea 3, which contains the Tamiami-Bird Canal Basins and the eastern portion of the North Trail and Bird Drive Everglades Basins. The basins are recharge areas for the Biscayne Aquifer, the primary source of the County’s drinking water. The Plan provides that the following land uses may be considered for approval in this subarea: [R]ural residences at one dwelling unit per 5 acres (“1 du/5”), compatible institutional uses, public facilities, utility and communications facilities, seasonal agricultural use, recreational use, or limestone quarrying and ancillary uses. Uses that could compromise groundwater quality shall not occur in this area. Any land alteration and development in the Bird Drive or North Trail basins shall conform to the wetland basin plans adopted for those basins pursuant to policies of [the Plan]. The new corridor will traverse a portion of the Bird Drive Basin outside the UDB. Existing development in that area is limited to agriculture and the C-4 detention basin. The detention basin is utilized by the South Florida Water Management District (“District”) to hold water drained from the C-4 canal prior to storm events in order to prevent flooding of the Sweetwater residential community lying to the north. A majority of the new corridor will be located within the County’s West Wellfield protection area, and a portion will run through the 30-day and 100- day travel-time contours. The contours represent the time it takes for a substance released at the contour line to travel to a production well.4 A short segment of the new corridor, approximately three-quarters of a mile, will traverse the Pennsuco wetlands, characteristically high-quality swamps and wet prairies not suited for agriculture or urban development. It is a restored wetland area that has been used as a mitigation project for developers and rock miners over the last 20 to 30 years (i.e., a “mitigation bank”). The mitigation project is under the jurisdiction of the District and other environmental agencies, and is almost complete. The Pennsuco wetlands are also designated as critical habitat for endangered species, including the wood stork, the Florida bonneted bat, the Everglades snail kite, and the Florida Panther. The Pennsuco wetlands are designated on the FLUM as Environmental Protection (“EP”). According to the Plan, the EP designation applies to those areas in the County “most environmentally significant, most susceptible to environmental degradation, and where such degradation would adversely affect the supply of potable fresh water or environmental systems of County, regional, State, or national importance.” The final stretch of the new corridor will traverse Agriculturally- designated lands, mostly within the UEA. Land with this designation “contains the best agricultural land remaining in [the County].” The Plan provides that protection of viable agriculture is a priority of the County. Principle uses allowed in this category “should be” agriculture and uses ancillary to,5 and directly supportive of, agriculture and farm residences. Notably, the Plan provides that, in order to protect the 4 The times are calculated based on a non-reactive substance, i.e., water. Chemicals and other contaminants may have different actual travel times. 5 Uses ancillary to agriculture are those related to preserving, processing packaging, or selling agricultural products; farm supplies; and sale and service of farm machinery and implements. agricultural industry, “uses and facilities that support or encourage urban development are not allowed in this area.” The Comprehensive Everglades Restoration Plan The Comprehensive Everglades Restoration Plan (“CERP”) is an extensive environmental restoration project primarily aimed at restoring as much natural Everglades wetland habitat as possible and re-establishing healthy freshwater flows to parts of the Everglades which have suffered from historic alteration of its hydrology, a result of fragmentation of the ecosystem for urban development and agriculture. CERP is a multi-decade, inter-agency process implemented primarily by the District and the U.S. Army Corps of Engineers (“the Corps”). CERP includes approximately 68 individual projects, approved by a formal process set out in federal law. The projects are compiled in a “yellow book,” originally produced in 1999 and delivered to Congress for approval. Some projects are set forth in great detail, while others are conceptual, but each project identifies a set of hydrologic or ecologic objectives that it is proposed to meet. Restoring surface water flows to the Everglades is a balancing act. While the Everglades is in need of more fresh water, allowing unregulated flows to the Everglades means flooding urban and agricultural properties which were once part of the Everglades system. On the other hand, the urban and agricultural areas depend on surface water flows for water supply, directly or indirectly through groundwater recharge (to prevent saltwater intrusion), for drinking water and agricultural production. CERP regulates the free flow of surface water to provide needed water for urban and agricultural uses, and avoid flooding those areas, while providing as much fresh water to the Everglades as possible. Large portions of the four-square mile Bird Drive Basin have been acquired by the District and the Department of the Interior (“DOI”) to implement a CERP project known as Component U. Component U has several major objectives, including goundwater recharge, reducing seepage from the Everglades National Park buffer areas, enhancing and maintaining wetland viability within the basin, flood attenuation, water treatment of outflows from west Dade wastewater treatment plant, and supplying water to meet demands of the downstream conveyance systems. The state conservation lands north and east of the basin, particularly conservation area 3A, are, at times, inundated with so much water that the wetland literally drowns. CERP projects, including the L31 canal (adjacent to Krome Avenue) and the small canal associated with the Dade/Broward levee, were designed to “shuttle” collected water from the conservation areas and store it for proportionate distribution to both urban areas and the Everglades National Park. Component U is envisioned as both a surface water storage and treatment area, to assist in regulation of water flowing to both the Everglades and the urban areas from the conservation areas to the north and north east. It is related to a larger project to reroute water flowing through the L31 canal, west of Krome Avenue, to the east side of the Bird Drive Basin and eventually into the Bird Drive Canal, utilizing the large, undeveloped basin for storage and treatment, as well as flood control. Additionally, Component U would provide an aquifer recharge function while storing excess water, which would benefit the West Wellfield lying due south. Because of its location relative to several other CERP projects, the Bird Drive Basin plays a critical strategic role in the overall plan for restoration of the southern Everglades. The water quality, conveyance, and storage objectives it is required to meet, along with its flood-attenuation objectives, are relied upon as part of the planning and operation of the other CERP projects in the region to restore the hydrology of the state-owned Water Conservation Areas, Everglades National Park and Florida Bay, and Biscayne Bay. The Bird Drive Basin project is a necessary flow way for restored water levels along the eastern edge of the Everglades, necessary to prevent the flow of too much water through the more central portions of the Everglades, which results in drowning out native plant and animal species. Among the goals of the project is to recharge groundwater and drinking water supplies, and to buffer developed areas in the County from flooding that would result from the higher restored water levels into Everglades National Park. The Bird Drive Recharge project is important to the County as a seepage management project to ensure that restoration of water levels does not affect County landowners and to provide the County with water supply to nearby wellfields. These wetlands are a hydrological buffer between the high water table of Everglades National Park and the much lower water table of the developed areas east of Krome Avenue. This buffer reduces the hydrological gradient of the area, thereby reducing groundwater seepage from the park. Challenges to the Plan Amendment Petitioners allege (as stipulated by the parties) that the Plan Amendment: (1) creates internal inconsistencies with numerous existing Plan goals, objectives and policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; (3) violates the requirement in section 163.3177(6)(d)2.k., that the Plan maintain a conservation element that directs incompatible “future land uses” away from wetlands; (4) violates the requirements in section 163.3177(6)(b)2.a., e., and 3.a., that the Plan maintain a transportation element “to plan for a multimodal transportation system,” address “[a]ll alternative modes of travel,” “identif[y] . . . land use densities, building intensities, and transportation management programs to promote public transportation systems in designated public transportation corridors,” and address “provision of efficient public transit services” and the requirement in section 163.3177(6)(b)1. that the element reflect certain “data, analysis, and associated principles and strategies”; (5) fails to be “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); (6) fails to “be based upon surveys, studies, and data regarding the area, as applicable, including the character of undeveloped land,” as required by section 163.3177(6)(a)2., and to be based on an “analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site,” as required by section 163.3177(6)(a)8.; and (7) violates the requirement of section 163.3177(1) that the Plan “maintain[] meaningful and predictable standards for the use and development of land and provide[] meaningful guidelines for the content of more detailed land developments and use regulations.” Petitioners’ umbrella contention is that the Plan Amendment is contrary to the Plan as a whole—which limits urban services and development to within the UDB, prioritizes implementation of CERP, seeks to preserve remaining agricultural areas and a viable agriculture industry, and is completely dependent on a sensitive aquifer for drinking water—by allowing a four- and six-lane expressway outside of the UDB, through an area identified for a CERP project, bisecting agricultural areas, through a wetland preservation area, and within the West Wellfield. Petitioners’ arguments can be categorized generally as concerns with land use, environment, CERP, agriculture, and transportation. UDB and Land Development Issues Petitioners contend that constructing the new corridor outside of the UDB is inconsistent with the purpose of the UDB, and with the overarching construct of the Plan to achieve the desired development form while protecting both sensitive natural resources and agriculture. The Plan provides that the UDB distinguishes “the area where urban development may occur through the year 2020 from areas where it should not occur.” Translating this concept to infrastructure investment, the Plan provides that “public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB.” (emphasis added). The Plan further provides, “Critical in achieving the desired pattern of development is adherence to the 2020 UDB and 2030 UEA boundary,” and that “since its inception [the Plan] has provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined.” Petitioners’ expert planning witness, Mr. Hawkins, explained that “this regulatory line is not one that just says we are going to have urban land uses on one side and not on the other. We are also going to limit the provision of urban services across the line.” The County offered little response to this allegation. In a series of leading questions on direct examination, Mr. Woerner was asked whether the Plan Amendment is inconsistent with policy language that begins, “Given the fundamental influences of infrastructure and service availability on land markets and development activities …” Mr. Woerner gave a conclusory “no” answer, to which Mr. Kerbel asked, “And is that for the reasons you’ve already addressed?” Mr. Woerner agreed. However, none of the prior questions addressed anything regarding public expenditures for urban infrastructure. The Plan Amendment proposes development of urban infrastructure outside the UDB, and thus, outside of the envelope within which the Plan dictates public expenditures for urban infrastructure “will be confined,” in contravention of the Plan’s direction that adherence with the UDB/UEA construct is “critical” to achieve the desired pattern of development for the County. The County contends that the new corridor is not “development,” a position which is untenable and is addressed in the Conclusions of Law. Petitioners proved the Plan Amendment is inconsistent with the unnumbered policy statements in paragraph 46 appearing on pages I-60, I-61, and I-74 of the Plan.6 Petitioners further allege the Plan Amendment is inconsistent with Plan policies that discourage urban sprawl, “emphasize[] concentration and intensification of development around centers of activity” and “high intensity, well-designed urban centers,” and “seek to prevent discontinuous, scattered development at the urban fringe,” such that “[u]rban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided . . . [and] [a]reas designated Environmental Protection shall be particularly avoided.” Petitioners identify the following goals, objectives, and policies in support of these objections: Land Use Element Objective LU-1 and Policies LU-1B and LU-1O; Objective LU-2 and Policy LU-2B; Policy LU-8G; Policy LU-10A; Transportation Policy TC-6A; and Capital Improvement Element Objective CIE-5 and Policy CIE-5A. Petitioners’ arguments that the Plan Amendment fails to discourage urban sprawl are based on many of the same Plan policies. Petitioners contend that the mere existence of the new corridor will increase development pressure, and induce sprawl development, outside of the UDB contrary to Plan policies promoting compact, high-intensity developments in urban centers. This argument is not novel and can be summarized as, “If you build it, they will come.” Petitioners are not wrong, and the expert County planning staff raised the same concern during review of the Plan Amendment application, stating: While roadways facilitate long-distance and local travel and provide access to real property, they also 6 Provisions such as these, which are referred to as “interpretive text,” are contained in the Land Use Element section titled, “Interpretation of the Land Use Plan Map: Policy of the Land Use Element.” Although not among the element’s numbered goals, objectives, and policies, the interpretive text is expressly “adopted as County policy.” Furthermore, LU-5C requires “planning activities pertaining to development or redevelopment and the provision of public services and facilities in [the County] shall be consistent with … the locations and extent of future land uses as identified by the [FLUM] map and its interpretive text.” significantly affect the use and development of land in their immediate vicinity. In high growth areas such as [the County], any reduction in travel time between centers of population and commerce directly increases competition in the land market between urban uses, including residential and commercial uses. This could generate increased demand for development of land adjacent to the proposed expressway corridor. Because the proposed alignment is generally adjacent to but outside the UDB, the [new corridor] could have the unintended consequence of increasing development pressure on land outside the UDB, including current agricultural lands, if the proposed amendment only addressed the future construction of the roadway. In response to this concern, staff recommended adoption of, and the Plan Amendment was adopted with, the following new Policy: Traffic Circulation Subelement Policy TC-1M. [The County] approves the [new corridor] only to the extent necessary to relieve existing traffic congestion in the southwestern part of the County and to provide a reliable, robust, and faster connection to Downtown Miami and other major trip attractors across the County. To discourage urban sprawl within the Area of Impact of [the new corridor] … the County’s Concurrency Management System shall be amended to remove the additional LOS/capacity that the roadways in the Area of Impact would experience due to the diversion of trips resulting from the construction of [the new corridor] could not be used to demonstrate concurrency. The purpose of this policy is to assure that the additional capacity attributable to the [new corridor] cannot be used to support further development in the Area of Impact. In other words, “If you build it, they cannot come.” Petitioners raised many arguments to demonstrate that this language would not be effective to truly prevent urban sprawl outside the UDB. They introduced the testimony of Walter Kulash, who exclaimed that it would “be absurd” to create excess roadway capacity that could not be used by developers, and that, as a transportation engineer, “it is not at all clear to me how the chain of computation would work here.” However, as explained by Mr. Sandanasamy, the County’s expert transportation planner, the concurrency restriction will be implemented by comparing the roadway capacity figures prior to the opening of the roadway to any future traffic counts, to determine how much those traffic counts have been reduced. He gave the following example: Assume an arterial with a capacity of 35,000 trips, and before the new corridor opened, the actual amount of traffic counted is 30,000 trips. That means the arterial had a remaining capacity of 5,000 trips before the opening of the new corridor. Assume that when traffic is counted after the opening of the new corridor, the number of vehicles on that arterial drops to 28,000 trips—a reduction of 2,000 trips attributed to the new corridor—meaning that the remaining capacity of the arterial has increased from 5,000 trips to 7,000. Policy TC-1M would require the Concurrency Management System to log the capacity of the arterial as reduced by 2,000 trips, so that future applications would be measured against a roadway capacity of 33,000 trips. Mr. Sandanasamy concluded that the policy is intended to “prevent urban sprawl [and] allow development to go on as it was, like this roadway doesn’t exist.” The parties introduced the testimony of competing expert transportation planners on this subject; but, in the end, Petitioners’ expert, Juan Mullerat, conceded the issue, as follows: Q. [Mr. Kerbel] And in the event that there is a process in which someone seeks to amend their land uses, they would have to address the fact that the road can't be used to show concurrency, right? A. [Mr. Mullerat] Correct. * * * So at the end of the day that is why I am saying it is the same. Right now you don't have infrastructure, so you can't use it for concurrency. Once you put the infrastructure, this says that you won't be able to use that as -- in order to change the land use. Q. Okay. So it is a wash? A. It is a wash. It doesn't make—it is neither harder nor easier. New Policy LU-3Q was added to further ensure the Plan Amendment did not encourage development in the agriculturally-designated lands. The policy reads as follows: Any zoning action or amendment to [the Plan] that would approve any use other than direct agricultural production, the sale of agricultural produce, and permitted residential and Bed and Breakfast uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinated use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the [UDB] and b) within one mile of the right-of-way line of any portions of [the new corridor], shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where the applicable board issues a decision. Petitioners claimed this policy was not based on data and analysis to demonstrate its effectiveness. To the contrary, the language of new Policy LU-3Q was modeled on language utilized when the County adopted the Plan to allow widening of Krome Avenue, which lies outside the UDB, farther west than the new corridor. Even a cursory review of the FLUM reveals that the land uses adjacent to Krome Avenue remain agriculture. The County’s experience with development surrounding Krome Avenue is data that has been available to, and was relied upon by, the County in adopting the subject Plan Amendment. Petitioners did not prove that the Plan Amendment would induce additional urban development outside the UDB and in environmentally sensitive areas. Thus, Petitioners did not prove the Plan Amendment is inconsistent with Objective LU-1, which requires “the location and configuration of [the County’s] urban growth through the year 2030 shall emphasize concentration and intensification of development around centers of activity”; Policy LU-1O, which requires the County to “seek to prevent discontinuous, scattered development at the urban fringe in the Agricultural Areas outside the UDB”; Objective LU-2, which provides that “[d]ecisions regarding … urban expansion … shall be based on the physical and financial feasibility of providing, by the year 2020, all urbanized areas with services at levels of service (LOS) which meet or exceed the minimum standards” in the CIE; Policies LU-2B, TC-4C, and CIE-5A, which provide that urban services and facilities, including roadways, which support or encourage “urban development in Agriculture and Open Land areas shall be avoided”; Policy LU-10A, which requires the County to “facilitate contiguous urban development, infill [and] redevelopment”; and TC-6A, which mandates that the County “shall avoid transportation improvements which encourage or subsidize increased development in … environmentally sensitive areas.” The remaining policies implicated by Petitioners are irrelevant to the Plan Amendment: Policy LU-1B, which provides that “major centers of activity” and “other concentrations of significant employment … shall be sited on the basis or metropolitan scale considerations at locations with good countywide, multi-modal accessibility”; Policy LU-1S, which requires the County Strategic Plan to be consistent with the Plan; Objective LU-5 and Policy LU-5B, which pertain to the consistency of development orders with the Plan; and LU-8G, governing considerations for adding land areas to the UDB. Environmental Considerations Wellfields Petitioners allege the Plan Amendment is inconsistent with the following objectives and policies of the Conservation Element relating to protection of wellfields: CON-3, 3A, 3B; and CON-5F. CON-3, 3A, and 3B provide, in relevant part, as follows: Objective CON-3. Regulations governing approved wellfield protection areas shall be strictly enforced …. CON-3A. No new facilities that use, handle, generate, transport or dispose of hazardous wastes shall be permitted within wellfield protection areas[.] CON-3B. The water management systems that recharge regional wellfields shall be protected and enhanced. The Plan Amendment does not adversely affect the County’s ability to enforce its approved wellfield regulations. The new corridor is not a facility that uses, handles, generates, or disposes of hazardous wastes. Petitioners introduced testimony regarding the threat to the West Wellfield posed by trucks, carrying hazardous substances via the new corridor, potentially (and speculatively) spilling chemicals in an accident. Nevertheless, the greater weight of the evidence supports a finding that the new corridor is not a “facility” that transports hazardous wastes as contemplated by the policy. The meaning of “water management systems” used in Policy CON-3B, was disputed by the parties. Petitioners introduced the testimony of Dr. McVoy, who testified that he considered the wetlands of the Bird Drive Basin as the water management system that recharges the regional wellfield. Respondent introduced the testimony of Wilbur Mayorga, chief of the County’s environmental monitoring and restoration division, who is responsible for the wellfield protection areas and the boundaries thereof, and who was admitted as an expert in wellfield protection and contamination. Mr. Mayorga gave a broader, more general definition, which is ultimately not in conflict with Dr. McVoy’s definition. The Bird Drive Basin is one part of the larger system managing and conveying freshwater from Lake Okeechobee through various natural and man-made components that store, treat, and deliver water to the urban and agricultural uses, as well as the Everglades. Respondent’s hydrogeology expert, Dr. Virginia Walsh, confirmed that the Bird Drive Basin wetlands serve to recharge the County’s production wells. Dr. McVoy’s opinion was hedging—“I find it hard to see how [the system] would be enhanced and I find it hard to see how [the system] would be protected … I can’t see any way that I, as a scientist, can say that by putting a roadway on [the system] it is going to increase protection ….” Mr. Mayorga was asked directly, “In your professional opinion, would the plan amendment pose any threat to these water management systems?” Mr. Mayorga answered, “That I’m not familiar with.” His answer was puzzling and unhelpful. Significantly, both Dr. McVoy and Mr. Mayorga preferred to answer the question based on the degree of risk created. Dr. McVoy testified that building the tollway certainly increases risk of contamination to the system. Mr. Mayorga opined that removing all uses within the wellfield is the only way to achieve zero risk. He further opined that any roadway carries an inherent risk of contamination, which can be attenuated by the location of uses at the higher contour lines. As Mr. Mayorga explained, “The closer you are to the production wells, the [fewer] alternatives you have in how you manage stormwater.” In an effort to demonstrate compliance with the requirement to “protect the water management systems that recharge” the regional wellfield, Respondent points to new policy LU-1W, which requires that alignment of the new corridor remain “outside and to the east of the boundary of the 10- day travel time contour” of the West Wellfield area. In the end, Respondent’s expert witness confirmed that building the new corridor will neither protect nor enhance the water management systems that recharge the West Wellfield. Petitioners did not prove the Plan Amendment is contrary to Objective CON-3 or Policy CON-3A. However, they did prove the Plan Amendment is inconsistent with Policy CON-3B. 7 Policy CON-3F requires the County to implement cut and fill criteria for land in the North Trail and Bird Drive basins, among others. The County has already implemented those criteria and the Plan Amendment does not implicate that policy in any way. The remainder of Petitioners “wellfield” allegations overlap with alleged wetland impacts and are addressed in the following section. Wetlands Petitioners next contend the Plan Amendment is inconsistent with the following objectives and policies related to wetlands and wetland functions: CON-4 and 4A, and CON-7, 7A, and 7J, which read, in pertinent part, as follows: Objective CON-4. The aquifer recharge and water storage capacity of the presently undeveloped areas in the western and southern Miami-Dade County shall be maintained or increased. 7 In addition, to the extent Petitioners challenged the Plan Amendment as inconsistent with the interpretive text in the Land Use Element relating to Open Land Subarea 3 (North Trail and Bird Drive Basins), which reads, “Uses that could compromise groundwater quality shall not occur in this area,” that allegation was proven as well. Mr. Mayorga’s testimony that “any roadway carries an inherent risk of contamination” conceded the point that the Plan Amendment creates a risk of contamination to the wellfields. Policy CON-4A. The aquifer-recharge values of undeveloped land and the water storage values of wetland areas shall be maintained and, where feasible, enhanced or restored. Objective CON-7. [The County] shall protect and preserve the biological and hydrological functions of Future Wetlands identified in the Land Use Element. Future impacts to the biological functions of publicly and privately owned wetlands shall be mitigated.… Publicly acquired wetlands shall be restored and managed for their natural resource, habitat, and hydrologic values. Policy CON-7A. The degradation or destruction of wetlands shall be limited to activities that 1) are necessary to prevent or eliminate a threat to public health, safety or welfare; 2) are water dependent, clearly in the public interest and no other reasonable alternative exists; 3) are carried out in accordance with a basin management plan; or 4) are in areas that have been highly disturbed or degraded and where restoration of a wetland with an equal or greater value in accordance with federal, State, and local regulations if feasible. Habitats critical to endangered or threatened species shall not be degraded or destroyed. CON-7J. In evaluating applications that will result in alterations or adverse impacts to wetlands, [the County] shall consider the application’s consistency with [CERP] objectives. Wetlands play an important part in recharging the Biscayne Aquifer. They filter stormwater to remove pollutants and nutrients prior to the water’s eventual entry into the aquifer. As discussed above, wetlands can also perform the important function of storing stormwater to prevent flooding of adjacent properties, and for use in dryer seasons, if they have a confining clay (or other soil) layer above the aquifer. The new corridor is expected to destroy over 300 acres of wetlands in the Bird Drive and North Trail basins, although the exact number is unknown. Petitioners contend that violates Policy CON-7A because the project does not meet any of the four criteria. The County introduced evidence that the wetland impacts will be carried out in accordance with Bird Drive Basin management plan, thus meeting criteria three of Policy CON-7A. The final sentence of Policy CON-7A prohibits destruction of wetlands in habitats critical to threatened or endangered species. The Pennsuco wetlands are designated critical habitat to several endangered species, but the Plan Amendment implicates wetland impacts in that area. The County maintains that it has addressed this issue through an interlocal agreement with MDX, which requires that the entire span of the new corridor traversing the Pennsuco wetlands be elevated. However, the interlocal agreement is not incorporated into or adopted by reference in the Plan Amendment; thus, is not enforceable through the Plan. To the contrary, the interlocal agreement may be modified or amended upon mutual agreement of the parties.8 Petitioners proved the Plan Amendment is inconsistent with Policy CON-7. Because the new corridor will traverse the Pennsuco wetlands, an area designated as critical habitat for threatened and endangered species, the Plan Amendment violates this policy. Petitioners did not prove the Plan Amendment is inconsistent with this part of CON-7J. As discussed in the Findings of Fact 104 and 107, the County did consider the impact of the new corridor on CERP. Petitioners’ allegations of inconsistency with Objective CON-4, Policy CON-4A, and Objective CON-7, all relate to the impact of the new corridor on aquifer recharge and storage capacity of wetlands in the path of the new corridor. 8 Even if the interlocal agreement were incorporated into the Plan Amendment, this inconsistency would not be completely resolved because the interlocal agreement allows pilings or other support structures for the elevated section to be located in the Pennsuco wetlands. Dr. McVoy opined that the aquifer recharge capacities of the Bird Drive Basin, the West Wellfield, and the Pennsuco Wetlands will not be increased as a result of the Plan Amendment, but he did not testify that the Plan Amendment would inherently decrease those capacities, nor did he testify that the Plan Amendment would prevent those capacities from being maintained. Again, County staff recognized the inherent conflict between wetland functions and development of the roadway corridor, and recommended the Plan Amendment include the following new policies, which read, in pertinent part, as follows: LU-1W. [P]rior to the construction of the roadway, or any phase thereof, MDX shall prepare a surface water sheet flow analysis to demonstrate that the wetlands hydrology in this area shall be adequately retained. LU-3T. The [new corridor] is planned to traverse and impact wetlands within the Bird Drive Basins and elsewhere along its alignment and will require environmental approval and wetland mitigation. To the maximum extent feasible, mitigation for the [new corridor] shall be accomplished through acquisition, preservation, and restoration of wetlands within the Bird Drive and North Trail Basins outside the [UDB]. At a minimum, preservation of wetlands within the Bird Drive Basin shall be included as a component of the wetlands mitigation for this project. The mitigation shall also include a plan to preserve the hydrological connection and surface water flow of the wetlands remaining in these basins through the use of culverts or bridges. (emphasis added). Petitioners have two objections to this language. First, Petitioners argue the only way to preserve the hydrologic connection of the wetlands severed by construction is by bridging, rather than use of culverts. Dr. McVoy expressed the opinion that, if a wetland has water storage capacity, the roadway will need to be elevated to prevent flooding of the roadway. If the County only uses culverts, the road will still be subject to flooding in the areas where it is not culverted. Moreover, the hydrologic function of the wetlands will not be maintained because the wetlands will be disconnected in those areas. The County’s wetland expert explained that while some wetland vegetation is removed for a culverting project, the culvert allows wetland hydrology to be maintained. He gave examples of other roadways, notably Krome Avenue, where culverts have been used to maintain the hydrologic connection of wetlands severed by the roadway. Both Dr. McVoy and Mr. Spinelli have expertise in wetlands and wetland hydrology and hold different opinions on the issue. Neither witness’s testimony was more compelling than the other. Second, Petitioners attack the use of the phrase, “to the maximum extent feasible” to modify the requirement that mitigation of wetland impacts be accomplished within the Bird Drive and North Trail basins. Petitioners contend that this phrase does not provide a meaningful and predictable standard. But this is a common phrase that has been used throughout comprehensive plans that have been found in compliance, including ones prepared by Petitioners’ planning expert, Mr. Iler, and as acknowledged by Mr. Hawkins. Moreover, Mr. Woerner noted that at least three other policies in the Plan use the phrase “to the maximum extent feasible,” and he emphasized that this language provides some flexibility as to how an otherwise mandatory directive can be accomplished. As Mr. Spinelli and Mr. Woerner explained, the phrase “to the maximum extent feasible” in new Policy LU-3T is appropriate because it provides some flexibility as to the location of wetland mitigation, because, as the County’s wetland mitigation estimates showed, there were limits on the amount of available land within the Bird Drive and North Trail Basins to address the entire amount of mitigation that would likely be required. Mr. Hawkins further opined that the standard “is so deferential to the opinions stated by whoever the applicant or the developer might be in the future as to not provide a real standard that we can use today to anticipate whether we can measure compliance of this policy in the future.” However, nothing in Policy LU-3T vests discretion in, or suggests deference to, a permit applicant with respect to the issue of feasibility. It is plain that, as with other policies in the CDMP, the County would ultimately determine feasibility. In summary, the Plan does not prohibit destruction of all wetlands in environmentally-sensitive areas. Rather, it limits damage to projects meeting certain criteria, at least one of which is met by this project. The Plan anticipates mitigation of wetland acreages lost due to development, and requires the water storage, recharge capacity, and hydrology of wetlands be maintained or increased. Finally, the Plan requires restoration of publicly- acquired wetlands “managed for their natural resource, habitat, and hydrologic values.” The Plan Amendment will disturb and destroy wetlands, which will be undertaken in accordance with the basin management plans for the Bird Drive and North Trail basins. The Plan Amendment requires MDX to demonstrate that the wetland hydrology can be maintained by submitting sheet flow analysis prior to construction. Mitigation of wetlands acquired can increase storage capacity by removal of melaleuca and restoration of the confining layer. Petitioners did not prove that the Plan Amendment violates any of the cited Conservation Element policies, with the exception of CON-7A, because it allows destruction of portions of the Pennsuco wetlands. CERP Protection of the Everglades is one of the highest priorities of the Plan. The Land Use Element provides that the County’s “growth policy includes … that the intensification of physical development and expansion of the urban area should be managed … in recognition of the County’s physical limitations to horizontal expansion due to the location of the Everglades National Parks[.]” Land Use Policy LU-3S states that “[The County] continues to support the [CERP] and related regional and local habitat restoration and preservation initiatives through its … long-range land planning initiatives.” Future Land Use Element Figure 14 clearly depicts the Bird Drive Basin as “Future Wetlands and CERP Water Management Areas.” The Conservation Element “builds upon past and present initiatives such as … planning for the Bird Drive-Everglades [and other] basins.” Petitioners contend the Plan Amendment is contrary to Policy CON-7J, which provides, as follows: In evaluating applications that will result in alterations or adverse impacts to wetlands[,] [the County] shall consider the applications’ [sic] consistency with [CERP] objectives. Applications that are found to be inconsistent with CERP objectives, projects or features shall be denied. (emphasis added). Petitioners maintain the Plan Amendment will adversely impact wetlands in the Bird Drive Basin, which is designated as CERP Component U, and should be denied as inconsistent with that CERP project and its related objectives. 9 All parties agreed that only the District has authority to determine whether the Plan Amendment is consistent with CERP. As part of the required review of the Plan Amendment, the District commented on the proposed Plan Amendment. In its comment letter, the District noted that “[a] portion of the lands within the proposed study area for the expressway extension have been identified as having potential use with regard to Everglades restoration projects.” The District advised that the 9 The County introduced evidence, all of which constituted hearsay, to prove that the District has determined Component U to be infeasible and has instead moved toward a conveyance concept for the Bird Drive Basin, which, ostensibly requires less property. The issue is a red herring. No matter the size or scale of the CERP project, the District remains the agency with authority to determine whether the Plan Amendment interferes with the project. County had not supplied enough information “that would help the District evaluate the proposed project’s compatibility with the CERP [project],” and directed that County staff “coordinate with appropriate District staff to provide sufficient information.”10 The County did not provide additional information to the District and did not receive any determination from the District regarding the Plan Amendment’s consistency with CERP. Petitioners did not prove that the Plan Amendment is inconsistent with CERP, or that the County failed to consider consistency with CERP, thus, they did not prove the Plan Amendment is internally inconsistent with Policy CON-7J. However, Petitioners did prove the Plan Amendment is not supported by data and analysis on this point. Rather than providing the District with the additional information it requested to determine consistency with CERP, the County replied that it would continue to work with the District during the permitting process and “may be able to include features … that provide benefits that are both compatible and consistent with the intent of the CERP.” While only the District has the authority to determine consistency of the Plan Amendment with CERP, the County, not the District, has the duty and authority to determine consistency with its own Plan, including Policy CON-7J. 10 The District’s letter constitutes hearsay evidence for which there is no applicable exception in section 90.803, Florida Statutes. See Ehrhardt’s Florida Evidence § 803.8 (“A third kind of public record is admissible under [the Federal Evidence Code], but was intentionally omitted from section 90.803(8)”—“records and reports by a public official when the official is required to interpret and evaluate facts and information supplied by persons outside the agency.”). If the letter addressed the material disputed fact of whether the Plan Amendment was inconsistent with CERP, those statements would be inadmissible. However, the undersigned determined that statements regarding the need for more information on the issue are admissible, because they do not go to a material disputed fact. The County introduced the testimony of expert planning witness, Mark Woerner, in an attempt to prove that the County need not have a final determination of consistency with CERP prior to adopting a plan amendment. Mr. Woerner testified that the Plan merely requires the County to be aware of particular CERP projects when staff reviews plan amendments.11 Mr. Woerner’s testimony is contrary to the plain language of the policy, which requires the denial of a plan amendment that is found to be inconsistent with a CERP project or objective. Notwithstanding the previous finding that Petitioners did not prove that the Plan Amendment was inconsistent with CERP, because the Plan Amendment was adopted absent a determination of consistency with CERP, the Plan Amendment is not based upon adequate data or analysis. To be “based upon data” means “to react to it in an appropriate way and to the extent necessary[.]” § 163.3177(f), Fla. Stat. The County did not react appropriately to the data and analysis available—that the District needed more information in order to determine consistency—by adopting the Plan Amendment without such needed information. Agriculture Next, Petitioners contend that the Plan Amendment is inconsistent with policies specifically addressing the preservation of agriculture. The Plan provides the following with respect to lands in the Agriculture category: The area designated as “Agriculture” contains the best agriculture land remaining in [the County]. As 11 Mr. Woerner’s testimony was hedging, at best: “I believe that you can still provide an analysis and address the issues that may be surrounding a particular CERP project or a CERP issue. But I don’t think you need to have to finally finalize that. You have to—the comp plan—the policies that we put in the comp plan regarding CERP were to ensure that in the planning process, the County’s aware of the importance of CERP in its projects and that we have to be aware of that as we review different plan amendments or other permitting issues that might arise for the County.” stated in the [County’s] strategic plan, approved by the Board of County Commissioners, protection of viable agriculture is a priority. The principle uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture and farm residences.[12] The Plan continues, “In order to protect the agricultural industry, uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed within [the Agriculture land use category].” The mandate to protect agriculture is reiterated in the section on Concepts and Limitations of the Land Use Plan Map, which provides, “Among the long-standing concepts embodied in the [County’s Plan] are … encourage agriculture as a viable economic use of suitable lands.” In addition to the foregoing Plan provisions, Petitioners cite the following goals, objectives, and policies with which the Plan Amendment conflicts: the Land Use Goal, which calls for “preserv[ing] Miami-Dade County’s unique agricultural lands” and Land Use Policies LU-1R, LU-1S, LU-8C, and LU-8E. Policy LU-8C requires the County to “continue to protect and promote agriculture as a viable economic use of land[.]” The Plan Amendment will displace approximately 300 acres of Agriculturally-designated land which is in active agricultural use. The amount of land that is needed to maintain a viable agricultural industry is approximately 50,000 acres. According to the Environmental Protection Agency’s December 2012 report titled “Growing for a Sustainable Future: Miami-Dade County Urban Development Boundary Assessment,” approximately 67,000 acres outside the UDB are in active agricultural use. 12 Uses ancillary to agriculture are those related to preserving, processing packaging, or selling agricultural products; farm supplies; and sale and service of farm machinery and implements. The Plan Amendment will not reduce the amount of agriculture land to below the threshold required for a viable agriculture industry. Therefore, Petitioners did not prove the Plan Amendment is inconsistent with either the Concepts and Limitations interpretive text or LU-8C. Policy LU-8E provides, in pertinent part, as follows: Applications requesting amendments to [the Plan] Land Use map shall be evaluated for consistency with the Goals, Objectives, and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impeded provision of services at or above adopted LOS standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods, and; Enhance of degrade environmental or historical resources, feature, or systems of County significance[.] There is ample evidence that the Plan Amendment was evaluated for consistency with every aspect of the Plan. As it pertains to Agriculture, County staff specifically recognized potential conflict with the Plan’s directives to protect agricultural land. To address that concern, staff recommended that “MDX be required to preserve agricultural lands that are currently being used for agricultural production, commensurate with the amount of such lands that would be impacted by the roadway extension.” Staff recommended addition of, and the Plan Amendment was adopted with, the following new future land use policies: Policy LU-1U. Notwithstanding the designation of the [new corridor] as an Expressway on the [Plan] Land Use Plan map … no construction associated with the [new corridor] shall occur that would restrict farm vehicle and equipment access to agricultural properties adjacent to the [new corridor]. Moreover, to minimize the impacts of the [new corridor], the design and construction shall be conducted in a manner that does not cause drainage or the spillage of lighting from the [new corridor] onto adjacent agricultural lands. Policy LU-1V. To mitigate the impacts of the [new corridor] on the agricultural area, [MDX] shall preserve agricultural lands outside the UDB commensurate to impacts to agricultural lands that would be taken out of production by the project. Said preservation may be through participation in the County’s Purchase Development Rights program or other mechanism acceptable to the [County] Department of Regulatory and Economic Resources (or successor Department). The Plan Amendment addresses both the direct and indirect impacts the new corridor may have on agriculture. Policy LU-1V mitigates the loss of directly impacted acreage by requiring preservation of land for agricultural land outside the UDB through a purchase of development rights program on an acre-for-acre basis. Under the Plan Amendment, all direct impacts to agricultural lands will require preservation of a commensurate amount of agricultural land outside the UDB. Approximately 188 acres of the impacted agricultural acres are located within the UEA, which are already projected to be removed from agricultural production in the future. Policy LU-1V will, arguably, increase the amount of land available for agriculture following the eventual development of the UEA for urban development. Policy LU-1U addresses the indirect impacts to agriculture, by requiring the expressway to be designed in a manner that protects farm vehicle and equipment access and that does not cause drainage or lighting spillage onto agricultural lands. With the addition of the cited policies, it is at least arguable that the Plan Amendment is not inconsistent with Plan directives to protect agricultural lands or Policy LU-8E. At first blush, Policy LU-1R appears to be relevant because it begins by mandating the County to “reserve the amount of land necessary to maintain an economically viable agricultural industry.” However, the remainder of the policy mandates the County to adopt a transfer of development rights (“TDR”) program and provides more detail on how TDR will be implemented. The policy must be construed as a whole. The Plan Amendment included no provisions regarding the development, adoption, or implementation of the TDR program. Thus, the Plan Amendment is inconsistent with this policy. LU-1S is inapplicable, again, because it addresses the consistency of the County’s Strategic Plan, rather than plan amendments, with the Plan. The Plan Amendment is not inconsistent with the interpretive text describing the Agriculture land use category because, as detailed in Findings of Fact 59 through 62, the Plan Amendment does not support or encourage urban development in the Agriculture land use category. Finally, Petitioners argue that the Plan Amendment is not supported by data and analysis, specifically regarding the amount of agricultural land impacted by the new corridor and the amount of land needed to maintain a viable agriculture industry. Mr. Hawkins opined that the County did not identify the impacts, which is not a professionally acceptable planning practice. However, the evidence adduced at the final hearing revealed that data was available to, and was considered by, the County, and which supports the Plan Amendment. Petitioners did not prove this aspect of the Plan Amendment was not supported by appropriate data and analysis. Transportation The PD&E Study In 2013, following TPO approval, MDX commenced the PD&E process for the new corridor. MDX engaged consultants, overseen by the project manager, Albert Sosa, on behalf of general engineering consulting firm HNTB, to undertake the PD&E process for what was referred to as “MDX Project 836-18.” The PD&E process is the State of Florida’s process by which infrastructure projects demonstrate compliance with federal and state environmental and other regulatory standards. A PD&E study involves roadway engineering, structural work, stormwater drainage work, traffic engineering, transportation engineering, and analysis of the project’s impacts on both the natural and the built environment and on the people in the affected community. Mr. Sosa personally supervised the development of, and reviewed and approved, all methodologies for collection and analysis of data, reviewed the results of the collection and analysis for conformance with the approved methodologies, and reviewed and approved all reports produced as part of the overall PD&E Study for MDX Project 836-18. The first step in the PD&E Study was to develop an evaluation methodology, which, in this case, was the Alternative Corridor Evaluation (“ACE”), whereby several alternative corridors were analyzed and compared based on their relative impacts and benefits to the natural and built environment and to the transportation needs of the affected community, among other criteria. The ACE for MDX Project 836-18 ultimately considered 10 corridor alignments. The analysis began by measuring existing traffic conditions in 2014 to identify existing operational deficiencies along critical roadway facilities. From there, the analysis projected traffic impacts out to the year 2050. The 2050 projections used as a baseline a “no-build” model that incorporated highway, transit, roadway, and other transportation improvements programmed in the LRTP “Cost Feasible Plan” to be constructed by 2050, as well as updated population and other socio-economic projections. The alternative corridor alignments for the proposed expressway were compared against the “no-build” model in the year 2050, to determine whether the existing traffic conditions observed in 2014 remained or worsened even after accounting for future planned transportation improvements; and if so, whether the proposed expressway improved the projected conditions. The ACE analyzed traffic impacts over a broader study area than it used for impacts to the natural and built environment. The traffic study area is based on a model that incorporates the different corridors, and turns those corridors on and off to see where significant impacts to traffic stop appearing. That model is known as the Southeast Regional Planning Model (“SERPM”), which is owned by the TPO and includes: planned transportation projects, existing and future land use designations, existing and future population projections, and existing and future employment projections for different areas of the County. It is, therefore, used to analyze every transportation project in the County for impacts to both the existing and future planned environment. The traffic study area for the SR-836 southwest extension project was established as a 75-square-mile area bounded on the north by NW 12th Street, on the east by SW 97th Avenue, on the south by SW 152 Street/Coral Reef Drive, and on the west by SW 177 Avenue/Krome Avenue (see Figure 2). [Remainder of page intentionally blank] Figure 2 Of the original 10 ACE corridors, the closest to the final adopted alignment was Corridor 6. Between NW 12th Street and SW 88th Street, Corridor 6 matches the alignment presented in the Plan Amendment. The main difference is that the southern portion of ACE Corridor 6 lies further west of the UDB and further away from the residential development in West Kendall south of SW 104th Street than the Application alignment did. Petitioners challenged the PD&E study, and the ACE Report specifically, as insufficient data to support the Plan Amendment because the final adopted alignment of the new corridor differed from any of the 10 the alignments studied. The undersigned finds the PD&E study, including the ACE Report, provides significant data compiled by a professionally-accepted methodology and taken from professionally accepted sources.13 Thus, while none of the 10 ACE corridors exactly matched the final adopted alignment, the PD&E Study ultimately analyzed all of the variations that the County considered, and as of the Plan Amendment’s adoption, the PD&E Study had obtained data for the final adopted alignment. Mobility Approximately 600,000 people live in the West Kendall area (including areas between the UDB and SW 177th Avenue/Krome Avenue), and each weekday, 150,000 of those people commute to work in other areas of the County. The need for increased mobility in West Kendall is well documented by the PD&E Study. In general, the peak travel direction through the study area is eastbound/northbound in the morning peak period, or rush hour (6:00 am to 9:00 am), and southbound/westbound during the evening rush hour (4:00 pm to 7:00 pm). Travel speeds within the study area were found to be lower in the morning rush hour compared to the evening rush hour. Travel speeds lower than 18 mile per hour (“mph”) were documented on Bird Road, Kendall Drive, Coral Reef Drive, SW 137th Avenue, and SW 107th Avenue, during the evening rush hour. The capacity of a roadway is identified by the level of service (“LOS”) standards. The County has adopted LOS D for roadways within the UDB, 13 The ACE Report was originally published in February 2017, but the data and analysis was updated beginning in the summer of 2017 and throughout the Plan Amendment process. and LOS C for roadways outside of the UDB. The roadways listed above are operating at LOS E and F, indicating the level of congestion in the area. In addition to measuring average travel speeds, which incorporate delays at intersections, another planning-level measurement of surface streets is their volume over capacity (V/C) ratio, where volume (V) is the number of vehicles and capacity (C) is the maximum number of vehicles that can pass a point on a roadway in a given amount of time under normal conditions. A roadway is considered to be failing if it has a V/C ratio of 1.0 or more, and it is near failure if it has a V/C ratio between 0.9 and 1.0. During the morning rush hour, 20 roadway segments within the study area had V/C ratios over 1.0, and 15 segments were approaching failure. During the afternoon rush hour, 13 segments had a V/C ratio greater than 1.0, and another 16 were approaching failure. In sum, during the morning rush hour today, roughly 50 percent of the roadway segments operate at substandard speeds, and 33 percent are either already over capacity or near capacity. Additional transportation capacity is needed to accommodate the current residential development in West Kendall, as the existing roadway network cannot effectively serve the area’s current transportation demands, and that population is only expected to increase based on current land use and zoning designations. Petitioners’ overarching challenge relating to transportation is that the Plan Amendment is not supported by the data and analysis from the PD&E study, which demonstrates construction of the new corridor will result in minimal mobility increases in the study area and actually reduce the LOS on some roadway segments. The purpose of the Plan Amendment is two-fold: to improve mobility in West Kendall; and to decrease the commute times to downtown and other employment centers. 14 While the study does reveal significant reduced congestion on certain roadway segments in the West Kendall area during morning and evening rush hours, overall the study supports a finding of minimally increased mobility in the study area. For example, analysis of the alignment most closely approximating the new corridor, scenario 2.1D, results in a reduction of 6,988 vehicles on SW 8th Street, and reduction of 6,264 vehicles on SW 88th Street. But, the impact on daily traffic volumes is minor. The total reduction in vehicle hours traveled (“VHT”) for morning rush hour is four percent, and for evening rush hour is five percent. The average annual daily reduction in VHT is just over three percent (a reduction from 226,033 to 218,803), and an average daily increase in travel speed from 27.72 mph to 29.34 mph. The data also shows the greatest reduction in vehicle miles travelled (“VMT”) is six percent. Notably, the new corridor would result in an improvement of the LOS for less than half of the roadways within the study area. 8th Street, east of 157th Avenue, would improve from LOS D to C; Bird Road would improve from LOS E to D; 120th Street would improve from LOS D to C; and 157th Avenue, north of 136th Street, would improve from LOS F to C. The remaining seven segments studied would remain at their existing LOS, 14 The LRTP identifies “[i]mprove[ment] [of] access to and from the area to major employment centers such as the MIA, the MIC, the Port of Miami, Downtown Miami, Doral, as well as educational and commercial centers within the study area,” as one of the primary purposes of the project, in addition to improving mobility in the Kendall area. The Plan Amendment includes new Policy TC-1M, which provides that the County approves the new corridor “only to the extent necessary to relieve existing traffic congestion in the [West Kendall] area of the County and to provide a reliable, robust, and faster connection to Downtown Miami and other major trip attractors across the County.” including 137th Avenue, south of the new corridor, which would continue to operate at LOS F. Not only does the data reveal that the improvements in West Kendall congestion would be, as Petitioner’s expert described, “meager,” but also they provide no support for a finding that the Plan Amendment will accomplish its second objective—improving the commute time to downtown and other employment centers. The County relies upon the PD&E study, the goal of which is to identify an appropriate corridor for the southwest extension of the Dolphin Expressway, which does not include downtown, the airport, or other employment centers, within either the study area or the impact area. Mr. Mullerat, Petitioner’s expert transportation planner, described the problem as follows: [I]f the intent of this project is to solve in part the commuter issues for commuters, the whole path of the commuter should have been looked at … [the study] doesn’t look at some of the destinations—not just downtown and to the east, but also to the north. … And both origin and destination should have been looked at. Mr. Mullerat testified, credibly, that it was not an acceptable planning practice to have ignored origin and destination trips. The majority of the commuters who utilize the new corridor will be traveling beyond this three-mile stretch on to downtown, the hospitals, the airport, and other major trip attractors, yet the study contains no information about impact on commute times to those destinations. The data is silent on whether the time to those destinations will increase, decrease, or stay the same. Furthermore, the existing segment of the Dolphin Expressway operates at a LOS C, at least for the first three miles traveling east from its current termination point. The data shows that, after the new corridor is built, the LOS drops to D in that three-mile stretch. So, commuters will drive 13 miles, outside of the UDB, through active agricultural lands, through environmentally-sensitive lands, and through the West Wellfield, only to connect with the existing expressway operating at an LOS lower than it operates at today.15 Relating to transportation issues, Petitioners allege the Plan Amendment is inconsistent with the following goals, objectives, and policies in the Plan: TC-1A; TC-4A and F; and TC-6 and 6B. TC-1A requires the County to update and readopt the LRTP to achieve the objective of TC-1, which requires the County to operate its roadways at the adopted LOS, and strive to achieve a better LOS, in a manner consistent with the other objectives of the Plan. It requires the County to prepare proposals to enhance the Traffic Circulation and Mass Transit subelements following each LRTP update. The Plan Amendment is not inconsistent with this policy. The Plan Amendment will assist in achievement of the adopted LOS D on at least some roadway segments within the study area, and achieve a better LOS on others. While it will not improve the LOS on all segments, including at least one that is operating at LOS F, it is at least fairly debatable that the Plan Amendment is consistent with this policy. Policy TC-6A requires the County to “avoid transportation improvements which encourage or subsidize increased development in … environmentally sensitive areas[.]” For the reasons discussed in Findings of Fact 59 through 62, the Plan Amendment does not “encourage increased development” and is not inconsistent with this policy. TC-6B requires that land access interchanges “shall not be placed or constructed in a manner that would provide access to environmental 15 A project to widen the existing segment of the Dolphin Espressway from four to six lanes is expected to re-establish the higher functioning LOS C. However, no evidence was introduced at final hearing to establish the timeframe for that project. protection areas or other areas to be conserved” in order to prevent undue pressure for development in those areas. There is no evidence that the interchanges proposed for the new corridor to connect with existing roads in West Kendall would provide “land access.” Further, the Plan Amendment is not inconsistent with the policy for the same reasons it is not inconsistent with TC-6A. TC-4C provides, “Areas designated Environmental Protection shall be particularly avoided” when the County prioritizes construction of roadways, and allocation of financial resources for said construction.16 At first, it appears the Plan Amendment may be inconsistent with this policy because it allows construction of the new corridor in the Pennsuco wetlands. However, the Plan must be construed as a whole. This policy must be read in conjunction with Policy TC-6C, which provides that “[i]f no feasible alternative exists,” roadways may traverse environmental protection or conservation areas, “however such access should be limited and design techniques should be used to minimize the negative impact upon the natural systems.” Petitioners argue that alternatives to the new corridor exist which would accomplish the objective of relieving congestion in West Kendall. Mr. Kulash opined that congestion could be relieved by lane widening, extending turn lanes, and other roadway improvements; alternately, he expressed an opinion that congestion could be relieved by mass transit improvements. The County experts demonstrated that the alternatives proposed by Petitioners were not feasible, due to costs of land acquisition in the urban area, and the limitations of transit service. 16 The same language is expressed in CIE-6A. For the reasons stated herein, the Plan Amendment is not inconsistent with that policy. Petitioners did not carry their burden of proof with regard to Policy TC-4C. Petitioners must have done more than suggest alternatives exist, they must have proven the feasibility of those alternatives. Petitioners also raised concerns with the energy inefficiency of a new expressway and increased emissions and greenhouse gases. They identified Intergovernmental Coordination Element (”ICE”) policies ICE-5F and 5G as policies with which the Plan Amendment conflicts. ICE-5F requires the County to participate in the Southeast Florida Regional Climate Change Compact and to coordinate with other agencies in developing initiatives to address climate change mitigation and adaption. Policy ICE-5G requires County departmental master plans to “include and prioritize climate change mitigation and adaptation strategies.” The Plan Amendment has no impact on the County’s ability to implement either of those policies. Mass Transit The County has adopted the Strategic Miami Area Rapid Transit (SMART) Plan (see Figure 3). [Remainder of page intentionally blank] Figure 3 The SMART plan includes two east/west corridors, including the Kendall Corridor, which will connect residents in West Kendall from 167th Avenue east to existing lines serving downtown, and two planned north and northeast corridors. Transportation Element Policy TE-3C states, “It is the policy of [the County] to develop all the transportation facilities identified in the MPO’s [LRTP] … as soon as feasible, in accordance with the LRTP phasing program.” The Goal of the Mass Transit Subelement is to “[m]aintain, operate, and develop a mass transit system in [the County] that provides efficient, convenient, accessible, and affordable service to all residents and visitors,” and it adopts the corridors identified by the SMART plan as Figure 2 in the element’s map series. Policy TE-1A provides that “the County shall promote mass transit alternatives to personal automobile.” The overarching Goal of the Traffic Circulation Element includes developing and operating a traffic circulation that “supports the usage of transit,” among other broad goals. Petitioners challenge the Plan Amendment as inconsistent with several existing Plan provisions regarding mass transit service and prioritizing alternatives to private vehicle travel. Primary among them are Transportation Element TC-1A and Traffic Circulation Subelement TC-4F. Based on the same arguments, Petitioners also contend that the Plan Amendment is inconsistent with section 163.3177(6)(b), which requires a transportation element “to plan for a multimodal transportation system that places emphasis on public transportation systems, where feasible” and to “provide for a safe, convenient multimodal transportation system, coordinated with the future land use map . . . and designed to support all elements of the comprehensive plan,” as well as section 163.3177(6)(b)2.a, which requires that a transportation element address “[a]ll alternative modes of travel, such as public transportation, pedestrian, and bicycle travel.” Policy TC-4F provides, as follows: The County shall consistently improve strategies to facilitate a Countywide shift in travel modes from personal automobile use to pedestrian, bicycle and transit modes. The priority for transportation infrastructure expenditures shall be to insure that pedestrian, bicycle, and transit features are incorporated into roadway design. (emphasis added). Policy TE-1A provides, as follows: As provided in this section and the Mass Transit Subelement, the County shall promote mass transit alternatives to the personal automobile, such as rapid transit, (i.e. heavy rail, light rail, and bus rapid transit, premium transit (enhanced and/or express bus)), local route bus and paratransit services. (emphasis added). Petitioners’ experts testified that the new corridor will accomplish the opposite of what is required by the Plan—it will incentivize the use of personal vehicles by residents of West Kendall, who will take the expressway to escape the congestion of the roadways within the UDB. Respondent countered that the Plan Amendment is consistent with the Plan’s emphasis on alternative mass transit because it requires the new corridor to be built as a multi-modal facility, and will provide connections between the planned new east/west corridors. The Plan Amendment includes the following new policies in the Mass Transit Subelement of the Transportation Element: Mass Transit Subelement Policy MT-4D. Pursuant to Traffic Circulation Subelement Policy TC-4F, [MDX] (or successor agency) shall provide for mass transit service in the [new corridor], to be funded by MDX. The mass transit service shall incorporate lanes having technologies that facilitate the safe travel of automated vehicles, including mass transit vehicles, at high rates of speed for a connection with the transit service being implemented as part of the current SR 836 reconstruction generally east of the Turnpike. MDX shall coordinate the mass transit service with [the County] through the Department of Transportation and Public Works (or successor department). Said coordination shall occur prior to the earlier of the issuance of the first permit for construction of the expressway extension or prior to the commencement of any construction of the expressway extension. Mass Transit Subelement Policy MT-4E. In coordination with [the County] Parks, Recreation and Open Space Department and [the County TPO], [MDX] shall design a multi-use recreational trail within the corridor of the [new corridor]. Additionally, to the maximum extent feasible, the multi-use recreational trail shall be designed to provide for seamless connections to the County’s existing and planned trails and greenways network proximate to the corridor. Said coordination shall occur prior to the earlier of the issuance of the first permit for construction of the expressway extension or prior to the commencement of any construction of the expressway extension. These policies satisfy the requirements in Policies TC-3D to “design new roadways in a way that … incorporates planned rapid transit corridors,” and TC-4F to “insure that … transit features are incorporated into roadway design.” The question is whether the Plan Amendment satisfies the Plan requirement to “promote mass transit use.” Petitioner’s expert planners maintained it will not. Mr. Hawkins explained: The expressway is located outside of the Urban Development Boundary to the west of the urbanized area. For folks to use a transit corridor or a transit route that runs along the expressway corridor, they would have to travel by automobile outside the UDB to the west, to access a park-and-ride facility, and then get on a transit facility—a transit vehicle that operates in that corridor. It would not be back in an urbanized area until it is in the area of Northwest 12th Street and back in the UDB. If you were going to plan a corridor for a transit facility, you would have a much more direct line. You would run a transit facility through the developed area. Why? One is so that people can get to it more quickly. And two, so that all of the stops along its way are functional. When you are running through an agricultural area, you can't have any functional stops until you are all the way back in the UDB. It is just—the suggestion that this is a functional transit corridor or that this was designed with transit in mind is—I will use the word farcical. Respondent’s own planning expert, Mr. Woerner, agreed that the Plan Amendment “does not shift the travel mode from single occupancy vehicle to mass transit,” and “does not reduce dependence on the use of personal vehicles.” The County introduced no data on ridership for the transit lanes or other data to support that the mass transit option incorporated in the Plan Amendment would actually promote use of that option. Mr. Woerner seemed to recall some figures on ridership from the PD&E study, which evaluated a mass transit alternative to the new corridor. The figure Mr. Woerner referenced was an estimated 2,772 transit boardings from the alternative corridor analysis conducted during the PD&E study. However, that study was a mass-transit-only alternative to the new corridor. That ridership number is an estimate of the number of West Kendall residents who would choose to take mass transit if that were the only option in the new corridor. It does not reflect the number of users who, given an option between driving their personal vehicle along the new corridor or boarding a bus along that corridor, would choose the bus. In response, Mr. Woerner responded that, in his opinion, the most important data the County needed was the corridor connections. (See Figure 3 depiction of the approximate location of the new corridor, hand drawn in red, in relation to the planned east/west SMART corridors). In this case, Mr. Woerner considered the connections with Kendall Drive and Tamiami Trail bus lines to be important connections for users. But, when asked directly whether the County needed ridership information to support new Policy MT-4D, Mr. Woerner said, “No. I don’t believe we needed it, but it certainly was helpful to know that there had been a projection made.” Mr. Woerner’s testimony was not credible. As discussed above, the projection Mr. Woerner referred to was never made. There is no data to determine whether the County’s directive to another agency to fund and build 13 miles of mass transit service along the expressway route, will actually “promote mass transit use,” as required by the Plan. The burden was on Petitioners to prove that the Plan Amendment is inconsistent with the cited goals and policies. Petitioners did prove that the Plan Amendment is inconsistent with Policy TC-4F, because all the experts agreed that the Plan Amendment does not “shift the travel mode” in this part of the County “from single occupancy vehicle to mass transit.” However, Petitioners did not prove the Plan Amendment is inconsistent with the Plan’s provisions to: “promote mass transit use,” as required by Policy TE-1A; “support[] use of transit,” as required by the Transportation Element Goal; “significantly enhance public transit services and implement transportation system management programs … to provide feasible alternatives to private automobile use,” as required by CON-1B; or maintain an “efficient” mass transit system, as required by the Goal of the Mass Transit Subelement. Petitioners did prove that the Plan Amendment is not supported by data and analysis to determine whether it is internally consistent with the cited goals and policies.
Conclusions For Petitioners, Limonar Development, LLC; Wonderly Holdings, LLC; and Mills Family, LLC: John C. Lukacs, Esquire John C. Lukacs, P.A., Trial Lawyers 75 Valencia Avenue, Suite 600 Coral Gables, Florida 33134 Francisco J. Pines, Esquire Francisco J. Pines, P.A. 3301 Ponce de Leon Boulevard, Suite 220 Coral Gables, Florida 33134 For Petitioners, Tropical Audubon Society and Michelle Garcia: Paul J. Schwiep, Esquire Coffey Burlington, P.L. 2601 South Bayshore Drive, Penthouse 1 Miami, Florida 33133 Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 For Respondent, Miami-Dade County: Dennis Alexander Kerbel, Esquire Christopher J. Wahl, Esquire Miami-Dade County Attorney’s Office 111 Northwest First Street, Suite 2810 Miami, Florida 33128
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Miami-Dade County Comprehensive Plan Amendment adopted by Ordinance 2018-109 on September 27, 2018, is not “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 30th day of March, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2020. COPIES FURNISHED: Carlos A. Gimenez, Mayor Miami-Dade County Stephen P. Clark Center, 29th Floor 111 Northwest First Street Miami, Florida 33128 Dennis Alexander Kerbel, Esquire Miami-Dade County Suite 2810 111 Northwest First Street Miami, Florida 33128 (eServed) John C. Lukacs, Esquire John C. Lukacs, P.A., Trial Lawyers Suite 600 75 Valencia Avenue Coral Gables, Florida 33134 (eServed) Francisco J. Pines, Esquire Francisco J. Pines, P.A. Suite 220 3301 Ponce de Leon Boulevard Coral Gables, Florida 33134 (eServed) Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest First Street Miami, Florida 33128 (eServed) James Michael Porter, Esquire James M. Porter, P.A. 10th Floor 9350 South Dixie Highway Miami, Florida 33156 (eServed) Paul J. Schwiep, Esquire Coffey Burlington, P.L. Penthouse 1 2601 South Bayshore Drive Miami, Florida 33133 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 6511 Nova Drive Davie, Florida 33317 (eServed) William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) James Uthmeier, Esquire Office of the General Counsel Executive Office of the Governor Suite 209, The Capitol 400 South Monroe Street Tallahassee, Florida 32399-001 (eServed) Barbara Leighty, Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 (eServed)
Findings Of Fact The Legislature created Respondent in 1963 by enacting Chapter 63-573, Laws of Florida, codified as Chapter 348, Part V, Florida Statutes. Section 348.754(1)(a) authorizes Respondent to construct, maintain, and operate the Orlando-Orange County Expressway System. Petitioner constructs highways. In 1991, Respondent awarded Petitioner with two highway construction contracts. The two construction contracts incorporate by reference the 1991 edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction ("Gray Book"). Commonly used in Florida highway construction, especially on state projects, the Gray Book is a code of standards for road and bridge construction projects. In 1993 and 1994, Petitioner requested $5 million from Respondent in extra compensation for the two construction contracts. In reviewing the requests, Respondent asked Petitioner for various documents, claiming that Article 3-8 of the Gray Book entitled Petitioner to receive these documents for audit. Article 3-8 of the Gray Book states: Upon execution of the Contract, [Respondent] reserves the right to conduct any necessary audit of the Contractor's records pertaining to the project. Such an audit, or audits, may be conducted by [Respondent] or its representatives at any time prior to final payment, or thereafter pursuant to 5/13. [Respondent] may also require submittal of the records from either the Prime Contractor, the Subcontractor or both. For the purpose of this Article, records shall include all books of account, supporting documents and papers deemed necessary by [Respondent] to assure compliance with the contract provisions. Failure of the Contractor or Subcontractor to comply with these requirements may result in disqualification or suspension from bidding for future contracts or disapproval as a Subcontractor at the option of [Respondent]. The Contractor shall assure that his Subcon- tractor will provide access to his records pertaining to the project upon request by [Respondent]. Petitioner declined to give Respondent audit access to all the requested records, taking the position that the records were not necessary and that Article 3-8 did not give Respondent the access to records claimed by Respondent. By letter dated July 11, 1995, Respondent notified Petitioner that it intended to consider whether to suspend or disqualify Petitioner from participating in future public bidding on Respondent's construction contracts. The letter advised that Respondent would hold a public hearing to consider the facts and circumstances of [Petitioner's] failure to provide contract documents requested by [Respondent]. At the hearing the Board will decide whether to suspend or disqualify [Petitioner] for its failure to comply with the Contract." The July 11 letter informed Respondent that it had the right to be represented by counsel, to present oral and written evidence, to cross-examine witnesses, and to present rebuttal evidence. The letter prohibited ex parte communications with members of Respondent's board because they would be acting in a quasi-judicial capacity. The Orlando-Orange County Expressway System consists of about 81 miles of multi-lane limited access highway in Orange County. Respondent's offices are in Orange County, which is where its employees work. Respondent establishes its own annual budget and sets tolls without review by the Legislature or Department of Transportation. Respondent compensates its employees without regard to State of Florida personnel policies or guidelines. Respondent's employees do not receive State of Florida health insurance benefits. They receive health insurance through the Orange County group health policy that covers all otherwise- covered Orange County employees. Transportation issues involve frequent contact between Respondent's employees and employees of the Public Works Department of Orange County and the City of Orlando. Contact between Respondent and the governments in and of surrounding counties is largely limited to participation in the Greater Orlando Metropolitan Planning Organization. In general, Respondent engages in transportation planning for, and studies the transportation needs of, Orange County, but not other counties. In 1994 the Legislature enacted Chapter 94-237, Laws of Florida. Section 11 of Chapter 94-237 created 348.7545, Florida Statutes (1994 Supp.), which authorized Respondent to construct, finance, operate and maintain that portion of the Western Beltway known as the Western Beltway Part C, extending from Florida's Turnpike near Ocoee in Orange County southerly through Orange and Osceola Counties to an interchange with I-4 near the Osceola-Polk County line . . .. Chapter 94-237, Laws of Florida, did not expressly authorize Respondent to exercise powers of eminent domain in Osceola County. In 1995 the Legislature enacted Chapter 95-257, Laws of Florida. Section 61 of Chapter 95- 257 amended 348.7545 to allow expressly Respondent to use its eminent domain power in connection with the Western Beltway Part C. Not considering itself an agency subject to Chapter 120, Florida Statutes, Respondent has not complied with any requirements of Chapter 120 except for the adoption of rules governing bid protests, as provided by 120.53(5). Respondent has not adopted as rules pre-qualification procedures and requirements, disqualification and suspension procedures and provisions, or procedures for formal hearings. Respondent has adopted various rules and policies, but not in accordance with Chapter 120. As far as it is aware, Respondent has not previously considered whether to suspend or disqualify a contractor, and therefore Respondent issued the July 11 letter on an ad hoc basis.
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2004-026 on August 24, 2004, 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 was adopted on August 31, 1989, and became effective on September 11, 1989. In 2000, the County amended its Plan by establishing a Managed Growth Tier System, which includes five classifications of land (Urban/ Suburban, Exurban, Rural, Agricultural Reserve, and Glades), along with three classes of service areas within the County to guide delivery of public services: Urban Area, Limited Urban Service Area, and Rural Service Area (RSA). It also assigned different levels of service for potable water and wastewater for each service area. At the same time, the County amended its FLUE to add a new Policy 3.4-c, which provides as follows: The County shall neither provide nor subsidize the provision of centralized potable water or sanitary sewer in the Rural Service Area, unless urban levels of service are required to correct an existing problem, prevent a projected public health hazard or prevent significant environmental degradation, or the areas meet the criteria described in Future Land Use Policy 3.4.b. The County intended Policy 3.4-c to implement the Managed Growth Tier System by limiting the provision of centralized utility service in the Rural Tier. The effect of this new policy was to prohibit the County from providing urban levels of utility services outside its existing service area boundaries in the RSA unless necessary to correct or prevent a public health hazard, existing problem related to urban levels of service, or environmental degradation. In February or March 2003, the County Planning Department began assessing ways to address the problem of overlapping utility service in the RSA. Shortly thereafter, the Florida Legislature passed the Scripps Law (Chapter 2003- 420, Laws of Florida), which took effect on November 3, 2003. Both of these factors led to the development of the Amendments in issue here. In late 2003, the County staff began the actual development of new amendments to its Plan (also known as Round 04-1 Plan Amendments) that would allow the County to provide services into the RSA. More specifically, the staff proposed to add a new FLUE Policy 3.1, which (as finally drafted) read as follows: The Palm Beach County Water Utilities Department shall provide potable water, reclaimed water and wastewater service to all unincorporated areas of the County except those unincorporated areas where the Palm Beach County Board of County Commissioners has entered or enters into a written agreement that provides utility service area rights to a public or privately owned potable water, reclaimed water, and/or wastewater utility, or in areas where the Palm Beach County Water Utilities Department is specifically excluded from providing utility service by Florida law. Palm Beach County Water Utilities Department shall continue to provide utility services to incorporated areas where service is already being provided by the County, or as provided for under utility service area agreements or as allowed for by law. In general terms, the new policy designated the County as a service provider of water and wastewater services for unincorporated areas of the County where the County has, or will enter into, interlocal agreements except where excluded by interlocal agreement or by law. The effect of the amendment is to allow the County to extend potable water and wastewater services to unincorporated areas of the County, particularly "the western communities," where it currently does not do so. The County staff also proposed to delete FLUE Policy 3.4-c, described in Finding of Fact 1, which was previously adopted in 2000. Finally, the County staff proposed to delete another policy adopted in 2000, CAI Policy 1.5-c, which read as follows: Urban levels of service shall not be provided by any governmental entity (outside of its existing service area boundary) within the Rural Service Area of the unincorporated area, except where: The Rural Service Area receives urban services pursuant to Objective 1.1 in the Element, or An urban level of service is required to correct a demonstrated public health, or Development on a parcel in the Rural Tier that is adjacent to water and/or sewer lines which existed prior to the adoption of the Comprehensive Plan in 1989 shall be allowed to connect to those existing lines and shall be allowed to connect to public sewer and/or water when required by the Public Health Department. This policy shall not allow the extension of new water and/or sewer lines into the Rural Tier to serve development without first amending the Service Area Map and the Future Land Use Atlas to reflect a change in the service area boundary. By deleting these two provisions, the County would no longer be prevented from providing utility services in the RSA unless certain conditions were met. (The staff also proposed to delete FLUE Policy 1.4-k, but that deletion is not in issue in these proceedings.) On January 14, 2004, the County initiated the adoption process by transmitting Notice of the Amendments to the Intergovernmental Plan and Amendment Review Committee (IPARC), which is made up of all the local governments and special districts in the County, including the City, Wellington, SID, and ITID. IPARC acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC in turn distributed the notice to its members, including the City, Wellington, SID, and ITID. After a public hearing on March 12, 2004, before the County's Local Planning Agency (known as the Land Use Advisory Board), by an 11-0 vote it recommended denial of Round 04-1 Plan Amendments and recommended that the County meet with the affected parties to resolve problems voiced by various attendees, including the City, SID, and ITID. On April 2, 2004, the County held a meeting with interested persons in an attempt to resolve objections to the Amendments before they were presented to the Board of County Commissioners. The objections were not resolved. On April 5, 2004, by a 5-0 vote, the Board of County Commissioners approved transmittal of the Amendments to the Department, other commenting agencies, and each unit of local government or governmental agency that had filed a written request for copies of the Amendments. The Amendments were transmitted to the Department on April 15, 2004. Between January 2004 and August 2004, the County held at least 37 meetings with utilities and other interested persons to discuss the Amendments, including three meetings with the City, at least five meetings with SID, at least ten meetings with ITID, and at least two meetings with Wellington. In addition, the County invited all utilities to attend meetings on April 28, 2004, at three locations to discuss utility service area boundaries. These meetings were attended by approximately 25 different utilities, including the City, SID, ITID, and Wellington. As a result of these meetings, the County prepared and distributed utility service area maps in an attempt to demonstrate the necessity for better coordination between utilities. On May 21, 2004, the Treasure Coast Regional Planning Council notified the County of no objection or comments regarding the Amendments. On June 19, 2004, the Department issued its Objections, Recommendations, and Comments Report, which did not identify any objections, recommendations, or comments with respect to the Amendments. On June 22, 2004, the South Florida Water Management District (District) notified the Department of no objections or comments regarding the Amendments. After a public meeting on August 24, 2004, by a 5-1 vote, the Board of County Commissioners adopted Ordinance No. 2004-26 enacting the Amendments, and they were transmitted to the Department on September 14, 2004. On October 29, 2004, the Department issued its Notice determining the Amendments were in compliance. On November 19, 2004, Petitioners (except Wellington) filed Petitions challenging the Amendments. Wellington filed its Amended Petition on December 16, 2004. The Parties and Their Standing The City is a municipality and adjoining local government of the County, operating its own water and wastewater utility system. The City owns the largest water treatment plant in the County and has an extensive wastewater treatment system, including partial ownership in the East Central Regional Water Reclamation Facilty, the largest wastewater plant in the County. It owns property and currently provides bulk service to entities located within the unincorporated area of the County, including ITID. It submitted written objections to the County during the adoption process and has standing to bring this action. SID is an independent special district created by special act of the legislature in 1970. It lies within the unincorporated area of the County and has the authority to provide water and wastewater service within and without its boundaries. At present, SID provides potable water service within and without its boundaries, but only provides wastewater service within its boundaries. SID owns property in the unincorporated area and submitted objections to the County during the adoption process. These facts establish that SID has standing as an affected person to challenge the Amendments. Callery-Judge is a limited partnership, which owns and operates citrus groves on property located within the unincorporated area. It also submitted objections to the County during the adoption process. Callery-Judge is an affected person and has standing to participate in this matter. Mr. Roberts owns property in the unincorporated area, including Callery-Judge, of which he is the General Manager. He submitted objections to the Amendments during the adoption process and is an affected person. ITID is an independent special district created by special act of the legislature in 1957. (In 2002, the Legislature amended and reenacted ITID's enabling legislation.) In 1998, ITID began operating a water and wastewater system within the unincorporated area. ITID does not generate its own potable water or treat its wastewater. It obtains bulk water from the City and SID and bulk wastewater service from the City. ITID owns property within the unincorporated area and submitted objections to the amendment during the adoption process. As such, it is an affected person within the meaning of the law. Wellington is a municipality and adjoining local government of the County and operates a utility providing water and wastewater service within its boundaries and outside to several developments. It also submitted objections to the County during the adoption of the Amendments. Because Wellington does not own property or operate a business within the unincorporated area of the County, in order to demonstrate standing, it must show that the Amendments will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within its jurisdiction. See § 163.3184(1)(a), Fla. Stat. Wellington bases its standing on alleged increases in traffic and the use of parks within its boundaries, which purportedly will occur as a result of the Amendments. While Wellington could not give a precise amount (in terms of dollars) of those impacts, the testimony of its Director of Community Services established that the availability of centralized water and sewer services in the areas adjoining Wellington will arguably lead to higher density development patterns, which in turn will lead to an increased need for publicly funded infrastructure. As such, Wellington is an affected person and has standing to challenge the Amendments. The Department is the state planning agency charged with responsibility for reviewing and approving comprehensive plans and amendments. The County is a political subdivision of the State of Florida and is responsible for adopting a comprehensive plan and amendments thereto, including the Amendments. The County Water Utilities Department currently serves approximately 425,000 people, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. The Current Plan As noted above, the County initially adopted its current Plan on August 31, 1989, by Ordinance No. 89-17. The Plan has been amended numerous times since its initial adoption. The original 1989 Plan and all subsequent amendments up to the ones at issue in this proceeding have been found in compliance by the Department. The current Plan is made up of sixteen elements, nine of which are mandatory, and seven of which are optional. The parties have indicated that the Utilities Element, CIE, Intergovernmental Coordination Element, and FLUE are relevant to this controversy; therefore, a brief description of their content and purpose is necessary. The purpose of a Utilities Element is to provide necessary public facilities and services correlated to future land uses. See § 163.3177(6)(c), Fla. Stat., and Fla. Admin. Code R. 9J-5.011. The existing Utilities Element contains potable water, wastewater, drainage, and solid waste sub- elements. The aquifer recharge sub-element is found in the Coastal Management Element. The Utilities Element and the aquifer recharge sub-element of the Coastal Management Element constitute the "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element" referenced in Section 163.3177(6)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.011. The existing Utilities Element has been found in compliance with applicable provisions of statute and rule. Section 163.3177(3)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.016 contain requirements for the capital improvements element of a comprehensive plan. The existing CIE complies with these requirements. Objective 1.7 and Policy 1.7-a describe how the County implements the CIE. Pursuant to these requirements, the CIE is updated annually at the same time as the County budget. Table 10 of the CIE reflects the water utilities revenue and expenditures for the then current budget year and five years into the future. Table 10 was not updated when the Amendments were adopted because any future changes to the County's capital expenditures resulting from the Amendments would be made through the annual budget update process. The Intergovernmental Coordination Element contains provisions encouraging coordination between the County and adjoining municipalities and special districts in order to more efficiently meet the needs of the County residents. (There are more than 25 municipalities and special districts within the County.) This Element has previously been found in compliance with Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015. One of the coordination tools identified in the Intergovernmental Coordination Element is the IPARC, described in Finding of Fact 5, which acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC distributes notice of plan amendments to all members, who then have the opportunity to provide comments regarding the proposed action. Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.006 contain requirements for the future land use element of a comprehensive plan, including the future land use map (FLUM). According to the Plan, the FLUE "is the nucleus of the . . . Plan" and "defines the components of the community and the interrelationship among them, integrating the complex relationships between land use and all of the other elements of the Plan that address the physical, social, and economic needs of the people who live, work, and visit Palm Beach County." Both the existing FLUE and the current FLUM have been found in compliance. The Amendments do not alter the FLUM, but they do change FLUE Policy 3.1-c and delete FLUE Policy 3.4-c. As noted above, in 2000 the County adopted a Managed Growth Tier System, which is a planning tool intended to manage growth and protect varying lifestyles in the County. The Managed Growth Tier System consists of five categories or tiers, which are described in Objective 1.1 of the Plan. Objectives 1.2 through 1.6 govern development within the five tiers. FLUE Table 2.1-1 establishes permitted densities for each of the tiers. The Amendments do not modify any Goals, Objectives, or Policies governing the five tiers, with the exception of FLUE Policy 1.4-k. However, Petitioners have not challenged the proposed deletion of FLUE Policy 1.4-k and it is not one of the Amendments at issue in this proceeding. Additionally, the Amendments will not alter the permitted densities for any of the tiers. Concurrency Management refers to the system adopted in the CIE to ensure that infrastructure, which meets or exceeds the established minimum level of service standards, is in place concurrent with development approval. According to FLUE Policy 3.5-a, development orders and permits shall not be approved unless services and facilities meet or exceed the minimum levels of service. FLUE Objective 3.1 establishes three graduated service areas in Palm Beach County -- the Urban, Limited Urban Service, and Rural Service Areas. Each service area corresponds to one or more of the five tiers. The minimum levels of service required for each area are listed in FLUE Table 3.1-1. According to FLUE Table 3.1-1, FLUE Policy 3.5-a, and Utilities Element Policies 1.2-g and 1.3-e, the minimum levels of service in the RSA for potable water and sewage are on-site wells and septic tanks, respectively. With the exception of water and sewer, the other minimum levels of service are the same for all three service areas. The Amendments do not alter the minimum levels of service for any service area. Through its planning expert, Wellington contended that the Amendments will cause a de facto change to the minimum levels of service. However, the extension of centralized water and sewer service into the RSA does not change the established minimum levels of service. Petitioners also argue that the Amendments will increase minimum levels of service in the RSA for traffic and parks. However, the minimum levels established in FLUE Table 3.1-1 for all services and facilities, other than potable water and sanitary service, are County-wide standards. Reasons for Adopting the Plan Amendments Policy 3.4-c did not have its intended effect because it prevented the County from providing service to the Rural Tier. After 2000, repeated efforts by the County to negotiate the service areas of the numerous entities operating utility services in the unincorporated area were unsuccessful. Indeed, "there was not a willingness of many utility providers to agree on anything." This created a lack of coordination and planning as to the provision of services in the Rural Tier. The City, SID, and ITID each have utility service areas which overlap the service area of other utility providers. In particular, portions of the Acreage, a community located in the central-western unincorporated area of the County, fall under the claimed utility jurisdiction of SID, ITID, Cypress Grove Community Development District, and the Village of Royal Palm Beach (Royal Palm Beach). The City is also rapidly expanding service in the unincorporated area by entering into bulk water service agreements with a number of utilities located in the Rural Tier, including Royal Palm Beach, Seacoast Utilities Authority, and ITID. The City intends further expansion of bulk service in the Rural Tier, so as to increase utility revenues. It views the Amendments as affecting its substantial interests by potentially limiting these revenues. Royal Palm Beach claims an exclusive utility service area which overlaps the utility service areas claimed by SID and ITID. Royal Palm Beach is located entirely within the legislative boundaries of ITID and claims all of ITID as its service area. The Amendments support the authority granted to the County by the Scripps Law. That law gives the County the exclusive right to provide water and wastewater service to the Scripps Biomedical Research Facility and to construct utility facilities within and without the boundaries of the Scripps project. The enactment of the Scripps Law reinforced the need for the Amendments, as the Scripps Biomedical Research Facility will be located in the unincorporated area. Existing FLUE Policy 3.4-c is arguably inconsistent with the Scripps Law because it prevents the County from providing utility service in the RSA. Since the Scripps Law supersedes all other contrary provisions of Florida Law, it logically follows that FLUE Policy 3.4-c should be repealed. The Amendments are also supported by the provisions of the County Code of Ordinances Sections 27-16 through 27-22, which codify County ordinances that were adopted in the 1970s and deal with utility service. These ordinances authorize the County to designate a Control Area in the unincorporated area and to require County approval of any water and wastewater facilities constructed in these areas. In summary, the County adopted the Amendments to avoid service area disputes between utility providers such as those described above, to prevent wasteful and duplicative utility services, to implement the Legislature’s mandate regarding the Scripps Biotechnology Park, to ensure a sufficient water supply to meet the reasonable development needs of the unincorporated area, and to enforce the provisions of the County Code of Ordinances. Petitioners' Objections Data and analysis Petitioners contend that the only data and analyses submitted by the County to support the Amendments are contained in a rather brief County Staff Report (Petitioners' Exhibit 5), and that no other documentation was actually forwarded to the Department. They further contend that the Amendments must be based on demographic, economic, and fiscal studies, and that none were utilized by the County. Because of these omissions, they argue that the Amendments violate relevant statute and rule provisions and are not in compliance. Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2) require that plan amendments be based on relevant and appropriate data and analyses applicable to each element. In determining whether a plan amendment complies with this requirement, the Department reviews each amendment on a case-by-case basis. In doing so, it does not require the same amount or type of data for all plan amendments. See, e.g., Zemel et al. v. Lee County et al., DOAH Case No. 90-7793 (DOAH Dec. 16, 1992, DCA June 22, 1993)(projections of aquifer thickness and transmissivity do not require the same precision as calculating volume-to- capacity ratios for levels of service on road segments); 1000 Friends of Florida et al. v. Department of Community Affairs et al., DOAH Case No. 04-4492GM, 2005 WL 995004 at *15 (DOAH April 28, 2005, DCA May 9, 2005)("a numeric analysis is not necessary to justify industrial uses since they may be goal- based and aspirational"). For example, if amendments merely represent a policy or directional change and depend on future activities and assessments (i.e., further analyses and decision-making by the local government), the Department does not require the degree of data and analyses that other amendments require. (These amendments have sometimes been referred to as aspirational amendments. See Collier County v. City of Naples et al., DOAH Case No. 04-1048GM, 2004 WL 1909265 at *5 and *6 (DOAH Aug. 24, 2004, DCA Dec. 28, 2004)). Conversely, amendments which are mandatory in nature, that is, amendments which are required to be implemented by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5, require more data and analyses. Thus, under Department interpretations of the relevant statutory and rule provisions, if an amendment does not have an immediate impact on the provision of services in the unincorporated area, is policy- based, does not require any capital improvement expenditures at the time the amendment is adopted, and simply represents a directional change in the County's long-term water utility planning, it is similar to an aspirational amendment and can be based on less data and analyses than might otherwise be required. Here, the County’s actual policy regarding utility service areas will depend on future activities and assessments. The Amendments do not require the County to take any immediate action. The Amendments do not mandate that existing utility customers in the RSA switch to the County. The Amendments do not authorize any new development in the Rural Tier, and any future development would have to be approved by the Board of County Commissioners through the normal development approval process. Therefore, the Amendments are akin to an aspirational amendment and do not require the degree of data and analyses that are required for other amendments. The County Staff Report identifies, albeit in brief fashion, data and analyses in support of the Amendments. It provides, among other things, that the Amendments are necessary because "[t]he lack of County participation as a service provider has created a void in effective long-term utility planning, resulting in duplicative service lines, inefficient services in the RSA, overlapping utility jurisdictions and, absence of some written agreements defining service areas." The Staff Report further identifies the County’s authority to provide service and the necessity for the Amendments to allow the County to provide service to the Biotechnology Research Park in northwest Palm Beach County. In addition, a number of documents presented at hearing provide data and analyses in support of the Amendments. In considering these documents, the undersigned notes that all data or analysis available and existing at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding and may be raised or discussed for the first time at the administrative hearing. Zemel, supra; McSherry et al. v. Alachua County et al., DOAH Case No. 02-2676GM, 2004 WL 2368828 at *54 (DOAH Oct. 18, 2004, DCA May 2, 2005); Melzer et al. v. Martin County et al., DOAH Case Nos. 02-1014GM and 02-1015GM, 2003 WL 2150756 at *33 (DOAH July 1, 2003, DCA Sept. 26, 2003 and Oct. 24, 2003). The District's Districtwide Water Supply Assessment identifies future potable water demands for various utilities in the County. The District's Lower East Coast Regional Water Supply Plan describes the available raw water supply to meet future demands in the County. The District's CUP-CERP (Consumptive Use Permit-Comprehensive Everglades Restoration Plan) Guiding Principles lists interim water use permitting guidelines, which indicate utilities may experience problems obtaining permitted allocations beyond what is needed to meet their 2005 demands. District Water Use Permit 50- 00135-W is the County's 20-year water use permit, which confirms that the County is the only utility in the unincorporated area with a guaranteed, long-term potable water allocation. The information contained in these documents confirms the County's ability to act as the default water utility provider in the unincorporated area. The County Linking Land Use and Water Supply Plan, Water and Wastewater Master Plan, Reclaimed Water Master Plan, Raw Water Master Plan, 20-Year Wastewater Collection System Master Plan, and Projected Yearly Capital Expenditures each provide data and analysis, which support the County's ability to serve as the default utility provider in the unincorporated area. As a water management district study, the District's documents are professionally accepted sources, which constitute appropriate data and analyses under Florida Administrative Code Rule 9J-5.005(2)(c). Similarly, the County's reports constitute existing technical studies, which are also appropriate data and analysis. Petitioners contend that the County was required to collect new data and prepare a comparative analysis of the County Water Utilities Department and other utility providers in the unincorporated area. However, according to Florida Administrative Code Rule 9J-5.005(2)(b), local governments are not required to collect new data in support of a plan amendment. Further, neither Florida Administrative Code Rule 9J-5.005(2) nor Section 163.3177, Florida Statutes, requires a comparative analysis. It is at least fairly debatable that the Amendments are supported by relevant and adequate data and analyses. Intergovernmental Coordination Petitioners also contend that in order to comply with the Intergovernmental Coordination Element of the Plan, the County must inventory and analyze the facilities and services provided by other utility providers in the areas affected by the Amendments. In other words, they contend that without data and analysis relative to other providers, the coordination function is incapable of being done and is meaningless and renders the Amendments inconsistent with Florida Administrative Code Rule 9J-5.015. (That rule sets forth in detail the data requirements upon which the element in a local government's comprehensive plan must be based, and the goal statements, specific objectives, and policies which must be found in the element.) Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 set forth requirements for the intergovernmental coordination element of a comprehensive plan. The existing Intergovernmental Coordination Element has been found to be in compliance. The Amendments do not modify this element. Although not required for purposes of compliance, the County followed intergovernmental coordination procedures in the comprehensive plan when adopting the Amendments. The Amendments were submitted to IPARC for review by member governments prior to their consideration by the Board of County Commissioners. The County met with other utility providers and interested persons no less than 37 times to discuss the Amendments. Further, Petitioners' own witnesses concede that their representatives attended multiple meetings with the County regarding the Amendments. Such efforts demonstrate that the County substantively complied with the Intergovernmental Coordination Element. Petitioners' contention that these meetings were not conducted in good faith has been rejected. Petitioners implicitly suggest that intergovernmental coordination means acquiescing to the position of an objector. If this were true, adjacent local governments would have veto power over the County's ability to enact plan amendments, a result not contemplated by the statute. The intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 do not require that local governments resolve all disputes regarding a comprehensive plan and its amendments to the satisfaction of all interested persons, but only that the local government take into consideration input from interested persons. See, e.g., Department of Community Affairs et al. v. Lee County et al., DOAH Case Nos. 89-1843GM and 90-7792GM, 1990 WL 749359 (DOAH Jan. 7, 1993, Admin. Comm. Feb. 10, 1994). The numerous meetings held by the County demonstrate adequate consideration of opposing views. It is at least fairly debatable that the County satisfied the intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes. Economic Feasibility/Comparative Analysis Petitioners argue that the Amendments fail to comply with Section 163.3177(2), Florida Statutes, which requires that "the comprehensive plan shall be economically feasible." Petitioners claim that in order to establish economic feasibility, the County first should have conducted a comparative economic analysis of the cost of utility service in the unincorporated area by various existing and hypothetical service providers. However, this construction of the statute is at odds with the Department's interpretation. The Department does not interpret the economic feasibility requirement of Section 163.3177(2), Florida Statutes, as requiring such a comparison. Instead, it construes the statute as only requiring that a plan amendment be realizable in financial terms, that is, that the local government has the financial ability to achieve what is specified in the amendment. See Resolution Trust Corp. v. Department of Community Affairs et al., DOAH Case No. 94- 5182GM, 1995 WL 1052797 *6 (DOAH April 19, 1995, Admin. Comm. Sept. 4, 1998)("Economic feasibility means plans should be realizable in financial terms."). Compare Southwest Fla. Water Mgmt. District et al. v. Charlotte County et al., 774 So. 2d 903, 916 (Fla. 2d DCA 2001), where the Court interpreted the use of the term "economically feasible" in a proposed Basis of Review provision as meaning "financially feasible or financially 'doable' . . . [and the] financial ability of a WUP applicant to institute reuse." The Department's interpretation of the statute was not shown to be unreasonable or clearly erroneous. The evidence shows that the Amendments are financially realizable. The County Water Utilities Department is one of the financially strongest utilities in the nation. It has the highest municipal bond rating (AAA) granted by the three major rating agencies. As of August 24, 2004, no other utility in the State of Florida had achieved an AAA rating from the three bond rating agencies, and the County Water Utilities Department is among only a handful of utilities nationwide to have achieved that status. Petitioners have acknowledged that the County is a very strong utility from a financial perspective. Given the County's strong financial state, it is qualified and able to serve as the default provider in the unincorporated area. In summary, it is fairly debatable that the Amendments are economically feasible as the term is used in Section 163.3177(2), Florida Statutes, because the County has the financial ability to extend utility service to the unincorporated area. Urban sprawl Wellington (but not the other Petitioners) essentially contends that the Amendments will promote urban sprawl because the County will now allow new urban services (water and wastewater) into undeveloped areas thereby resulting in urban development. Florida Administrative Code Rule 9J-5.006(5) contains standards discouraging the proliferation of urban sprawl. Existing provisions in the Plan, including the Managed Growth Tier System, prevent urban sprawl within the County. Florida Administrative Code Rule 9J-5.006(5)(k) provides in part that "if a local government has in place a comprehensive plan found in compliance, the Department shall not find that 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." The Amendments do not affect existing growth management provisions in the Plan and thus will not exacerbate urban sprawl. Although not required, the amendment of FLUE Policy 1.4-k, which Petitioners did not challenge, will also have the effect of maintaining the status quo with respect to urban sprawl. At the same time, the Amendments do not directly or indirectly authorize new development and are only aspirational in nature. Any extension of water and sewer lines into the unincorporated area does not necessarily create urban sprawl because development is not automatically authorized by these activities. Even Wellington's planning expert concurred that urban sprawl is not caused by the provision of utility services, but by the Board of County Commissioners' approval of development orders. It is at least fairly debatable that the Amendments will not encourage urban sprawl in contravention of the Plan.2 Internal consistency Petitioners next contend that the Amendments fail to comply with Sections 163.3177(2), 163.3177(10)(a), and 163.3187(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), which require that all elements of a comprehensive plan be consistent with each other. In addressing this objection, only those inconsistencies expressly alleged in their Petitions and Amended Petition will be considered. See, e.g., Heartland Environmental Council v. Department of Community Affairs et al., DOAH Case No. 94- 2095GM, 1996 WL 1059751 at *19 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996). Future Land Use Element Petitioners first contend that the Amendments are inconsistent with Goal 3, Objective 3.1, and Policies 3.1-a and 3.1-b of the FLUE. These provisions require that the County "define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner"; that the County establish graduated service areas "to distinguish the levels and types of services needed within a Tier, consistent with the characteristics of the Tier," which include "the need to provide cost effective services"; that the County establish Urban, Limited Urban Service, and Rural Service Areas based on several factors in Table 3.1.1, including "[t]he cost and feasibility of extending services"; and that the County review minimum levels of service "during preparation of the Evaluation and Appraisal Report [EAR] and the Comprehensive Plan as amended." The latter provision also requires that each service provider determine the maximum and available capacity of their facilities and services for this review. The first broad goal is implemented through the County's existing Managed Growth Tier System and is not affected by the identity of the utility provider. Also, the Amendments do not alter the Managed Growth Tier System, nor do they alter the existing minimum levels of service required for the RSA. Similarly, FLUE Objective 3.1 is not affected, as the Amendments only have the potential to change the utility provider in certain areas, and not the level of service provided within the RSA. Further, the Amendments do not change the existing service area boundaries and established service area definitions. As to Policy 3.1-a, the service areas have been established and found in compliance and the Amendments do not alter the service area designations or Table 3.1-1. Therefore, they are not inconsistent with Policy 3.1-a. Finally, Policy 3.1-b is not affected by the Amendments because the minimum levels of service are not altered and the Amendments are not the product of an EAR. Capital Improvements Element – Table 10 Table 10 of the CIE describes water and sewer revenues, operating revenues, federal/state grants, other revenues, bond/ loan proceeds, fund balances, total water and sewer revenues, water and sewer operating expenditures, water and sewer capital projects, annual surplus/deficit, and cumulative surplus/deficit for fiscal years 2004-2009. Petitioners contend that the Amendments are inconsistent with this provision because the Table has not been amended to reflect the expenditures that will be made by the County as a result of the Amendments. This Table is not affected because the Amendments do not require any changes to the County's capital expenditures. If changes do occur as a result of the County's planned extension of utility service into the unincorporated area, the capital improvements associated with extension of service will be addressed in subsequent annual updates of Table 10. Intergovernmental Coordination Element Petitioners contend that the Amendments are inconsistent with Goal 1 and Objective 1.1 of the Intergovernmental Coordination Element, which require the County to "provide a continuous coordination effort with all affected governmental entities" and to "utilize existing mechanisms to coordinate planning efforts with the plans of school boards, other units of local government providing services, adjacent municipalities, adjacent counties, the region, the State, and residents of Palm Beach County." Petitioners essentially claim that the Amendments were adopted and transmitted without coordination with other local governments, as required by the goal and policy. As explained above, the evidence shows that the Amendments were submitted to IPARC for review by each of the local governments and special districts located in the County, these entities were given ample opportunity to comment or object to the Amendments, and the County utilized existing mechanisms to coordinate planning efforts. Therefore, the Amendments are consistent with these portions of the Intergovernmental Coordination Element. Petitioners also contend that the Amendments conflict with Goal 4, Policy 4.1-a, and Policy 4.1-b of the Intergovernmental Coordination Element. The broad goal relates to coordination of "service provision to assure the most effective and efficient service delivery for the residents of Palm Beach County and its municipalities," while the two policies require that the County coordinate with special taxing districts and each municipality within the County during "the concurrency management and development review processes" and in defining the "ultimate boundaries of that entity's sewer and water service areas." The Amendments are consistent with the goal because their purpose is to create more effective and efficient service delivery by encouraging utility providers to enter into agreements which establish exclusive service areas and eliminate overlapping service areas. For similar reasons, the Amendments are consistent with Policy 4.1-a because the County coordinated with each of the special taxing districts through IPARC and numerous subsequent meetings relating to the Amendments. Finally, the main purpose of the Amendments is to prevent overlapping utility service areas and to encourage utility providers to enter into agreements defining service areas. Therefore, they are not inconsistent with Policy 4.1- b. Treasure Coast Regional Planning Council Plan Petitioners next allege that the Amendments are inconsistent with Goal 8.1, Regional Strategy 8.1.1, and Regional Policies 8.1.1.3 and 8.1.1.4 of the Treasure Coast Regional Planning Council's Regional Policy Plan (Regional Policy Plan). In order for a plan amendment to be consistent with a regional policy plan, Section 163.3177(10)(a), Florida Statutes, requires that plan amendments be consistent with the regional plan "as a whole," and that no specific goal or policy be "applied in isolation from the other goals and policies in the plans." Because the Petitions and Amended Petition do not allege that the Amendments are inconsistent with the Regional Policy Plan as a whole, their challenge must necessarily fail. See, e.g., 1000 Friends of Florida, Inc., supra at *38. Even if a provision in the Regional Policy Plan could be viewed in isolation, the Amendments are consistent with Regional Goal Regional Goal 8.1, which requires "public facilities which provide a high quality of life." Nothing in the Amendments would impair the provision of a high quality of life. One of the purposes of the Amendment is to more efficiently provide utility service by defining service areas and improving the provision of services. Regional Strategy 8.1.1 relates to the provision of "levels of public service necessary to achieve a high quality of life cost-effectively." The Amendments are not inconsistent with this strategy, as they are designed to help the County implement the existing objectives and policies relating to this strategy. The purpose of Regional Policy 8.1.1.3 is to "encourage patterns of development which minimize the public cost of providing service, maximize use of existing service systems and facilities and take into full consideration environmental/ physical limitations." As stated above, one purpose of the Amendments is to provide more efficient and cost-effective utility service by encouraging providers to enter into agreements that prevent overlapping service areas and avoid duplication of services. Finally, the purpose of Regional Policy 8.1.1.4 is to "develop local Capital Improvement Programs which maximize development of existing systems before allocating funds to support new public facilities in undeveloped areas." Because the Amendments do not alter the County's Capital Improvement Programs, they do not implicate this policy. State Comprehensive Plan Petitioners further allege that the Amendments are inconsistent with two goals in the state comprehensive plan, which are codified in Section 187.201, Florida Statutes. Like regional policy plans, Section 163.3177(10)(a), Florida Statutes, provides that for purposes of determining consistency, the state plan is to be construed as a whole, with no specific goal or policy applied in isolation from the other goals and policies. If a plan appears to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local comprehensive plan is consistent with the state plan. Petitioners have not alleged that the Amendments are inconsistent with the state comprehensive plan as a whole. Therefore, their challenge to the Amendments must necessarily fail. See 1000 Friends of Florida, Inc., supra; Heartland Environmental Council, supra. Assuming that a provision within the state comprehensive plan can be viewed alone, Section 187.201(17)(a), Florida Statutes, provides that "Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." Petitioners contend that because the Amendments fail to protect the public facilities that already exist in the unincorporated area of the County, the Amendments conflict with this goal. The Amendments are not inconsistent with this goal because their purpose is to implement the Plan provisions in a timely, orderly, and efficient manner. Further, the Amendments are consistent with the specific provisions of Section 187.201(17)(b), Florida Statutes. Petitioners also allege that the Amendments contradict the requirements of Section 187.201(20)(a), Florida Statutes, which deals with cooperation between levels of government, elimination of needless duplication, and promotion of cooperation. Again, the purpose of the Amendments is to eliminate duplication and promote cooperation between entities by encouraging utility providers to enter into interlocal agreements with the County that define exclusive service areas and prevent duplication of services. Further, the Amendments are consistent with the specific provisions of Section 187.201(20)(b), Florida Statutes. Other Objections Finally, any other contentions raised in the Petitions and Amended Petition not specifically addressed herein have been considered and found to be without merit.
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 Amendments adopted by Ordinance No. 2004-026 on August 24, 2004, are in compliance. DONE AND ENTERED this 18th day of July, 2005, 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 18th day of July, 2005.
The Issue Whether Resolution No. P54-97 of the Monroe County Planning Commission should be affirmed, reversed or modified.
The Issue Whether Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Each of the four Petitioners owns property in Escambia County and submitted written or oral comments regarding the Plan Amendment to the County between the date the Plan Amendment was transmitted to the Department of Economic Opportunity (“Department”) and the date it was adopted by the County Commission. Escambia County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive land use plan, pursuant to section 163.3167, Florida Statutes (2019). Existing Conditions There are approximately 610 square miles of land in the unincorporated County. Of that, almost half (48.75 percent) is designated for agricultural use. Escambia County can be roughly described as an hourglass shape. The northern portion is dominated by agricultural uses and is overwhelmingly designated as Agricultural on the County’s 2030 Future Land Use Map (“FLUM”). The Agricultural (“AG”) land use category allows a maximum residential density of one dwelling unit per 20 acres (“1du/20 acres”). In contrast, the southern portion has a much more urban development form. The central urban core, located west of the City of Pensacola, is designated as Mixed-Use Urban, with a sprinkling of Industrial designations, and Commercial designations along the major thoroughfares. Radiating out to the north and west of the urban core is a swath of Mixed-Use Suburban, with some areas designated for Recreation, and Commercial along major thoroughfares. Farther west are lands designated for Conservation, which extend to the Perdido River, the County’s western boundary. The “neck” of the hourglass serves as a transition between the agricultural northern portion and the urban and suburban southern portion of the County. The dominant future land use categories in this area are Agriculture, Mixed-Use Suburban, and a category critical to this case, Rural Community, or “RC.” Rural Communities According to the Comprehensive Plan (“the Plan” or “the existing Plan”), the RC FLUM category is: ntended to recognize existing residential development and neighborhood serving nonresidential activity through a compact development pattern that serves the rural and agricultural areas of Escambia County. The designation was applied to pockets of mixed residential and commercial developments that served the agricultural areas in existence when the Plan was originally adopted. The FLUM depicts roughly 20 RCs in the County, almost all of which are located in the northern portion. The uses allowed in RC are agriculture, silviculture, residential, recreational facilities, public and civic, and compact traditional neighborhood supportive commercial. Development is limited to a residential density of two units per acre (“2du/acre”), but does not impose a cap on the intensity of commercial development. The County’s policy in establishing and maintaining RCs is best reflected in Goal FLU 3 and its implementing Objective and Policies, which read, as follows: GOAL FLU 3 Rural Strategies Escambia County will promote rural strategies, including protecting agriculture, silviculture, and related activities, protecting and preserving natural resources and guiding new development toward existing rural communities. OBJ FLU 3.1 Rural Development All new development within the rural areas, including commercial development, that is compatible with the protection and preservation of rural areas[,] will be directed to existing rural communities. Policies FLU 3.1.1 Infrastructure Expenditures. Escambia County will limit the expenditure of public funds for infrastructure improvements or extensions that would increase the capacity of those facilities beyond that necessary to support the densities and intensities of use established by this plan unless such expenditures are necessary to implement other policies of this plan. FLU 3.1.2 Water Facility Extensions. Escambia County will coordinate with potable water providers on any extensions of potable water facilities in the rural area. FLU 3.1.3 FLUM Amendments. During consideration of FLUM amendments, Escambia County will consider the impacts of increased residential densities to the agriculture and silviculture industries as well as public facility maintenance and operation expenditures (i.e., roads, water, sewer, schools) needed to serve the proposed development. FLU 3.1.4 Rezoning. Escambia County will protect agriculture and the rural lifestyle of northern Escambia County by permitting re-zonings to districts, allowing for higher residential densities in the RC future land use category. FLU 3.1.5 New Rural Communities. To protect silviculture, agriculture, and agriculture-related activities, Escambia County will not support the establishment of new rural communities. Designated Sector Area Plan The Designated Sector Area Plan (“DSAP”) was created and adopted in the Plan in 2011, and comprises approximately 15,000 acres in the transitional area between the urban and suburban south County and rural and agricultural north County. The DSAP plans for the location of traditional urban neighborhoods, new suburban and conservation neighborhoods, and regional employment districts, and includes the location of existing and planned public facilities to serve the new development. As noted by the County’s Development Director, Horace Jones, in August 2018, the primary purpose of the DSAP was to “prevent urban sprawl into the agrarian and rural communities . . . so that we can’t continue to intrude upon those prime farmland areas, upon those large parcels of land in the AG category.” At the final hearing, Mr. Jones several times confirmed that the purpose of the DSAP was to prevent urban sprawl into the agricultural areas of the County. As noted by the County’s Senior Urban Planner, Juan Lemos, in August 2018, “We haven’t gotten to that point where we need those agricultural lands to build houses for people . . . or to develop businesses[.]” At final hearing, Mr. Lemos confirmed that his opinion on that issue has not changed.3/ The Plan Amendment The Plan Amendment, plainly and simply, deletes FLU 3.1.5 in its entirety. The Plan Amendment represents a policy change by the County to allow consideration of plan amendments establishing new RCs in the County. Petitioners’ Challenges Petitioners allege the Plan Amendment is not “in compliance” because it: (1) creates internal inconsistencies in the existing Plan; (2) is not based on relevant and appropriate data and an analysis by the local government; and (3) fails to discourage urban sprawl. Internal Inconsistencies Petitioners allege the Plan Amendment is inconsistent with FLU Goal 3, “Rural Strategies,” and Objective 3.1, “Rural Development.” The Goal provides that, in rural areas, the County will “guide[] new development toward existing [RCs],” and the Objective provides that “[a]ll new development within rural areas . . . will be directed to existing [RCs].” The language of both the Goal and Objective is clear and unambiguous. Establishment of new RCs in the rural areas of the County will not guide new development to existing RCs, and will be contrary to both the Goal and the Objective. However, the Plan Amendment neither establishes new RCs nor creates a policy supporting the establishment of new RCs. It merely deletes a policy expressing the County’s intent not to support new RCs. Absent an express policy in the County’s existing Plan, the Plan Amendment is not internally inconsistent with FLU Goal 3 and Objective 3.1.4/ The preponderance of the evidence does not support a finding that the Plan Amendment creates internal inconsistencies in the existing Plan. Data and Analysis The County agenda items for transmittal and adoption hearings on the Plan Amendment were devoid of any supporting data or analysis. The County’s transmittal package to the Department and other reviewing agencies contained only the ordinance adopting the Plan Amendment accompanied by a cover letter. The Plan Amendment reflects a policy change by the County to consider allowing establishment of new RCs. The Plan Amendment does not change the land use of any particular parcel of land in the County, and does not change the uses allowed, or the density or intensity of development allowed thereon. The Plan Amendment does not, in and of itself, require the expenditure of public funds, nor does it immediately impact the provision of public services in the rural areas of the County. Whether the County will establish any new RCs in the rural areas of the County depends on whether a property owner proposes one in the future, and whether the County approves said proposal, after consideration of all applicable Plan policies. The agenda items for both the transmittal and adoption hearings on the Plan Amendment contain the following as background for the Plan Amendment: The Escambia County Board of County Commissioners finds that an amendment to its Comprehensive Plan is necessary and appropriate based on the changing needs within the County; and it is in the best interest of the health, safety, and welfare of the County to amend its Comprehensive Plan. (emphasis added). At the final hearing, the County offered no data to establish the “changing needs within the County” referenced in the background statement. In effect, the County offered no data or analysis at final hearing to support the Plan Amendment. Mr. Jones testified that “there were some discussions [among Commissioners] on why they were adopting this and why they felt it was necessary.” He stated, “the record reflects that they stated that basically it was to give someone an opportunity for them to make a request to make an application [for RC].” Mr. Jones’s hearsay testimony was not corroborated by any non-hearsay evidence. In a series of leading questions, Mr. Jones affirmed that the County Commissioners “found that FLU 3.1.5 restricted the ability of landowners to even request a change to the rural community future land use category,” and “found that the [Policy] restricted the ability of landowners to construct residences due to the density limitations of only one dwelling unit per 20 acres.” Mr. Jones’s testimony was neither credible nor persuasive. Mr. Jones’s explanation of the reason for the Plan Amendment was undermined by his subsequent testimony that the Commission had the authority to approve a plan amendment, changing the designation of property from AG to RC, even without repealing Policy FLU 3.1.5. If that is true, there is absolutely no basis for the Plan Amendment.5/ In a series of leading questions from his counsel, Mr. Jones agreed that “this text amendment was necessary to allow . . . existing residential areas [within AG] to change to RC in order to come into the appropriate future land use category” and “determined that there were areas within the agricultural future land use designation which would benefit from the ability to change to a rural community future land use category.” However, Respondent offered no evidence of the location of any such residential areas outside of existing RC communities, or an explanation of why the assigned AG designation was inappropriate. Nor did Mr. Jones expound on the benefit the Plan Amendment would allegedly bestow on property in the agricultural areas. This testimony was conclusory and lacked foundation. Mr. Jones’s testimony was further undermined by his refusal to speak for the Commission when questioned by the Petitioners regarding the Commission’s reasons for the Plan Amendment, contrasted with his eager agreement with leading statements from his counsel offering reasons for the Plan Amendment. On redirect, when Mr. Jones responded to Petitioner Rogers’s question regarding the County’s reasons for adopting the Plan Amendment, he referred generally to “economic reasons” and vaguely referred to “other public reasons as she previously stated,” deferring to his counsel’s leading questions. (emphasis added). Mr. Jones’s testimony that the Commission’s justification for the Plan Amendment is to allow property owners to apply for a change is unreliable hearsay evidence, later contradicted by his own testimony that the Commission could have approved a land use amendment to that effect prior to adoption of the instant Plan Amendment. Mr. Jones’s testimony is rejected as unreliable and unpersuasive. The preponderance of the evidence supports a finding that the Plan Amendment is not supported by any relevant data or an analysis thereof. Urban Sprawl Petitioners’ final contention is that the Plan Amendment fails to discourage urban sprawl as required by section 163.3177(6)(a)9. That section lists 13 “primary indicators” that a plan amendment does not discourage the proliferation of urban sprawl. Of those, Petitioners allege the Plan Amendment meets the following primary indicators: Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are suitable for development. Promotes, allows, or designated urban development in radial, strip, isolated, or ribbon patterns generally emanating from existing urban developments. * * * Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. Fails to maximize use of existing public facilities and services. * * * Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. * * * Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. In support of this allegation, Petitioners presented the testimony of Christian Wagley, who was accepted as an expert in sustainable development and environmental planning. Mr. Wagley testified that the Plan Amendment will allow a forty-fold increase in density of development allowed in the largely rural, agricultural northern county area (i.e., the increase in density between that allowed in the Agricultural category: 1du/20 acres--and that allowed in RC: 2du/acre), and significantly diminish available Agricultural lands and increase demand for urban services outside the urban area. Mr. Wagley’s testimony is based on the assumption that the County will actually approve, in the future, new RCs in the largely agricultural northern portion of the County. That assumption is insufficient to form the basis of a finding of fact in the instant case. The Plan Amendment does not convert any Agricultural lands to the RC category. It does not “promote, allow, or designate” urban development in the rural areas of the County; “promote, allow, or designate” development in a radial, strip, or isolated pattern; fail to maximize use of existing public facilities and services, or allow for land use patterns which disproportionately increase the cost of providing and maintaining public facilities and services; fail to provide a clear separation between rural and urban uses; or discourage or inhibit infill development or redevelopment. Petitioners introduced a map depicting the United States Department of Agriculture prime soils overlayed on the Agriculturally-designated lands in the County. While this map demonstrates that prime farmland is plentiful in the northern agricultural area of the County, it does not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. The preponderance of the evidence does not support a finding that the Plan Amendment fails to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is not “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of January, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2020.
