The Issue Whether the Department of Community Affairs (Department) should be precluded from prosecuting the instant challenge to the Comprehensive Development Master Plan (CDMP) of Metropolitan Dade County (Metro-Dade, Dade County or County), as amended by Ordinance No. 90-28, on the ground that it did not comply with the statutory prerequisites to instituting such a challenge? Whether the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes, Frances L. Mitchell, Rod Jude, Bruce Rohde and Carol Rist (hereinafter referred to collectively as "the Objectors") are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this matter and pursue their challenge to the CDMP, as amended by Ordinance No. 90-28? Whether Carol Rist's motion to amend her petition for leave to intervene in this matter should be granted? Whether the challenged amendments made to the CDMP through the adoption of Ordinance No. 90-28, specifically those resulting from the approval of Applications 39, 40 and 47, have rendered the CDMP not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes? Whether John H. Wellenhofer is entitled to an award of fees and costs against the Department pursuant to Section 163.3184(12), Florida Statutes?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Metropolitan Dade County: A General Overview Metropolitan Dade County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered by Broward County on the north, by Monroe County on the south and southwest, by Collier County on the northwest and by the Atlantic Ocean on the east. Within the boundaries of Metropolitan Dade County are 1,413,629 acres, or approximately 2,209 square miles, of land and water. The major natural features of the County are the Florida Everglades National Park, tropical vegetation, an Atlantic Ocean coastline with several peninsulas and inlets, including Biscayne National Park at Biscayne Bay, and several barrier islands and reefs. The County contains several bodies of water, including various lakes, rivers and streams. Among the most noteworthy water bodies are the Intracoastal Waterway in the eastern part of the County and the expansive wetland systems and their accompanying wildlife habitat located primarily in the western part of the County. Among the major man-made features of the County are I Florida Turnpike, the Metrorail System, canals, causeways connecting Miami Beach and the barrier islands to the mainland, Miami International Airport, Kendall Airport, and Homestead Air Force Base. Metropolitan Dade County is Florida's most populous county with a population approaching two million people. On average, Dade County's population has grown by approximately 36,000 persons per year since the 1970's. There are 26 incorporated municipalities located in Metropolitan Dade County, including the City of Miami, whose downtown area may be viewed as the principal focal point of the entire metropolitan area. Metropolitan Dade County Home Rule Amendment, Charter and Selected Ordinances In 1956, the statewide electorate adopted Article VIII, Section 11 of the 1885 Florida Constitution granting "the electors of Dade County, Florida, . . . power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body." 4/ The following year, the electors of the County adopted such a home rule charter (Charter). Section 1.01 of the Charter provides that the "Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government." The power to "[p]repare and enforce comprehensive plans for the development of the county" is expressly mentioned in Section 1.01 as within the Board's authority. Other powers of the Board specifically enumerated in Section 1.01 include the power to provide, regulate, develop and enforce master plans for the control of traffic; to provide and regulate sewage collection and disposal, waste collection and disposal and water supply programs; to establish and administer drainage programs; to establish and administer conservation programs; and to establish and administer housing programs. Section 4.07 of the Charter establishes a Department of Planning as a unit of central metropolitan County government. This section provides as follows: The department of planning shall be headed by a planning director appointed by the County Manager. The planning director shall be qual- ified in the field of planning by special training and experience. Under the supervision of the Manager and with the advice of the Planning Advisory Board elsewhere provided for in this Charter, the planning director shall among other things: Conduct studies of county population, land use, facilities, resources, and needs and other factors which influence the county's development, and on the basis of such studies prepare such official and other maps and re- ports as, taken together, constitute a master plan for the welfare, recreational, economic, and physical development of the county. Prepare for review by the Planning Advi- sory Board, and for adoption by the Board of County Commissioners, zoning, subdivision, and related regulations for the unincorporated areas of the county and minimum standards governing zoning, subdivision, and related re- gulations for the municipalities; and prepare recommendations to effectuate the master plan and to coordinate the county's proposed capital improvements with the master plan. Review the municipal systems of planning, zoning, subdivision, and related regulations and make recommendations thereon with a view to coordinating such municipal systems with one another and with those of the county. By ordinance, codified in Section 2-106.1 of the Code of Metropolitan Dade County, the Department of Planning has been designated as the County's local planning agency "responsible for the preparation of the Comprehensive Development master plan for the county." Section 4.08(A) of the Charter directs the Board of County Commissioners to, "by ordinance create a Planning Advisory Board." The Board has done so. The Planning Advisory Board (PAB), as established by the Board, is a nine-member body. The members of the PAB are citizens appointed by the Board. Section 5.02 of the Charter describes the powers that may be exercised by the County's municipalities. It provides as follows: Each municipality shall have the authority to exercise all powers relating to local affairs not inconsistent with this Charter. Each municipality may provide for higher standards of zoning, service and regulation than those provided for by the Board of County Commis- sioners in order that its individual character and standards may be preserved for its citizens. Comprehensive Planning in the County: An Historical Perspective Metropolitan Dade County's first Comprehensive Development Master Plan was adopted by the Board in 1965. This initial version of the CDMP was based upon the unrealistic projection that the County would have two and one half million residents at the planning horizon. To accommodate this projected population, it provided for a spread pattern of low density residential growth, served by numerous expressways. Substantial changes to the CDMP were made in 1975 based upon a lower, more realistic population projection and a consideration of environmental and infrastructure constraints. The result was a plan that provided for a more compact form of urban development concentrated around nodes of activity in the eastern portions of the County. The 1975 version of the CDMP introduced the concept of an urban development boundary. The urban development boundary (UDB) was, and remains to this date, an important part of the plan's urban containment strategy. As its name suggests, the UDB is a line drawn on the plan's future land use map (FLUM) that indicates where urban development will be permitted to reach by the end of the planning period. Since 1975, the CDMP has been amended on various occasions. On eight of these occasions, including most recently in 1990, the amendments have included an expansion of the area inside the UDB. As a result of these amendments, the area inside the UDB has increased by more than 32,000 acres. Notwithstanding the various amendments that have been made to the CDMP, its overall approach, focus and direction have remained essentially the same since 1975. Since 1975, the CDMP's policies have "encourage[d] in-filling, redevelopment, and contiguous development in order to lessen urban sprawl and the associated transportation and energy costs." For years, the CDMP has required the coordination of development with services, the protection of agriculture as a viable economic use of land, the encouragement of a broad spectrum of housing allowing for choice of location, the protection of communities from encroachment by incompatible uses, and a wide variety of other goals, objectives and policies which remain the foundation of the CDMP. The 1988 CDMP In December 1988, the Board of County Commissioners adopted Ordinance No. 88-110 entitled "The Master Plan Amendatory Ordinance" (Amendatory Ordinance). The Amendatory Ordinance revised and reformatted the CDMP in an effort to comply with changes made to the state's growth management laws in 1985. The CDMP's primary planning horizon was extended by the Amendatory Ordinance to the year 2000. Like the current version, the version of the CDMP adopted in 1988 (1988 CDMP) had an statement of legislative intent and the following eleven separate elements, containing goals, objectives and policies and other textual material, as well as maps depicting future conditions, including a future land use map: land use; traffic circulation; mass transit; port and aviation; housing; conservation; water, sewer and solid waste; recreation and open space; coastal management; intergovernmental coordination; and capital improvements. Prior to the adoption of the Amendatory Ordinance, the County's Planning Department prepared a "support component," containing background data and analyses, for each of the foregoing elements. These "support components" were used in the formulation of the 1988 CDMP and they were transmitted to the Department of Community Affairs for the Department's consideration during the compliance review process. The 1988 CDMP: Land Use Element "Support Component" The "support component" for the 1988 CDMP land use element (LUSC) was a 232-page document that analyzed existing and future land uses in Dade County, including the amount of land that would be needed and available to accommodate anticipated growth, the County's projected population, the environmental characteristics of the County's undeveloped land, the availability of urban services in the County, and those areas in need of redevelopment. According to the LUSC, as of 1985, of the County's 1,413,629 acres, 86,111.5 acres (6.09%) were devoted to residential uses, 9,389.1 acres (.66%) were devoted to commercial uses, 770.3 acres (.05%) were devoted to hotels, motels and other transient uses, 15,128.9 acres (1.07%) were devoted to industrial uses, 8,967.6 acres (.63%) were devoted to institutional uses, 660,620.7 acres (46.73%) were devoted to parks and recreational open space, 5/ 69,091.3 acres (4.89%) were devoted to transportation, communications and utilities, 93,187.6 acres (6.59%) were devoted to agriculture, 18,268.9 acres (1.29%) were inland waters, 162,640.0 acres (11.51%) were coastal waters, and 289,453.2 acres (20.48%) were undeveloped or vacant. Of this undeveloped or vacant land, 149,823.5 acres (10.55%) were environmentally sensitive. The LUSC examined the pattern of growth in Dade County over the years and reported that, in the 1970's and 1980's, growth occurred primarily in the unincorporated area on the western fringe of the urbanized portion of the County. According the LUSC, this pattern of growth is anticipated to "persist throughout the remainder of this century and beyond." This projection was accompanied by the following explanation: Urban development opportunities are limited on the coastal ridge and on the barrier islands because there is little remaining developable land. It is on the western fringes that land is available. In Dade County these western growth areas extend from the Broward line to the farm lands and open areas of South Dade. With respect to what the future holds for the "urban interior," the following was stated: In the County's urban interior, its central city areas, growth will be modest or nonexis- tent. In most of these areas there is little remaining developable land and projected de- clines in average household size will offset whatever new development occurs. The Downtown area . . . is projected to show some modest gains in the 1990s and beyond, as downtown development efforts succeed in attracting more residents to the County's heart. The LUSC also contained an analysis performed by the Planning Department of the supply of vacant land available for development and the demand that would exist for such land on a countywide and sub-area basis during the planning period. 6/ In determining the supply of land available for residential development, the Planning Department considered the development potential of only vacant and agricultural land inside the UDB, as it existed prior to the adoption of the 1988 CDMP (pre-1988 UDB). Neither redevelopment opportunities, nor the residential capacity of land outside the pre-UDB, were taken into consideration. For each tract of vacant and agricultural land inside the pre- 1988 UDB, the Planning Department ascertained the number of units that would be able to be built, employing a methodology that was described as follows in the LUSC: This determination is based on the current [pre-1988] CDMP Land Use Plan density classi- fication, with numerous exceptions: In areas where no neighborhood or municipal plan has been adopted since the CDMP map classification was established for the parcel, existing zoning is used if greater than agricultural use (AU) or general use (GU). Where the existing zoning is used and land is zoned and platted for single family use, the development capacity of this land is determined by counting the vacant platted lots. In addi- tion, whenever the density of zoned land is further limited by covenants or approved site plans, those conditions are reflected. Where land is unplatted and zoned for estate den- sity residential, but is designated on the CDMP in a higher residential density category and is substantially surrounded by land that is zoned or designated for higher residential density, the land is assigned the density of the surrounding development. Similarly, small parcels zoned AU or GU are assigned a zoning classification comparable to surrounding de- velopment. AU and GU parcels 10 acres or larger are assigned the Plan density appli- cable to the area. In places where neighbor- hood or municipal plans have been adopted or completed since the CDMP classification was established for the parcel and the neighborhood or municipal plan shows a higher use or den- sity, the neighborhood or municipal plan density is used in estimating the development capacity. In instances where the existing zoning permits greater development than the neighborhood or municipal plan proposes, the zoned density is utilized. The gross supply for each area is discounted by a factor of 6 percent to reflect the finding that 6 percent of land in fully developed areas is typically vacant at any given time. The methodology employed by the Planning Department to determine the supply of land available in the County to accommodate growth is professionally accepted. To determine the demand that would exist for residential land during the planning period, the Planning Department first estimated the 1985 countywide population and then projected what the countywide population would be in the years 2000 and 2010. In so doing, it utilized a component methodology, which examined the three components of population change --births, deaths and migration. This methodology is professionally accepted. The Planning Department also made population estimates and projections for each of the minor statistical areas (MSAs) in the County. In making these estimates and projections, it used an extrapolation methodology that is professionally accepted. 7/ Pursuant to this methodology, a portion of the countywide projected population was allocated to each MSA based upon such factors as long- term subarea growth trends, estimates of current subarea population and existing subarea housing units, and subarea development capacity. The Planning Department estimated that the 1985 countywide population was 1,771,000 and it projected that the countywide population would be 2,102,000 by the year 2000 and 2,331,000 by the year 2010. Its population estimates and projections for MSA 6.1 and MSA 6.2, which collectively comprise an area of the County on the western urban fringe known as West Kendall, and MSA 7.2, which is part of the South Dade area of the County, were as follows: 1985- MSA 6.1: 76,961; MSA 6.2: 36,820; MSA 7.2: 32,791; year 2000- MSA 6.1: 135,932; MSA 6.2: 94,628; MSA 7.2: 44,127; year 2010- MSA 6.1: 162,611; MSA 6.2: 124,414; MSA 7.2: 52,518. It was noted in the LUSC that the West Kendall area was the "fastest growing part of Dade County in the 1970's and early 1980's" and that this area was "projected to account for about 38% of the County's growth" from 1985 to 1990. MSA 7.2 was described in the LUSC as among the "rapidly developing areas" of the County. The countywide and MSA population estimates and projections made by the Planning Department not only appeared in the LUSC, but they were adopted by the Board of County Commissioners and included in the future land use element of the 1988 CDMP. After making these population estimates and projections, the Planning Department sought to ascertain the future demand for new housing in the County. As it explained in the LUSC: This projection is a function of the projected population increase. The methodology assumes that the mix of housing units in that area will remain as it is currently and that house- hold sizes will decline slowly. Residential unit requirements are derived from the pro- jected increase in households with a 5 percent allowance for vacancy of dwelling units. The Planning Department projected that countywide demand would be 9,150 total units annually until 1990, 10,731 total units annually between 1990 and 1995, 10,983 total units annually between 1995 and the year 2000, 11,449 total units annually between the year 2000 and the year 2005 and 11,734 total units annually between the year 2005 and the year 2010. For MSA 6.2 and 7.2, the Planning Department's demand projections were as follows: MSA 6.2- 1,498 total units annually until 1990, 1,739 total units annually between 1990 and 1995, 1,630 total units annually between 1995 and the year 2000, 1,453 total units annually between the year 2000 and the year 2005, and 1,288 total units annually between the year 2005 and the year 2010; MSA 7.2- 269 total units annually until 1990, 309 total units annually between 1990 and 1995, 332 total units annually between 1995 and the year 2000, 360 total units annually between the year 2000 and the year 2005, and 373 total units annually between the year 2005 and the year 2010. Having projected future housing demand, the Planning Department then compared the projected demand to the supply of available residential land and concluded that, assuming no additional residential capacity was added, there was a sufficient aggregate supply of single-family and multifamily housing units inside the pre-1988 UDB to accommodate projected growth until the year 2008. 8/ With respect to MSA 6.2 and MSA 7.2, the Planning Department concluded that the former had sufficient residential capacity to last until the year 2001 and that the latter's supply of residential land would be depleted a year earlier. Notwithstanding its conclusion that there was a sufficient supply of residential land inside the pre-1988 UDB to last until the year 2008, the Planning Department recommended that the 1988 version of the CDMP provide even more residential capacity within the UDB. 9/ It explained its position on the matter as follows in the LUSC: [The urban development boundary] contains sufficient capacities to sustain single family development until 2004 and multi-family development until 2014. However, it is recognized that decisions regarding the development and purchase of residences involve complexities that trans- cend the single consideration of the presence of vacant zoned land. Market conditions, neighborhood pressure, transportation or service deficiencies, and investment deci- sions can impede development of vacant parcels. 10/ The proposed land use plan for 2000 and 2010 includes substantially more additional land than indicated above to insure that no short- ages will occur. . . . [T]he proposed LUP map for 2000 and 2010 in- cludes capacities for an additional 23,590 single family-type dwelling units in the area located between the 1990 urban development boundary of the comprehensive plan LUP map which is currently in effect, and the pro- posed year 2000 UDB of the proposed plan map. The Planning Department also inventoried the supply of land available for industrial and commercial development in the County. As reported in the LUSC, it determined that, as of 1985, the County had almost a 50-year supply of industrial land and a 16.6-year supply of commercial land. It further determined, and reported in the LUSC, that, as of 1985, MSA 6.2 had a 5.1-year supply of commercial land and a 92.5-year supply of industrial land and that MSA 7.2 had a 10.1-year supply of commercial land and a 48.7-year supply of industrial land. The 1988 CDMP: Compliance Review and Stipulated Settlement Agreement The 1988 CDMP was submitted to the Department of Community Affairs for its review. On January 30, 1989, the Department issued its statement of intent to find the 1988 CDMP not "in compliance." The Department's objection to the plan concerned the low level of service standards the plan established for certain roadways. The Department subsequently, by petition, referred the matter to the Division of Administrative Hearings. Thereafter, the Department and County entered into a stipulated settlement agreement. Pursuant to the agreement, the County was to make certain changes to the 1988 CDMP to satisfy the concerns expressed by the Department in its statement of intent. The changes involved the 1988 CDMP's capital improvements element and its traffic circulation element. The County was to amend the capital improvements element to incorporate the primary components of the County's existing concurrency management system. The traffic circulation element was to be amended to establish three geographical zones or "tiers." One of the zones, the area inside the UDB east of the Palmetto Expressway (N.W. 77th Avenue), was to be denominated the "Urban Infill Area." 11/ The level of service standards for roadways in the Urban Infill Area were to be lower than those for roadways in the other two zones. Although these level of service standards for roadways in the Urban Infill Area were extremely low, and may have been unacceptable under other circumstances, it was felt that they were necessary, at least on a temporary basis, to promote infill development and encourage the use of mass transit, including the County's rapid rail system, which is underutilized. The agreement provided that if the County made these changes, the Department would find the 1988 CDMP, as amended in accordance with the agreement, "in compliance" and would recommend to the Administration Commission that the compliance proceeding that had been initiated by the Department be dismissed without the imposition of any sanctions. The County made the changes described the settlement agreement by adopting Ordinance No. 90-37. On June 14, 1990, the Department published its notice of intent to find the 1988 CDMP, as amended by Ordinance No. 90-37, "in compliance." This finding was made notwithstanding that the LUSC indicated that there was enough land inside the pre-1988 UDB to accommodate residential development well beyond the year 2000 and there had been, as a result of the Amendatory Ordinance's westward extension of the UDB and its redesignation of certain lands inside the realigned UDB, an addition to the existing supply of land available for residential development. The 1989-1990 CDMP Amendment Application Cycle A total of 71 applications to amend the CDMP were filed during the 1989-1990 CDMP amendment application cycle (Amendment Cycle). Twenty-seven of these applications were filed by private citizens as authorized by County ordinance. The remaining applications were filed by the Planning Department. Of the 27 privately filed applications, 25 requested changes to the FLUM and two requested changes to the text of the CDMP's land use element. The Planning Director filed a like number of applications to amend the FLUM. Application 39 Among the privately filed applications was Application 39, which was submitted by John H. Wellenhofer. The subject of Application 39 was a 25-acre parcel of land owned by Wellenhofer (Wellenhofer's property). Wellenhofer's property is in Study Area G and MSA 6.2. It is bounded on the north by Southwest 116th Street, on the south by Southwest 118th Street, on the east by Southwest 142nd Avenue and on the west by Southwest 144th Avenue. The property was located near, but inside, the UDB as established by the 1988 CDMP (1988 UDB). Through Application 39, Wellenhofer requested that the land use designation of his property on the FLUM be changed from "industrial and office" to "low density residential" (up to six dwelling units per gross acre). Application 39 and the Tamiami Airport The southern boundary of Wellenhofer's property lies two blocks, or approximately 660 feet, to the north of Tamiami Airport. The Tamiami Airport, which was opened in 1967, serves as a general aviation reliever for Miami International Airport. Tamiami is 1,380 acres in size and is the busiest general aviation airport in the County. The aircraft that use Tamiami are light aircraft, principally single and twin propeller driven airplanes. Tamiami does not, and in any event is not equipped to, handle commercial aircraft. Tamiami has three runways: (1) the north runway (9L-27R), an east- west runway; (2) the south runway (9R-27L), a parallel east-west runway; and the diagonal runway (13-31), a northwest-southeast runway. The north runway, which is the runway closest to Wellenhofer's property, lacks facilities to permit navigation by instrument for flights at night or in inclement weather. The flight pattern for the north runway is an oval shape. Wellenhofer's property is not under any portion of this flight pattern, nor is it under the flight patterns for the other two runways. It lies in the center of the oval created by the flight pattern for the north runway. It should be noted, however, that there are instances where aircraft, for one reason or another, deviate from these flight patterns. Residential communities in the vicinity of Tamiami already exist. A recent proposal to lengthen the south runway was opposed by a large number of the residents of these communities. In the face of such opposition, no action was taken on the proposal. Because of the noise generated by airport operations, residential uses in the area surrounding an airport may be incompatible with those operations. 12/ The CDMP recognizes that there is the potential for such land use incompatibility. It mandates that the federal government's 65/75 LDN contour standard contained in 14 C.F.R., Part 150, be used to determine if a particular residential use in the vicinity of an airport would be incompatible with the operations at that airport. The noise contour at 65 LDN for the north runway at Tamiami does not leave the airport property and barely leaves the runway itself. That is not to say, however, that one standing on Wellenhofer's property cannot hear the sound of aircraft using the airport. Wellenhofer's property is separated from Tamiami by land that is designated on the FLUM for "industrial and office" use. An identical 660 foot, "industrial and office" buffer separates the airport from the residential lands that lie to the south of the western end of the airport. The area immediately to the north, to the south and to the east of Tamiami is denominated an "employment center" in the CDMP. Accordingly, a substantial amount of land in this area, particularly to the east of the airport, has been designated on the FLUM for "industrial and office" use. Land immediately to the west of the site of current airport operations at Tamiami is designated on the FLUM for "transportation-terminals" use. Immediately west of this land is a large expanse of land, outside the UDB, which is designated on the FLUM for "agriculture" use. The CDMP's port and aviation facilities element indicates that "future aviation facility improvements are proposed to be made on or adjacent to the sites of existing airports" in the County and that the "westward 1,900 foot extension of the southern runway at Tamiami Airport" is one such proposed improvement that will be the subject of future consideration. Application 40 Another application filed by a private applicant during the Amendment Cycle was Application 40. It was submitted by the Suchmans. The subject of Application 40 was 320 acres of land (Application 40 property) located in Study Area G and MSA 6.2 and bounded on the north by Southwest 136th Street, on the south by Southwest 152nd Street, on the east by Southwest 157th Avenue and the Black Creek Canal, and on the west by Southwest 162nd Avenue. This land was located outside, but contiguous to on the north and east, the 1988 UDB. Immediately to the north of the Application 40 property is land that is shown on the FLUM as part of the western end of the Tamiami Airport. The CSX railroad tracks run parallel to the southern perimeter of the airport and they bisect the Application 40 property. The land immediately to the east of the Application 40 property which is north of the railroad tracks is designated on the FLUM for "industrial and office" use. The land immediately to the east of the Application 40 property which is south of the railroad tracks is designated on the FLUM for "low density residential communities" use. The land immediately to the south and the west of the Application 40 property is designated on the FLUM for "agriculture" use. At the time of the filing of Application 40, the area immediately surrounding the Application 40 property was undeveloped and in agricultural use. By the time of the formal hearing in the instant case, however, residential development was underway on a portion of the land immediately to the east of the Application 40 property which is south of the railroad tracks. Further to the east is a large scale residential development known as "Country Walk." The Suchmans own 190 acres of the Application 40 property. All but 30 acres of the land they own is on the western side of the property. The Suchmans first acquired an interest in the property in 1973 or 1974. They are in the real estate business and they purchased the property for investment purposes. While the Suchmans are not involved in the agricultural business, over the years they have leased their land to tenants who have used it for agricultural purposes. Since about 1987, it has become increasingly difficult, albeit not impossible, for the Suchmans to find such tenants. At least up until the time of the formal hearing in the instant case, their property was being actively farmed. The Suchmans, through Application 40, originally sought to have the land use designation of the Application 40 property north of the railroad tracks changed from "agriculture" to "industrial and office" and to have the land use designation of the remaining 280 acres of the property changed from "agriculture" to "low density residential." 13/ Subsequently, at the final adoption hearing, they amended their application. The Suchmans' amended application sought redesignation only of that land within the boundaries of the Application 40 property that the Suchmans owned: the western 20 acres of the Application 40 property north of the railroad tracks (from "agriculture" to "industrial and office" use); and 170 acres of the remaining land (from "agriculture" to "low density residential"). Under the amended application, the 130 acres of the Application 40 property not owned by the Suchmans was to remain designated for "agriculture" use. 14/ In addition to seeking the redesignation of their land, the Suchmans' application, in both its original and amended form, requested that the 1988 UDB be extended to encompass all 320 acres of the Application 40 property. Application 47 Application 47 was also filed by a private applicant. It was submitted by Alajuela N.V. The subject of Application 47 was an 160-acre tract of land (Application 47 property) located in Study Area I and MSA 7.2 and bounded by Southwest 264th Street on the north, Southwest 272nd Street on the south, Southwest 157th Avenue on the east and Southwest 162nd Avenue on the west. This land was located outside, but contiguous to on the south and east, the 1988 UDB. Immediately to the south and to the east of the Application 47 property is land designated on the FLUM for "estate density residential communities" use (up to 2.5 dwelling units per gross acre). The land immediately to the north and to the west of the Application 47 property is designated "agriculture" on the FLUM. Through its application, Alajuela N.V. requested that the land use designation on the FLUM of the Application 47 property be changed from "agriculture" to "estate density residential" 15/ and that the 1988 UDB be extended to encompass this property. Alajuela N.V. owns the entire western half of the Application 47 property. The eastern 80 acres is divided into a number of parcels, the majority of which are under five acres, with different owners. The eastern half of the Application 47 property contains 15 acres of Dade County pine forest. The Application 47 property lies approximately three-quarters of a mile both to the west and north of the U.S. 1 corridor in South Dade, which, according to the LUSC, "[s]ince 1970 . . . [has] experienced particularly heavy development and intensification of land use." This puts it on the southern fringe of an area of South Dade known as the Redlands. While the boundaries of the Redlands are not precise, it is generally understood to range from Southwest 184th Street on the north to the urbanizing areas of the City of Homestead on the south and from U.S. 1 on the east to a meandering line on the west where predominantly mixed agricultural and residential uses end and large-scale agricultural operations generally uninterrupted by residential development begin. While there is significant agricultural activity in the Redlands, primarily involving grove and nursery operations, 16/ an increasing residential trend has been established, particularly on the urbanizing fringes of the area and on parcels less than five acres in size that, because of the grandfathering provisions of the CDMP, are not subject to the restriction imposed by the CDMP that lands designated for "agriculture" use not be used for residential development in excess of one unit per five acres. Residential developments lying south of the Application 47 property constitute the urbanizing area of the City of Homestead. Homestead is a CDMP- designated activity center and, according to the LUSC, it was the fastest growing municipality in Dade County during the period from 1970 to 1987. Homestead's northern jurisdictional limits lie approximately two miles south of the Application 47 property. A substantial portion of the land between the Application 47 property and Homestead is presently undeveloped. The Application 47 property is approximately four and one half miles, by road, from the Homestead Air Force Base, a CDMP-designated employment center. Also in proximity to the Application 47 property are the Homestead/Florida City Enterprise Zone; the Villages of Homestead, which is a 7,000 acre development of regional impact; and commercial and industrial development along the U.S. 1 corridor in South Dade. 17/ The land immediately surrounding the Application 47 property is currently being used primarily for agricultural purposes, however, there is also residential development, as well as vacant land in the area. The western half of the Application 47 property is presently in active agricultural use. The eastern half of the Application 47 property is also the site of agricultural activity. Unlike the western half of the property, however, the eastern half is not used exclusively for agricultural purposes. Residences are located in this half of the property. Other Applications of Note Application 58, which was filed by the Planning Department, sought an amendment to the text of the land use element which would allow new agricultural uses in utility easements and right-of-way areas inside the UDB. Application 62 was another application filed by the Planning Department. Through Application 62, the Planning Department sought to have the Board of County Commissioners update and revise the countywide and MSA population estimates and the MSA population projections for the years 2000 and 2010 that had been adopted as part of the CDMP's land use element in 1988. In Application 62, the Planning Department recommended that the 1985 countywide and MSA population estimates found in the CDMP be replaced by 1989 estimates, including the following: countywide- 1,894,999; MSA 6.1- 92,715; MSA 6.2- 50,841; and MSA 7.2- 33,511. With respect to the population projections adopted in 1988, the Planning Department requested that they be modified to reflect a different distribution of the projected countywide population. The proposed modifications, as they pertained to MSA 6.1, MSA 6.2 and MSA 7.2, were as follows: year 2000- MSA 6.1: 137,612; MSA 6.2: 89,404; MSA 7.2: 42,012; year 2010- MSA 6.1: 175,504; MSA 6.2: 124,380; MSA 7.2: 53,823. In making these modified projections, the Planning Department utilized the same professionally accepted methodology it had used to make the projections that had been adopted in 1988. The Planning Department did not propose in Application 62 that any material change be made to the year 2000 or the year 2010 countywide population projections. A third application filed by the Planning Department was Application This application sought to have the Board of County Commissioners amend the text of the land use element to provide for the establishment of Traditional Neighborhood Developments (TNDs) by the adoption of land use regulations. Under the proposed amendment, TNDs, designed to provide a mix of employment opportunities, to offer a full range of housing types, and to discourage internal automobile use, among other objectives, would be permitted in areas designated for residential use on the FLUM. Planning Department's Preliminary Recommendations Report On August 25, 1989, the Planning Department prepared, for the benefit of the Board of County Commissioners, and published a two-volume report (PR Report) containing its initial recommendations on the 71 applications filed during the Amendment Cycle, as well as the background information and analyses upon which those recommendations were based. In its PR Report, the Planning Department analyzed, among other things, the amount of land that was needed and available to accommodate anticipated growth. In conducting its analysis, the Planning Department employed essentially the same, professionally accepted methodology, previously described in this Recommended Order, that it had used in 1988. The population estimates and projections upon which it relied were the updated and revised estimates and projections that were the subject of Application 62. The Planning Department estimated that in 1989 the County's residential capacity was 247,438 total dwelling units (134,333 single-family units and 113,105 multifamily units). Countywide demand was projected to be 9,157 total dwelling units a year from 1989 to 1995, 10,920 total dwelling units a year from 1995 to the year 2000, 11,440 total dwelling units a year from the year 2000 to the year 2005, and 11,601 total dwelling units a year from the year 2005 to the year 2010. Under this scenario, in the year 2010, there would remain a residential capacity of 22,689 total dwelling units. According to the Planning Department's analysis, this remaining countywide residential capacity would be depleted in the year 2012 (depletion year). The Planning Department forecast an earlier depletion year, 2009, for single-family units. In addition to analyzing countywide residential capacity, the Planning Department conducted an analysis of the amount of land that was available in the County for commercial and industrial development. The Planning Department's analysis revealed that the County had sufficient commercial capacity to last until the year 2008 and that it had sufficient industrial capacity to last until the year 2041. The Planning Department analyzed residential, commercial and industrial capacity, not only on a countywide basis, but on a subarea basis as well. This subarea analysis yielded the following forecast as to Study Areas G and I and MSAs 6.2 and 7.2: Study Area G- depletion year for residential land: year 2005 (all dwelling units), year 2006 (single-family units), and year 2005 (multifamily units); depletion year for commercial land: year 2003; and depletion year for industrial land: year 2076. Study Area I- depletion year for residential land: year 2019 (all dwelling units), year 2016 (single-family units), and year 2030 (multifamily units); depletion year for commercial land: year 2015; and depletion year for industrial land: year 2091. MSA 6.2- depletion year for residential land: year 2006 (all dwelling units), year 2002 (single-family units), and year 2025 (multifamily units); 18/ depletion year for commercial land: 1995; and depletion year for industrial land: year 2075. MSA 7.2- depletion year for commercial land: year 2009; and depletion year for industrial land: year 2078. In its PR Report, the Planning Department also surveyed the environmental, physical and archaeological/historic conditions in each study area of the County, with particular emphasis on the lands that were the subject of the various applications to amend the FLUM (hereinafter referred to collectively as the "application properties"). The PR Report noted that Study Area G, "a large area (approx. 81 sq. mi.) located along the westerly fringe of southwestern Dade County," was characterized by the following environmental, physical and archaeological/historical conditions: Study Area G encompasses the western portions of the Snapper Creek (C-2), C-100 and Black Creek (C-1) canal drainage basins. Natural ground elevations range from five to six feet msl in the northwestern portion of the area to ten to fifteen feet in the part of the Study area generally south of SW 120 Street. Similarly, there is a gradient in the soil conditions from the NW to the SE. In the NW quarter of the area, generally west of 144 Avenue and north of Kendall Drive, the limerock substrate is covered with seasonally flooded Everglades peats and mucks. The southern and eastern three quarters of the study area is generally characterized by well drained rocklands interspersed with poorly drained marls in the former transverse glades. Where organic soils exist, they must be re- moved prior to filling to meet County flood criteria. Therefore as much as four feet of fill may be required to meet the County cri- teria in the northwestern part of this area. The average groundwater table elevations range from above five feet in the northwest to four feet in the southeast. Therefore, the area of Bird Drive and much of the area north of Kendall Drive west of SW 137 Avenue has tradi- tionally experienced considerable flooding and drainage problems. * * * Approximately 70 percent (5,522 acres) of the Bird Drive Basin is vegetated with native wet- land wet prairie, shrub and tree island habi- tats. However, 3,083 acres are heavily or moderately invaded by the exotic tree, Malaleuca. In 1987 the County initiated a Special Area Management Planning (SAMP) pro- cess for this area to develop a wetlands miti- gation plan and funding proposals that will facilitate development in some portions of the Bird Drive Everglades Basin. The poten- tial presence of a new 140-million gallon per day (mgd) Biscayne Aquifer water wellfield in the western part of the Bird Drive Basin has made the feasibility of on-site wetland miti- gation highly questionable for the Basin area. Therefore, the County is exploring several off-site mitigation options as part of the SAMP. Proposals to develop in this Basin are presently constrained by language in the adopted components of the CDMP which tie de- velopment orders to the conclusion of the SAMP, unless the applicants can demonstrate vested rights. * * * In the portion of the study area south of Kendall Drive, the most significant environ- mental resources are stands of native pinelands. There are several environmentally sensitive pinelands in Study Area G, however, none of the properties included in applications 34-4 contain significant natural, historical o archaeological resources. . . . Table 1G of the PR Report contained the following information regarding the specific environmental, physical and archaeological/historic characteristics of Wellenhofer's property and the Application 40 property: Wellenhofer's Property: Soils- rockdale/rockland; drainage characteristics of soils- good; elevation: eight feet; drainage basin- C-100; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The Application 40 Property: Soils- rockdale, marl; depth of organic soils (marl)- one foot; drainage characteristics: good; elevation: eight feet; drainage basin: Black Creek Canal; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The environmental, physical and archaeological/historic characteristics of Study Area I, "a large (approx. 164 sq. mi.) region of south Dade County," were described as follows in the PR Report: Study Area I includes portions of CDMP Envi- ronmental Protection Subarea A, Biscayne National Park; Subarea D, the C-111 Wetlands; Subarea E; the Southeast wetlands; and Subarea F, Coastal Wetlands and Hammocks. These areas have been so designated because they contain important, relatively unstressed high-quality wetlands, which provide important water quality and wildlife values. Study Area I also includes a large part of CDMP Open Land Subarea 5. In most of the area east of Krome Avenue and west of U.S. 1, natural ground elevations range from ten to fifteen feet msl on the ridge and from five to ten feet in the former sloughs. The area east of the Turnpike and south of Florida City is less than five feet mean sea level. The highest average groundwater levels are at or above the ground surface throughout most of the area east of the Turnpike Extension and south of Florida City. Saltwater intrusion in the Aquifer extends two to five miles inland in this low lying area. In the area west of the Turnpike and east of Levees-31N and 31W, the soils are rocklands except in the former sloughs where marls pre- dominate. East of the Turnpike and south of Florida City, marls are the dominant soil type except along the coast where peats occur. The Black Creek (C-1), C-102, Mowry (C-103), North Canal, Florida City and C-111 canal sys- tems drain much of the northern and eastern portion of this study area. The area east of the Turnpike has recurring flooding and drainage problems due to its low elevation and flat gradient. The western portions of the C-102, C-103 and much of the C-111 drainage basins have limited flood protection. There is no flood protection in the area south of the Florida City Canal east of US 1 or in most of the area west of US 1 and south of Ingraham Highway. . . . * * * This study area also includes most of the environmentally sensitive natural forest com- munities that remain in Dade County. Appli- cation 47 contains a 15-acre pineland which presently receives maximum protection because it is outside the UDB and zoned AU. At the most, 20 percent of the pineland could be re- moved under the provisions of Chapter 24-60 of the Code of Metropolitan Dade County. . . . Table 1I of the PR Report contained the following additional information regarding the specific environmental, physical and archaeological/historic characteristics of the Application 47 property: Soils- rockland; drainage characteristics of soils- good; elevation: eleven to twelve feet; drainage basin- C-103; wetlands permits required- none; native wetland communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The PR Report also provided general information regarding existing land uses within each study area and more detailed information regarding existing land uses within and adjacent to each application property. The following was said with respect to existing land use patterns within Study Areas G and I: Study Area G- About half of this study area is suburban in character while the other half is primarily agriculture or undeveloped. The study area also contains a special agricul- tural area known as "horse country" for eques- trian related activities. The urbanizing portion is primarily residential with support- ing commercial and industrial activities. Residential areas include a range of housing from detached, single dwelling units to attached, multiple dwelling units at medium density. The area also contains two major recreation facilities-- Metrozoo and a county park. The major concentration of commercial activities has occurred along major thoroughfares such as North Kendall Drive. Some industries and offices are clustered in the vicinity of Tamiami Airport, a major general aviation facility located in the study area. Study Area I- This study area includes var- ious types of agricultural activities and rural development as well as suburban develop- ment largely oriented to US 1. The suburban development is primarily residential with supporting commercial uses. Although most of the housing is detached, single dwelling units, residential areas also include attached, multiple dwelling units at medium density. There are also several districts for industries and offices, some of which are oriented to expressway and railway systems. More than half of this study area is used for agriculture or is undeveloped. Much of the area is floodplain and the eastern fringe is subject to coastal flooding. Some of these areas are used for parks, preserves and water management areas. The area also contains several wellfields for public water supply, which are located inland from the coast and a major military installation-- Homestead Air Force Base. The PR Report stated the following with respect to the existing land uses within and adjacent to Wellenhofer's property, the Application 40 property and the Application 47 property: Wellenhofer's Property: The area, which con- tains 25 acres, is being used for agricultural purposes. Land located in the vicinity to the south and west is also being used for agriculture while zoned IU-C. The land on the north side is being developed for residential purposes. Boys Town home is located immediately to the west. The site is located one quarter mile north of Tamiami Airport. . . . The Application 40 Property: The area, which contains 320 acres, is being used for agricul- tural purposes. . . . Land in the vicinity on all four sides is also being used for agriculture. Tamiami Airport is located to the northeast of this site. The Application 47 Property: Most of the land in this area is being used for agriculture. The remainder is being used for rural residences or is vacant. The vacant parcels are zoned for agriculture (AU). Land in the vicinity on all sides has the same character. It is primarily agriculture with scattered rural residences or vacant parcels. These vacant parcels are also zoned for agri- culture (AU). The PR Report examined not only existing land use patterns, but future development patterns as well. The future development pattern set forth in the 1988 CDMP for Study Areas G and I were described in the PR Report as follows: Study Area G- The future land use pattern adopted for this area provides primarily for continued residential uses at low, and low-medium densities, with industrial and office development bordering the Tamiami airport. Nodes of commercial uses are pro- vided for at certain major intersections cen- trally located to serve the resident popula- tion. The western portions of the Study Area are slated for continued agricultural produc- tion, while the extreme northwest corner of the Area is designated as Open Land to pro- tect the West Wellfield. Study Area I- The future development pattern established for this area provides for mixed residential infilling (primarily estate, low density and low-medium-density, with some medium-high density located along SW 200 Street east of US 1). Commercial infilling is provided for along both sides of US 1 and along SW 312 Street. Major industrial areas are established south of SW 312 Street and west of 142 Avenue, west of SW 177 Avenue in the Homestead-Florida City area, north and south of 248 Street west of US 1 and south of SW 184 Street between US 1 and the HEFT [Homestead Extension to the Florida Turnpike]. The areas outside of, but contiguous to, the year 2000 Urban Development Boundary (UDB) are, for the most part, designated Agriculture, with land to the south and east designated as Open Land graduating to Environmental Protec- tion designations further south. . . . The PR Report also contained an evaluation of the current and future condition of public services in each study area, including an analysis, where possible, of each application's impact on these services. The public services addressed were roadways, transit, schools, parks, water, sewer, solid waste, and fire and rescue. The projected impacts of Applications 39, 40 (in its original form) and 47 on roadways were described as follows in the PR Report: Application 39: [Application 39 will result] in reduced peak hour trips affecting the year 2010 network in this [study] area. None of the roads within the area of this application were projected to operate worse than LOS D in the year 2010. Application 40: Due to its proximity to SW 177 Avenue, the combined 1422 peak hour trips generated by this amendment primarily impact SW 177 Avenue, which is already projected to operate at LOS F. The long term adopted standard for this road is LOS C. Even without this application the road does not meet this adopted standard. Application 47: Application 47 . . . if de- veloped would generate approximately 171 residential based peak hour trips in 2010. . . . Generally, this application would have negligible impacts on the LOS traffic conditions in 2010. The projected impacts of Applications 39, 40 (in its original form) and 47 on transit were described as follows in the PR Report: Applications 39 and 40: In general, no signi- ficant amount of transit trips would be generated by the amendment applications in this Study Area [G], even though a number of the applications (i.e. . . . 39, 40, ) are located in areas projected to have service improvements by 2010. Therefore, no additional service improvements are warranted beyond those that will be required to serve the area in general for 2010. Application 47: [N]o significant amount of transit trips would be generated by Applica- tion . . . 47. The projected impacts of Applications 39, 40 (in its original form) and 47 on schools were described as follows in the PR Report: Applications 39 and 40: It is estimated that the applications [in Study Area G] would in- crease the student population by [a total of] 2,784 students. . . . Application 40 would generate 874 additional students; . . . The other applications for residential use [including Application 39] would generate less than a hundred new students each. Application 47: If Application 47 were ap- proved, it would generate an additional 239 students at all grade levels. The greatest impact would be felt at the elementary school level, where an additional 129 students would have to be accommodated. Redland Elementary, which is the elementary school that would pro- bably serve the subject Application Area, is operating at a utilization rate of 163 percent. Additional classrooms are planned for construc- tion at Redland Elementary over the next few years, raising this school's number of Exist- ing Satisfactory Student Stations (ESSS) from 523 to 901. In addition, a relief school for Redland Elementary is to be built in this area by mid-1993, providing an additional 885 SSS. The projected impacts of Applications 39, 40 (in its original form) and 47 on parks were described as follows in the PR Report: Applications 39 and 40: Study Area G cur- rently meets the park level of service stan- dard (LOS) and is expected to meet the LOS in the year 2000. . . Despite the rapid popula- tion growth in the area, the LOS has remained above standard in part because of recreational facilities and open space that are provided in the planned residential developments which characterize the Study Area. Approval of those applications requesting new residential uses in Study Area G could result in a lowering of the LOS for parks if new park land is not provided. Application 47: By the year 2000, MSA 7.2 is expected to fall below standard if no addi- tional parks are provided. * * * Application 47 lies within MSA 7.2 which is currently above the LOS standard but is expected to fall below standard if no addi- tional park land is provided. The PR Report indicated that the fire and rescue response times to Wellenhofer's property, the Application 40 property and the Application 47 property were four minutes, 13 minutes, and three to four minutes, respectively, and that roadway accessibility to all three sites was good. With respect to the Application 40 property, the PR Report further noted that it "would be serviced by the planned Richmond Station after its completion in 1992-93," which would reduce the response time to the site to no more than six minutes. Water and sewer service in Study Areas G and I was described as follows in the PR Report: Study Area G: Water and sewer service is provided to Study Area G by WASAD [Metro- politan Dade County Water and Sewer Authority Department]. The area is characterized by large residential developments which have been built over the past decade. Water and sewer service was constructed by area devel- opers in many cases, and most of the developed area is served. . . . . [T]he 'Horse Country' area west of the Turnpike is not connected to either water or sewer. Potable Water Supply Water is supplied to Study Area G by WASAD's Alexander Orr Water Treatment Facility. This facility's current design rating is 178 MGD, and the historical maximum day water demand has been 146 MGD. . . . The Orr facility currently produces water which meets all federal, state and county drinking water standards. WASAD has recently made improve- ments to the Alexander Orr facility and devel- oped a long term expansion program. By 1990, it is expected that the plant will attain a rated capacity of 220 MGD. A major improvement to the distribution system in this Study Area is the completion of the 36/48 inch main which extends along SW 137 Avenue from SW 122 Street to SW 184 Street. In conjunction with other improvements, the system in this area is being connected to the South Miami Heights and the Orr Treatment Plants, providing adequate capacity for the southern portion of Study Area G. Improvements that are scheduled for 1989-90 include the extension of the 36 inch water main along Kendall Drive to SW 157 Avenue, and continued construction of the 96 inch raw water main that will deliver water from the new West Wellfield to the Alexander Orr Treat- ment Plant. Sewer Study Area G is served by the South District Wastewater Treatment and Disposal Facility. This facility has a current design capacity of 75 MGD. Based on a 12-month running average daily flow for this plant was 75 MGD. . . . Expansions to the South District facility are programmed for completion in 1994 to increase the design capacity to 112.5 MGD. Sewage effluent produced by this plant also conforms to federal, state and county effluent standards and is disposed of via deep well injection. Study Area I: Most of Study Area I is in agri- cultural use and relies primarily on private wells and septic tanks. WASAD serves the devel- oped areas in unincorporated Dade County. Florida City provides water service within the city limits and sewer service is provided by WASAD. A portion of the study area is also served by the City of Homestead. Homestead's franchised service area extends a short dis- tance outside the City limits: it is bounded irregularly on the East, on the West by SW 192 Avenue, by the City limits on the South, and on the North by SW 296 Street. Water distri- bution and sewage collection systems are main- tained by the Air Force to serve Homestead Air Force Base. Potable Water Supply The northeast corner of the Study Area is con- nected to WASAD's regional water supply system and is served by the Alexander Orr Treatment Plant. . . . [T]he served area south of SW 248 Street is not yet connected to the regional system. This area is served by the former Rex Utility system, which is now owned by WASAD, and by the City of Homestead. The Rex system has a rated capacity of 16.2 mgd and a maximum water demand of 8.81 mgd. The Homestead plant has a rated capacity of 9.9 mgd and a maximum demand of 7.7 mgd. . . . Water produced by these treatment plants meets federal, state, and county drinking water standards. A major improvement scheduled for this area is a 48 inch main which will run south along SW 127 Avenue from 248 Street to SW 280 Street to connect the existing systems to the Alexander Orr Treatment Plant. Upon completion of this main in 1990 or 1991, the . . . treatment plants of the Rex system will be phased out. . . . Sewer Florida City and the unincorporated portion of Study Area I are served by the South District Wastewater Treatment and Disposal Facility, which has a current design capacity of 75 mgd and an average daily flow of 84.2% of rated capacity. Expansions to the South District facility, programmed for completion in 1994, will increase the design capacity to 112.5 mgd. Sewage effluent treated by this plant conforms to the federal, state and county effluent stan- dards and is disposed of via deep-well injection. . . . The only remaining sewage treatment plant in Dade County is operated by the City of Homestead. The plant is designed to treat 2.25 mgd and its capacity is in the process of being evaluated by the Florida Department of Environmental Regula- tion. The Homestead system currently operates under an agreement to divert a portion of its wastewater to WASAD for treatment and disposal. . . . The following was indicated in the PR Report concerning the water and sewer service available to Wellenhofer's property, the Application 40 property and the Application 47 Property: Wellenhofer's property: distance to nearest water main- 1320 feet; diameter of this main- 12 inches; location of this main- SW 112th Street and SW 142nd Avenue; distance to nearest sewer main- 4000 feet; location of this main- SW 112th Street and SW 137th Avenue. The Application 40 Property: distance to nearest water main- 0 feet; diameter of this main- 24 inches; location of this main; SW 152nd Street and SW 157th Avenue; distance to nearest sewer main- one mile; location of this main- SW 136th Street and SW 147th Avenue. The Application 47 Property: distance to near- est water main- 2640 feet; diameter of this main- 12 inches; location of this main- SW 157th Avenue and 280th Street; distance to nearest sewer main- 3960 feet; location of this main- SW 157th Avenue and SW 284th Street. 19/ The significance of the availability of water and sewer service to a particular application property was described as follows in the PR Report: Although specific requirements under Chapter 24 of the Code of Metropolitan Dade County vary with land use, most new development in Dade County is required to connect to the public water or sewer system, or to both. The timing of new development is heavily depen- dent on the availability of these services. Where water and sewer service does not exist and is not planned, the services may be pro- vided by the developer. When construction is completed, the facilities are donated to the utility. The proximity of an application area to exist- ing or programmed water and sewer lines is an important indicator of whether or not the area is likely to develop within the 2000 time frame of the Urban Development boundary. . . . The following observations were made in the PR report regarding solid waste services in the County: The Metro-Dade Department of Solid Waste Management provides both collection and dis- posal services for Dade County. The Department is responsible for the final dis- posal of solid waste generated anywhere in the County and for residential collection in the urbanized portions of unincorporated Dade County. Residents in sparsely developed areas of the County are responsible for delivering their waste to a proper disposal site. In general, industrial and commercial businesses often use private haulers who can provide customized service that is not available from the County. . . . Countywide, the solid waste disposal system has sufficient capacity to maintain the adopted level of service of 7 pounds per person per day through 1995. The Department's Objections, Recommendations and Comments Report (ORC) The Board of County Commissioners took preliminary action on the applications filed during the Amendment Cycle and transmitted to the Department its proposed amendment to the CDMP. Accompanying the proposed amendment was the PR Report. The Department issued its Objections, Recommendations and Comments Report (ORC) on February 2, 1990. A copy of the ORC, accompanied by a cover letter, was sent to the Mayor of Metropolitan Dade County, the Honorable Stephen P. Clark, that same day. The cover letter advised the Mayor that if he "would like the Department to participate in the public hearing for amendment adoption, such request should be received by the Department, certified mail, at least 14 days prior to the scheduled hearing date." The following were the statements made in the ORC that referenced Applications 39, 40 and 47: FUTURE LAND USE ELEMENT OBJECTIONS * * * Analysis 1. 9J-5.006(2)(b) The analysis of the character of the existing vacant or undeveloped land in order to deter- mine its suitability for use does not support the plan amendments that propose to extend the Urban Development Boundary (UDB) by 845 acres. The analysis demonstrates that the UDB as cur- rently delineated ensures an adequate supply of each land use will be available for the planning timeframe. In addition, the existing analysis identifies this region as environmen- tally sensitive and not suitable for urban uses. Recommendation Revise the plan amendments to retain the UDB as currently delineated in the adopted Metro-Dade Comprehensive Development Master Plan (CDMP) or include analysis that would justify extension of the UDB for urban uses while not causing adverse impacts to the environmentally sensitive lands in the East Everglades Area. 2. 9J-5.006(2)(c)2. The analysis of the amount of land needed to accommodate the projected population, as re- vised in Amendment 62, does not support plan amendments 18, 37, 40, 41 and 47 which propose to extend the UDB by an additional 845 acres. The analysis demonstrates that there is ade- quate amount of land uses designated within the current UDB to accommodate the projected population within the planning timeframe. Therefore, the extension of the UDB into the East Everglades area would encourage urban sprawl. Recommendation Revise the plan amendments to be consistent with the analysis. The plan amendments must justify the proposed need for additional land outside of the current UDB to accommodate the projected population. 3. 9J-5.006(2)(e) The analysis of the proposed development of flood prone areas does not support plan amend- ments 18, 37, 40, 41 and 47 which would extend the UDB by 845 acres. The new growth would be directed into the flood prone areas on the eastern edge of the Everglades. . . . Recommendation Revise the plan amendments to not extend the UDB and to either retain the existing land uses or designate land uses that are compat- ible with the environmentally sensitive nature of . . . the Everglades region. Goals, Objectives and Policies 4. 9J-5.006(3)(b)1. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 1, page I-1, which states that decisions regarding the location of future land use in Dade County will be based on the physical and financial feasibility for providing services as adopted in the CDMP. The analysis demonstrates that the County has not planned on providing services outside the existing UDB; therefore the extension of the UDB at this time would appear to be premature. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 8. 9J-5.006(3)(b)7. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 3, page I-4, which states that the urban growth shall emphasize concentration around centers of activity rather than sprawl. The analysis of the land needed to accommodate the projected population demonstrates that there will be an adequate supply of vacant land within the UDB for the duration of the planning timeframe. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 12. 9J-5.006(3)(c)3. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Policy 1B, page I-1, which states that the County will first provide services for the area within the UDB. The amendments are located outside of the existing UDB and the analysis demonstrates that there is no need to extend the UDB for residential or industrial land uses. Recommendation Retain the UDB as currently delineated. * * * Future Land Use Map(s) 14. 9J-5.006(4)(a) Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are not supported by the data and analysis. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These ex- tensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development Boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and to pro- tect the environmental integrity of the Ever- glades. * * * PORTS, AVIATION AND RELATED FACILITIES A. OBJECTIONS * * * Goals, Objectives and Policies 1. 9J-5.009(3)(c)1. Plan amendments 38 and 39, which would change industrial/office land use to low density resi- dential, are inconsistent with Policy 4C, page IV-4, which supports zoning that would protect existing and proposed aviation flight paths. These amendments would promote the encroachment of residential land uses into the Tamiami Airport area guaranteeing a future conflict of land uses. Recommendation Retain the existing land uses or propose land uses that would be compatible with the existing airport and the surrounding supporting aviation industries. * * * SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT A. OBJECTIONS Goals, Objectives, and Policies 1. 9J-5.011(2)(b)3. Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are inconsistent with Objective 1 and Policy 1A, page VII-1, which state that the area within the UDB shall have first priority for urban services as a measure to discourage urban sprawl. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These extensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and protect the environmental integrity of the Everglades. The ORC also addressed the proposed plan amendment's consistency with the State of Florida Comprehensive Plan (State Plan) and the Regional Plan for South Florida (Regional Plan), which was prepared and adopted by the South Florida Regional Planning Council. The following was alleged with respect to the proposed amendment's consistency with the State Plan: STATE COMPREHENSIVE PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021 The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following sub- sections of s. 187.201, F.S. (1988 Supplement), State Comprehensive Plan policies: Housing (5)(b)3., which requires the supply of safe, affordable and sanitary housing for low and moderate income persons and the elderly, because the proposed amendments would change existing residential uses, that would be feasible for affordable housing, to non-residential uses; and Water Resources (8)(b)4., which requires the protection and use of natural water systems in lieu of struc- tural alternatives and restore modified sys- tems, because the proposed amendments would create land uses which would encroach upon wellfield protection areas; and Coastal and Marine Resources (9)(b)4., which requires the protection of coastal resources, marine resources, and dune systems from the adverse effects of develop- ment, because of the proposed amendment to change definitions which would give residen- tial densities to submerged marine lands; and Natural Systems and Recreational Lands (10)(b)7., which requires the County to pro- tect and restore the ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value, because the proposed amendments would expand the UDB into the East Everglades Area and potentially permit noncompatible land uses within wetland study areas and wellfield pro- tection areas; and (10)(b)8., which requires promotion of res- toration of the Everglades system and of the hydrological and ecological functions of de- graded or substantially disrupted surface waters, because of the proposed amendment which would expand the UDB into the East Everglades Area; and Land Use (16)(b)2., which requires incentives and dis- incentives which encourage a separation of urban and rural land uses, because the pro- posed amendments would expand the UDB into the East Everglades Area which would encourage urban sprawl; and Public Facilities (18)(b)1., which requires incentive for devel- oping land in a way that maximizes the uses of existing public facilities, because the pro- posed amendments would remove residential uses along arterials and reduce the effectiveness of the mass transit system. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and implementing policies, supported by adequate data and analysis, that are consistent with the above-referenced poli- cies of the State Comprehensive Plan. The following was alleged in the ORC concerning the proposed amendment's consistency with the Regional Plan: REGIONAL POLICY PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021(1) The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following subsections of the Regional Plan for South Florida: Policy 57.1.2., which requires giving priority to development in areas within which adequate services are either programmed or available, because of the proposed amendments which would expand the UDB into the East Everglades Area; and Policy 64.2.1, which requires that land use around the airport be strictly controlled to prevent unnecessary social or economic con- flicts and costs, because of the proposed amendments which would place residential uses in close proximity to Tamiami Airport; and Policy 69.1.1., which encourages appropriate activities to ensure the continued viability of agriculture, because the proposed amend- ments which would expand the UDB into the East Everglades Area. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and policies, supported by adequate data and analysis, that are consis- tent with the policies of the Regional Plan for South Florida. Under the heading of "Internal Consistency" in the ORC, the following remarks were made: INTERNAL CONSISTENCY OBJECTIONS 1. 9J-5.005(5)(b) Each map depicting future conditions in the plan (including the future land use map) must reflect goals, objectives and policies in each element, as those goals, objectives and policies exist or are modified to meet the requirements of Chapter 9J-5, F.A.C., Chapter 163, F.S., the State Comprehensive Plan (Chapter 187, F.S.) and the comprehensive regional policy plan, as recommended in this report. Recommendation Ensure that future conditions maps are modi- fied to reflect goals, objectives and policies in each element. COMMENTS See individual elements. Those objections, recommendations and comments made in the ORC that are not recited above specifically referenced applications other than Applications 39, 40 and 47. The Planning Department's Response to the ORC On March 21, 1990, the Planning Department published a written response to the ORC (Response). In its Response, the Planning Department concurred with the position that Applications 39, 40 and 47 should not be approved, but it took issue with certain statements made in the ORC relating to these applications. The Planning Department pointed out that the "East Everglades was the area located west of the L-31 Everglades containment levee and south of the Tamiami Trail," and that "[A]pplications [18, 37, 40, 41 and 47 we]re no closer than two miles [to the east] of the East Everglades" and did not extend to any areas designated "environmental protection" on the FLUM. The Planning Department further noted that the Application 40 property and the Application 47 property were not subject to recurring flooding. With respect to the lone objection in the ORC which specifically mentioned Application 39, the Planning Department observed that it "incorrectly cite[d] Policy 4C [of the Port and Aviation Facilities Element of the CDMP]; it should be Policy 4D." The Planning Department added that, although the Department had not so indicated, Application 39 was "also inconsistent with Objective 8 of the Port and Aviation Element which seeks to maximize compatibility between airports and the surrounding communities." Combined Recommendations of the Planning Department and the PAB On February 27, 1990, and February 28, 1990, respectively, following a joint public hearing held on February 23, 1990, the Planning Department, acting in its capacity as the local planning agency, and the PAB adopted resolutions containing their recommendations to the Board of County Commissioners regarding the final action to be taken on the applications filed during the Amendment Cycle. Thereafter, prior to the final adoption hearing, the Planning Department published a document entitled "Combined Recommendations of the Metropolitan Dade County Planning Department (Local Planning Agency) and the Planning Advisory Board" (CR Report), which set forth these recommendations, and summarized the rationale upon which they were based. Both the Planning Department and PAB recommended that Application 39 be denied. According to the CR Report, these recommendations were based upon the following considerations: The south boundary of this site is located only two blocks from the Kendall-Tamiami Execu- tive Airport. The application area is within the area designated on County comprehensive plans as industrial/commercial since 1965 to insure airport/community compatibility. The continued non-residential designation of this area also conforms to the standard adopted in 1989 by the State Legislature (but vetoed by the Governor because of unrelated funding pro- visions) which provided that "residential construction should not be permitted within an area contiguous to an airport measuring one-half of the length of the longest runway on either side of each runway centerline." The Aviation Department estimates that the housing proposed in the application area would be subject to more than ten times ambient noise levels which would result in many complaints from occupants. For example, virtually all of the 5,200 petitioners concerned about perceived airport noise impacts of the recently rejected runway extension lived further from the airport than would the occupants of housing proposed within the area. Approval of this application would conflict with the need for the County to protect its airport, and with the need to retain opportunity sites for employment activities in west Kendall. The Planning Department recommended that Application 40 be denied. According to the CR Report, this recommendation was based upon the following considerations: This Application is located in the Agri- cultural area west of Black Creek Canal. The Agricultural Land Use Plan adopted by the Board of County Commissioners established that Canal as the Agricultural area boundary in this area of the County, to be amended for urban development only at such time as there is a documented need. The Planning Department believes that the need does not yet exist. 20/ Approval of this Application would be premature. The CDMP currently contains within the year 2000 Urban Development Boundary (UDB), enough land countywide to sustain projected industrial needs well beyond the year 2010, and residential needs to the year 2015. Within this Study Area there is also enough industrial land to accommodate projected residential growth beyond the year 2010 and to accommodate projected residential growth until the year 2005. While current projections indicate that the single family supply west of the Turnpike between Kendall Drive and Eureka Drive does not contain much surplus beyond the year 2000, the CDMP provides alternative loca- tions, including an abundance of supply in the Turnpike corridor south of Cutler Ridge. The Planning Department will closely monitor growth trends in the various subareas of the County and will recommend adjustments when warranted in the future. The PAB recommended that Application 40 be approved. The CR Report indicated that the PAB's reasoning with respect to this matter was as follows: Because this is the area where people want to live, sprawl is justified and the urban devel- opment boundary should be expanded. In re- sponse to DCA's objections, the PAB noted that services are available adjacent to this Appli- cation. Both the Planning Department and PAB recommended the denial of Application 47. The following reasons were given in the CR Report for their recommendations: The area is currently designated Agricul- ture on the Land Use Plan map, and is used for agricultural purposes. The Agricultural Land Use Plan adopted by the Board of County Commis- sioners recommends that the area designated Agriculture should not be redesignated for urban use until there is a documented need for more urban land. Approval of this Application would be very premature. The CDMP currently contains enough land within the year 2000 Urban Development Boundary in this Study Area to accommodate projected demand well beyond the year 2010. Similarly, in the area west of US 1 there is enough land for single-family type residences to accommodate projected demand through the year 2010. There is no current need to promote urban development of this Application area. This site contains fifteen acres of Dade County pine forest listed in Dade County's forest land inventory as having high environ- mental quality. It should not be prematurely urbanized. The Final Adoption Hearing: The Department's Participation On March 12, 1990, Mayor Clark mailed, by United States Express Mail, a letter to the Department requesting that it participate in the hearing at which final action would be taken by the Board of County Commissioners on the outstanding applications filed during the Amendment Cycle. The body of the letter read as follows: The Board of County Commissioners requests that the Florida Department of Community Affairs participate in its hearing to address biennial applications requesting amendments to the 2000-2010 Comprehensive Development Master Plan (CDMP) for Metropolitan Dade County. This request is made pursuant to Section 9J-11.011(2) of the Florida Adminis- trative Code and Section 2-116.1(4) of the Code of Metropolitan Dade County. The public hearing will be held on Monday, March 26, 1990, at 9:00 AM in the Commission Chambers, 111 N.W. 1 Street, Miami. If neces- sary, this hearing will be continued on Tuesday, March 27, 1990, in the Commission Chambers. The purpose of this hearing is to afford the Board of County Commissioners an opportunity to hear the applicants explain their applica- tions and to receive public comments on the applications, on the "Objections, Recommenda- tions, and Comments" report submitted by the Florida Department of Community Affairs, and on the recommendations of the Planning Advi- sory Board and of the Local Planning Agency. At the conclusion of this hearing, the Board of County Commissioners will take final action to approve, approve with change, or deny each of the applications. Should you or your staff need any assistance or additional information regarding this hearing, please contact Mr. Robert Usherson, Chief, Metropolitan Planning Division, Metro-Dade Planning Department, at (305)375-2835, (Suncom) 445-2835. The Department, by letter, advised Mayor Clark that it would send a Department representative to "participate" in the hearing. The body of the letter read as follows: In response to your request of March 12, 1990, the Department of Community Affairs will send a representative to participate in the March 26, 1990, public hearing to adopt the proposed Metro Dade County comprehensive plan amendments. The Department's representative is authorized to restate our position as expressed in the Department's February 3, 1990 [sic] Objections, Recommendations and Comments Report, and to listen to all parties. It is the Department's position that the adoption public hearing is not the proper forum for modifying the Depart- ment's position or approving proposed revisions to the comprehensive plan. The Department's representative will be without authority to modify the Department's position or approve proposals discussed at the public hearing. The Department's representative will be authorized, however, to comment on proposals to resolve objections included in the report. Final approval of any proposal may only be granted by the Secretary of the Department of Community Affairs. The Department's role with respect to approv- ing proposed revisions will begin upon adop- tion and submittal of the comprehensive plan, pursuant to Chapter 9J-11.011, Florida Admin- istrative Code. If I may be of further assis- tance in this matter, please contact me at (904)488-9210. The Department representative selected to attend the final adoption hearing was Harry Schmertman, a Planner IV with the Department. Schmertman had not been involved in the preparation of the ORC. He reviewed the report, however, before attending the hearing. Schmertman arrived at the Commission Chambers on the morning of March 26, 1990, prior to the commencement of the hearing. Upon his arrival, he spoke with the County's Planning Director and requested that he be recognized at the outset of the hearing. The Planning Director responded that "the Mayor would take care of that." Following this conversation, Schmertman took a seat "[a]pproximately five or six rows back [from the front] in the center of the auditorium." Thereafter, the hearing formally convened. Shortly after the commencement of the hearing, before any applications were discussed, Mayor Clark introduced Schmertman and indicated that he was attending the hearing on behalf of the Department. Immediately following the Mayor's introduction of Schmertman, the Chairman of the PAB, Lester Goldstein, presented the PAB's recommendations to the Board. During his presentation, Goldstein expressed disappointment over the various factual inaccuracies in the Department's ORC. Schmertman did not respond to Goldstein's comments, nor did he at any time attempt to modify or explain any statement or position taken by the Department in the ORC. Indeed, he made no public remarks while in attendance at the hearing. While Schmertman did not address the Board of County Commissioners at the hearing, at no time during the hearing was he asked to do so. Furthermore, the members of the Board gave no indication that they did not understand, and therefore needed clarification of, the Department's position on the applications under consideration. At around 4:30 p.m., before the conclusion of the hearing on that day, Schmertman left the Commission Chambers to return to Tallahassee. Neither he, nor any other Department representative, was present for the remainder of the hearing on that day or for the continuation of the hearing on the following day, when public discussion and debate ended and a formal vote was taken on each of the pending applications. 21/ Schmertman did not tell anyone that he was leaving the Commission Chambers. He reasonably believed, however, that there was no need to announce his departure because he was "in a very obvious location . . . and was very visible leaving." No member of the Board, nor any other County representative, asked Schmertman, as he was leaving, to remain until the conclusion of the hearing. The Final Adoption Hearing: The Objectors' Participation The Redland Citizen Association, Inc. (RCA) is a nonprofit Florida corporation, which has as its stated purpose and primary activity the preservation and promotion of the agrarian character and lifestyle of the Redlands area of South Dade. The RCA engages in fundraising to obtain the financial resources necessary to accomplish this objective. The RCA has approximately 700 to 800 members, all of whom reside in or around the Redlands in Dade County. At all times material hereto, Martin Motes has been a member of the RCA, resided in a home that he owns in the Redlands, and owned and operated a wholesale orchid nursery business located on property adjacent to his residence, three quarters of a mile north of the Application 47 property. Motes appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the RCA and its members, including himself, he expressed opposition to Application 47. He argued that the change sought through this application was "premature" and constituted an "unwarranted and unwanted" extension of urban development into a viable agricultural area. Neither Motes, nor any other representative of the RCA, objected to any application other than Application 47. 22/ The Sierra Club is a nonprofit national organization organized for the following purpose: To explore, enjoy and protect the wild places of the earth, to practice and promote the re- sponsible use of the earth's ecosystems and resources, to educate and enlist humanity to protect and restore the quality of the natural and human environment, and to use all lawful means to carry out these objectives. The Sierra Club, Miami Group, is a local division of the national organization specifically chartered to include residents of both Dade and Monroe Counties. It has a Dade County address. At all times material hereto Bruce Rohde has been a member of the Sierra Club and resided in a home that he owns in Dade County. Rohde appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the Sierra Club and its members, including himself, he expressed opposition to Applications 40 and 47, among others. He contended that the extensions of the UDB requested through Applications 40 and 47 were "premature." Neither Rohde, nor any other representative of the Sierra Club, objected to Application 39. The League of Women Voters of the United States is a national organization. The League of Women Voters of Florida is a state organization. The League of Women Voters of Dade County, Inc. (League) is a nonprofit Florida corporation affiliated with the national and state organizations. The League's purpose, as stated in its Articles of Incorporation, is as follows: [T]o promote political responsibility through informed and active participation of citizens in government and to take action on govern- mental measures and policies in the public interest in conformity with the principles of The League of Women Voters of the United States and The League of Women Voters of Florida. It engages in fundraising to obtain the financial resources necessary to accomplish this objective. The League rents office space in Dade County out of which it conducts its operations. 23/ At all times material hereto, Carol Rist has been a member of the League, resided in a home that she owns in Dade County, and owned and operated a Dade County business. Rist appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the League and its members, including herself, she expressed opposition to various applications, including Applications 39, 40 and 47. With respect to Applications 40 and 47, her arguments were similar to those advanced by Rohde at the hearing. As to Application 39, she contended that Wellenhofer's property was too close to the airport to be used for residential purposes and that it was a desirable site for the location of an office complex to which residents of the West Kendall area would be able to commute. 24/ At all times material hereto, Evelyn B. Sutton has resided in a home that she owns in the eastern half of the Application 47 property. Sutton appeared before the Board of County Commissioners at the final adoption hearing. She expressed her opposition to Application 47, contending that its approval would have an adverse impact upon the unique agrarian character and lifestyle of the Redlands. She did not object to any application other than Application 47. At all times material hereto, Frances L. Mitchell has resided in a home that she owns in the eastern half of the Application 47 property. Mitchell and some of her neighbors retained an attorney, who appeared before the Board of County Commissioners at the final adoption hearing and made a presentation on their behalf. The attorney advised the Board that his clients were in opposition to Application 47 because it was "premature" and represented unneeded "leapfrog residential development in the heart of the Redlands." Neither Mitchell, her attorney, nor any other representative acting on her behalf, objected to any application other than Application 47. At all times material hereto, Rod Jude has resided in a home that he owns in Dade County and owned and operated a Dade County wholesale nursery business. Jude appeared before the Board of County Commissioners at the final adoption hearing. He expressed his opposition to Application 40, arguing that there was no demonstrated need for the conversion of the Application 40 property to non-agricultural uses. Jude also objected to Applications 37, 41 and 42. He did not address either Application 39 or Application 47. The Final Adoption Hearing: The Applicants' Participation Jeffrey E. Lehrman, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 39 on behalf of Wellenhofer. In addition to making an oral presentation, Lehrman gave the members of the Board written materials. During his presentation, Lehrman stated, among other things, the following: Application 39 represented infill, not leapfrog, development; such development would not adversely impact upon, nor would it be adversely impacted by, the Tamiami Airport; there had been significant residential development in the area around Wellenhofer's property in recent years; the approval of Application 39 would not interfere with any existing flight patterns; Wellenhofer's property was not under an existing flight path, but rather was in a "hole-in-the-doughnut" and therefore was distinguishable from properties that were the subject of other applications; Tamiami's north runway was an auxiliary runway unequipped to handle operations at night and in bad weather; the applicable 65/75 LDN noise contour did not intrude upon Wellenhofer's property; the new statute that the Planning Department had referenced in recommending denial of Application 39 had been vetoed by the Governor and therefore was really no statute at all; helicopter training took place on the south, rather than the north, side of the airport; and if Application 39 was approved, a buffer of industrial land would still exist between Wellenhofer's property and the airport. Thomas Carlos, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 40 on behalf of the Suchmans. Carlos was assisted by James Holland, a professional planner with the firm of Post, Buckley, Shuh and Jernigan (Post Buckley), Jack Schnettler, a professional traffic engineer with Post Buckley, Richard Tobin, President of Strategy Research Corporation, Inc. (SRC), a national research firm with offices in Florida, and Richard Roth, Vice- President of SRC in charge of planning research studies. During his opening remarks, Carlos advised the County Commission that the Suchmans had executed a covenant obligating themselves to developing their property in accordance with the Traditional Neighborhood Development concept. He then introduced Holland to the Commission. During his presentation, Holland did, among other things, the following: summarized the contents of Table 1G of the PR Report relating to the environmental, physical and archaeological/historic conditions that existed on the Application 40 property; contrasted the Application 40 property with the undeveloped lands in MSA 6.1 already within the UDB which, he argued, had marginal development potential because of undesirable environmental constraints; opined that, as a consequence of these impediments to development in MSA 6.1, MSA 6.2 would experience an increase in demand; showed a graphic depicting land use patterns in and around the Application 40 property, including the amount of land available for residential development in the area; displayed another graphic showing future Urban Services Areas in unincorporated Dade County, including the Tamiami area; in conjunction with the these graphics, argued that the residential development of the Application 40 property was in furtherance of the Tamiami area's designation as an employment center; quoted from a Planning Department report that suggested that development around the Tamiami Airport would reduce metropolitan transportation needs; asserted that the use of the Application 40 property for residential purposes would comply with federal guidelines as well as those found in the CDMP; in support of this assertion, presented a graphic illustrating that no part of the proposed residential portion of the Application 40 property would be included in the 65/75 LDN contours which measure the noise generated by airport operations; and described the urban services which were available or programmed to serve the Application 40 property. Jack Schnettler's presentation addressed traffic and transit issues. He presented a graphic showing the existing and programmed transportation network in the vicinity of the Application 40 property and highlighted particular improvement projects that he considered worthy of note. In describing the this transportation network, he commented that it augmented the employment center character of the area. Schnettler expressed the view that the property would be adequately served by transit and roadways. In addition, he disagreed with the Planning Department's forecast that approval of Application 40 would adversely impact upon the level of service on Southwest 177th Avenue, which, he noted, was located one and half miles to the west of the application property. Tobin and Roth briefly summarized a written report that SRC had prepared for the Suchmans and other private applicants (SRC Report). The report analyzed housing demand in the West Kendall area. The SRC Report concluded that the supply of residential land in MSA 6.2 25/ would be depleted in the year 2004 under a low case scenario, in 1998 under a medium case scenario, and in 1996 under a high case scenario, which the report opined, without explanation or reasonable justification, was "the one most likely to occur." As noted above, in its PR Report, the Planning Department had projected a depletion year of 2006, which the SRC Report criticized as being "out of touch with reality." In making its projections, SRC compared the yearly average of new housing units built and sold in MSA 6.2 from 1980 to 1984, which was a down period for the housing industry in Dade County, to the yearly average of new housing units build and sold in MSA 6.2 from 1985 to 1988, which was a boom period for the housing industry in the County. The information used by SRC regarding the number of housing units constructed and sold during these years was obtained from the Dade County Tax Assessor's office. Under the low case scenario, SRC assumed that housing demand in MSA 6.2 would remain constant at its 1985 to 1988 yearly average of 1,780 units. Under the medium case scenario, SRC assumed that the rate of housing demand would increase by about 35% over the 1985 to 1988 experience (which was 70% above the 1980 to 1984 experience). Under the high case scenario, SRC assumed that the 70% increase in housing demand between 1980 to 1984 and 1985 to 1988 would continue unabated until the supply of residential land was depleted, an assumption that is even more unrealistic than the assumptions underlying low and medium case scenarios. SRC reached these conclusions without analyzing housing demand on a countywide basis. Neither did it rely upon any population projections, notwithstanding that housing demand is driven by population growth. Furthermore, it did not take into consideration the cyclical fluctuations that characterize the housing market, nor did it account for vacant units in its projections. A professionally accepted methodology is one that is replicable, transparent, documented, free of error and inaccuracies, based upon assumptions that are clearly stated and reasonable and designed to avoid improbable and unlikely outcomes given past trends. In projecting housing demand for MSA 6.2., SRC did not utilize a methodology meeting these requirements. In addition to the oral presentations made by Carlos, Holland, Schnettler, Tobin and Roth, the Suchmans also presented to the Board of County Commissioners a written memorandum authored by Carlos and David S. Goldwich, Esquire, with attachments, including a copy of the SRC Report, copies of excerpts from Planning Department publications, and a copy of a recent article appearing in "New Miami Magazine," which reported that "Dade farmers, mostly by shifting production to new areas to the west actually increased total acres under tillage from 78,263 in 1981 to 84,534 in 1987" and that "Dade agricultural acreage [was] not expected to shrink substantially, despite encroachments by developers." The memorandum made many of the same arguments that were advanced by those who spoke on behalf of the Suchmans at the final adoption hearing. Robert Traurig, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 47 on behalf of Alajuela N.V. During his presentation, Traurig stated, among other things, the following: the Application 47 property was contiguous to the 1988 UDB; the failure to include the property within the UDB was an oversight that should be corrected; there was significant residential development surrounding the property in all directions; the area in which the property is located was an area in transition; it was changing from an agricultural area to one that was predominantly residential in character; as demonstrated by the recent development in the area, there was a demand for housing in this part of the County; most of the people who wanted to live in this area could not afford the five-acre estates allowed on property designated for "agricultural" use under the CDMP; the redesignation of the Application 47 property sought by Alajuela N.V. would not have an adverse impact on the agricultural industry in the County; such redesignation was not premature nor would it result in leapfrog development; there were no environmental impediments to the development of the Application 47 property; the elevation of the property was 11 feet above sea level and drainage was good; there were no wetlands on the site; the tree colony on the eastern half of the property would be protected by County ordinance; and there were roadways, parks, fire service and other urban services available to serve the property. The Final Adoption Hearing: The Aviation Director's Comments At the request of Commissioner Hawkins, Rick Elder, the County's Aviation Director, commented on four application properties in Study Area G that were in close proximity to the Tamiami Airport, including Wellenhofer's property. Elder stated that there were no flight patterns over Wellenhofer's property. With respect to noise, he noted that Wellenhofer's property was not within the 65/75 LDN contour. Elder did not indicate that he had any safety concerns regarding Application 39. The Final Adoption Hearing: Debate and Vote by the Board Following the conclusion of that portion of the final adoption hearing devoted to public discussion and debate on March 27, 1990, the Board of County Commissioners considered and voted on each of the pending applications. At the request of Commissioner Hawkins, the first application to be considered and voted on by the Board was the TND application, Application 71. The Board voted to approve Application 71. The remaining applications were considered and voted on in sequential order. During the Commissioners' debate on Application 39 and other applications in the vicinity of Tamiami Airport, Commissioner Gersten expressed the view that, with respect to these applications, neither noise nor safety should be a concern. Commissioner Schreiber concurred. Commissioner Valdes remarked that, although he was opposed to the other applications under consideration, he was not opposed to Application 39 because the property that was the subject of the application was not, according to Aviation Director Elder, under a flight pattern. Commissioner Dusseau indicated his opposition to Application 39. He argued that there was no need for residential development on Wellenhofer's property and that it was preferable to retain its "industrial and office" land use designation to further the creation of an activity center around the airport. Application 39 was approved by a five to three vote. When Application 40 came up for consideration, Commissioner Hawkins recommended that the application be modified. While he did not object to the extension of the UDB to include the Application 40 property, he suggested that only the application property owned by the Suchmans be redesignated for residential use. He explained that, not only would this modification eliminate concerns generated by the application regarding compatibility with airport operations, it would set the stage for the development of a TND in the West Kendall area. Commissioner Hawkins noted that the County Commission had long wanted to have a TND in this area and that the Suchmans were willing to develop their property as a TND if it was redesignated for residential use. Commissioner Dusseau responded to these comments by indicating that he favored the TND concept, but that he did not believe that the Suchmans property was where such a TND should be located. Application 40, as modified pursuant to Commissioner Hawkins' recommendation, initially failed to win approval on a tie vote. On the motion of Commissioner Winn, Application 40, as so modified, was reconsidered. On reconsideration, it was approved by a six to two vote. Application 47 was also approved by a six to two vote. Application 58, which proposed to allow new commercial agricultural uses within the UDB, and Application 62, with its revised population estimates and projections, were among the other applications that were approved by the Board of County Commissioners at the final adoption hearing. Of the applications seeking an extension of the UDB, only Applications 40 and 47 were approved. A total of 49 applications, either in their original form or as modified, were approved by the Board. The majority of these applications, like Applications 39, 40 and 47, sought to change one or more land use designations on the FLUM. Other approved applications, in addition to Applications 39, 40 and 47, that sought to have the Board of County Commissioners change a non- residential land use to a residential land use were Applications 12, 13, 14, 26, 28 and 44. 26/ Approximately 410 acres of land were redesignated on the FLUM from non-residential to residential land uses as a result of the approval of Applications 12, 13, 14, 26, 28, 39, 40, 44 and 47. Assuming that the properties that were the subject of these applications will be able to develop at the maximum residential densities indicated on the FLUM, these redesignations will have increased the supply of residential land in the County by approximately 1930 dwelling units. 208. The approval of Applications 1, 2, 3, 4, 9, 11, 14, 23, 27, 29, 45 and 46 resulted in the redesignation on the FLUM of approximately 115 acres of land from residential to non-residential land uses. Assuming that the properties that were the subject of these applications would have been able to develop at the maximum residential densities indicated on the FLUM, these redesignations may be said to have reduced the supply of residential land in the County by approximately 910 dwelling units. Applications 5, 6, 19, 22 and 24 sought to have land designated on the FLUM for "low density residential" use redesignated for "office/residential" use. Applications 8, 15 and 16 sought to have land designated on the FLUM "medium density residential" redesignated "office/residential." These eight applications were all approved. Approximately 105 acres of land were redesignated "office/residential" as a result of the approval of these eight applications. Assuming that the properties that were the subject of these applications would have been able to develop at their maximum pre-approval residential densities, as indicated on the FLUM, and further assuming that, after these redesignations, they will be developed as office sites exclusively, these redesignations may be said to have reduced the supply of residential land in the County by approximately 1960 dwelling units. If the assumption were made that these redesignated properties will experience both office and residential development 27/ and that the residential development will amount to one half the number of dwelling units that would have been constructed had the property not been redesignated, the reduction in the supply of residential land resulting from these redesignations instead would be 980 dwelling units. It is unlikely, however, that as many as 980 dwelling units will be built on these properties. There were other applications, in addition to those specifically mentioned above, that sought FLUM redesignations and were approved by the Board of County Commissioners, however, they involved a change from one non- residential land use to another non-residential land use and therefore did not have a direct impact on the supply of residential land in the County. When viewed collectively, the changes made by the Board of County Commissioners to the FLUM during the Amendment Cycle have not been shown to have resulted in any appreciable increase in the supply of residential land in the County as a whole. That is not to say, however, that the Board's actions did not serve to increase the supply of residential land in certain areas of the County. For instance, by virtue of its approval of Applications 40 and 47, the Board added to the supply of residential land on the urban fringe in Study Area G and Study Area I, respectively. Following its vote on each of the pending applications, the Board adopted Ordinance No. 90-28, which amended the CDMP in a manner consistent with Board's actions on these applications. (The CDMP, as so amended, will be referred to as the "1990 CDMP." Ordinance No. 90-28 will be referred to as the 1990 Plan Amendment.) The CDMP, as Amended by Ordinance No. 90-28: Key Provisions Statement of Legislative Intent The 1990 CDMP contains a Statement of Legislative Intent. It provides as follows: This Statement expresses the legislative in- tent of the Board of County Commissioners with regard to the Comprehensive Development Master Plan (CDMP). This statement is applicable to the CDMP in its entirety and is declared to be incorporated by reference into each element thereof. Nothing in the CDMP shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of vested rights as determined to exist by the Code of Metropolitan Dade County, Florida. The CDMP shall not be construed to preempt considerations of fundamental fairness that may arise from a strict application of the Plan. Accordingly, the Plan shall not be deemed to require any particular action where the Plan is incomplete or internally inconsistent, or that would constitute a taking of private property without due process or fair compensa- tion, or would deny equal protection of the laws. The CDMP is intended to set general guide- lines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. The CDMP contains long-range policies for Dade County. Numerous policies contained in the CDMP must be implemented through the County's land development regulations. Neces- sary revisions will be made to the County's land development regulations by the date required by Section 163.3202, FS. Other policies of the plan propose the establishment of new administrative programs, the modifica- tion of existing programs, or other administra- tive actions. It is the intent of Dade County that these actions and programs be initiated by the date that Dade County adopts its next Evaluation and Appraisal (EAR) report, unless another date is specifically established in the Plan. The CDMP is not intended to preempt the processes whereby applications may be filed for relief from land development regulations. Rather, it is the intent of the Board of County Commissioners that such applications be filed, considered and finally determined, and that administrative remedies exhausted, where a strict application of the CDMP would contravene the legislative intent as expressed herein. The Board recognizes that a particular application may bring into conflict, and neces- sitate a choice between, different goals, prior- ities, objectives, and provisions of the CDMP. While it is the intent of the Board that the land use element be afforded a high priority, other elements must be taken into consideration in light of the Board's responsibility to pro- vide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. The term "shall" as used in the CDMP shall be construed as mandatory, subject, however, to this Statement of Legislative Intent. The term "should" shall be construed as directory. The FLUM The FLUM is an integral part of the 1990 CDMP's future land use element. It shows the proposed distribution, extent and location of permitted land uses for the entire land area of Dade County and, in so doing, reflects the CDMP's goals, policies and objectives, to the extent possible. In addition to a year 2000 UDB, the FLUM also has a year 2010 Urban Expansion Area Boundary. There are 18 land use categories represented on the FLUM: estate density residential communities; low density residential communities; low-medium density residential communities; medium density residential communities; medium-high density residential communities; high density residential communities; industrial and office; restricted industrial and office; business and office; office/residential; institutional and public facility; parks and recreation; agriculture; open lands; environmental protection; environmentally protected parks; transportation; and terminals. The FLUM also depicts activity centers, expressways, major and minor roadways, levees, canals and other bodies of water. The following advisement is set forth on the face of the FLUM: This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Inter- pretation of the Land Use Plan Map: Policy of the Land Use Element." That text provides necessary definitions and standards for allow- able land uses, densities or intensities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder. The land use plan map (LUP), in conjunction with all other adopted components of the Com- prehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. The LUP Map reflects municipal land use policies adopted in municipal comprehen- sive plans. However, this plan does not supersede local land use authority of incor- porated municipal governments currently auth- orized in accordance with the Metro-Dade Charter. For further guidance on future land uses authorized within incorporated municipal- ities, consult the local comprehensive plan adopted by the pertinent municipality. The Interpretative Text That portion of the 1990 CDMP entitled "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" (Interpretive Text) provides in pertinent part as follows with respect to the residential land use categories shown on the FLUM: Residential Communities The areas designated Residential Communities on the LUP map permit housing types ranging from detached single-family to attached multi- family structures including manufactured housing and mobile home parks. The residen- tial communities designations indicate the overall residential density for the area. Also permitted in residential communities, in keeping with the Plan's objectives and poli- cies, are secondary neighborhood and community serving uses such as schools, parks, and houses of worship. Some additional uses such as day care centers, foster care and group housing facilities and similar uses, and neighborhood serving institutional and utility uses may also be permitted in residential com- munities in keeping with the circumstances and conditions outlined in this section, and with the objectives and policies of this plan. * * * The Land Use Plan Map includes six residential density categories which are depicted on the Plan map by different symbols/colors. Each category is defined in terms of its maximum allowable gross residential density. Develop- ment at lower than maximum density is allowed and may be required where conditions warrant. For example, in instances where a large portion of the "gross residential acreage" is not a part of the "net" residential building area, the necessity to limit the height and scale of the buildings to that compatible with the sur- rounding area may limit the gross density. The categories do not have a bottom limit or min- imum required density; all categories include the full range of density from one dwelling unit per five acres up to the stated maximum for the category. . . . Estate Density. This density range is typi- cally characterized by detached estates which utilize only a small portion of the total par- cel. Clustering, and a variety of housing types may, however, be authorized. The maxi- mum density allowed in this category is 2.5 dwelling units per gross acre. Low Density. A larger number of units is allowed in this category than in the Estate density. The maximum density allowed is 6 dwelling units per gross acre. This density category is generally characterized by single family type housing, e.g., single family detached, cluster, zero lot line, and town- houses. It could possibly include low-rise apartments with extensive surrounding open space providing that the maximum gross den- sity is not exceeded. Low-Medium Density. This category allows up to 13 dwelling units per gross acre. The types of housing typically found in areas designated low-medium density include single family homes, townhomes, and low-rise apart- ments. Medium Density. This Density Category allows up to 25 dwelling units per gross acre. The type of housing structures typically permitted in this category include townhouses, low-rise and medium rise apartments. Medium-High Density. This category accommo- dates apartment buildings ranging up to 60 dwelling units per gross acre. In this cate- gory, the height of buildings, and therefore, the attainment of densities approaching the maximum, depends to a great extent on the dimensions of the site, conditions such as location and availability of services, ability to provide sufficient off-street parking, and the compatibility with, and impact of the development on surrounding areas. High Density. This category permits up to 125 dwelling units per gross acre. This den- sity is only found in a few areas located within certain municipalities where land costs are very high and where services will be able to meet the demands. * * * Traditional Neighborhood Developments (TNDs). Traditional neighborhood developments which incorporate a broad mixture of uses under specific design standards may also be ap- proved in Residential Communities in the manner specifically authorized in this sub- section. The purpose of the traditional neighborhood development is to enable the creation of new communities that offer social and architectural quality, characteristic of early American town planning. Many of these early models, developed prior to 1940, offer insight into the design of coherently planned communities. The concept is patterned after those inherent in these earlier developments and provides a design clarity through a hierarchy of streets, a focus towards pedes- trian activity, low scale community buildings and open squares as the focal point of the neighborhood. The County shall adopt land use regulations that incorporate the objectives of a traditional neighborhood development concept. . . 28/ Within areas designated on the LUP map as Res- idential Communities, a mixed use Traditional Neighborhood Development permitting business, office, industrial, artisanal, home occupa- tions, and other uses authorized by this subsection may be approved providing that the following criteria are met: The minimum contiguous land area is 40 acres and is not located within the Estate density category; and The site is under single-ownership at the time the master development plan or equivalent is approved; and Residential density does not exceed the density depicted on the Land Use Plan Map, except that a maximum density of ten dwelling units per acre may be approved in the Low Density category; and Public open spaces such as squares or parks comprise a minimum of five acres or five percent of the developed area, whichever is greater; and Civic uses, such as meeting halls, schools, day care centers and cultural facilities com- prise a minimum of two percent of the developed area; and Business, office and industrial uses, that are separate from residential mixed uses do not exceed seven percent of the gross land area; and Where the TND borders or is adjacent to land that is designated Estate, Low Density or Low-Medium Residential and land so designated is used for residences or is vacant, the sep- arate business, office, and industrial uses identified in item No. 6 above, and those business, office, and industrial uses mixed with other uses shall not be permitted within 175 feet of the TND boundary and all non-residential components of such uses shall be acoustically and visually screened from said bordering or adjacent land; and when a TND borders land designated Agriculture or Open Land said business, office or industrial uses shall not be permitted within 330 feet of said TND boundary; and Residential, and residential uses mixed with shop-front, artisanal and home occupation uses comprise the remainder of the developed area; and In calculating gross residential density uses listed in item No. 6 shall be excluded, all other uses may be used to determine the maximum permitted density. The Interpretive Text provides that, with respect to the "office/residential" land use category, "[u]ses allowed in this category include both professional and clerical offices and residential uses." The following is stated in the Interpretative Text in pertinent part with respect to the "agriculture" land use category: Agriculture The area designated as "Agriculture" contains the best agricultural land remaining in Dade County. 29/ The principal uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture such as packing houses on compatible sites, and farm residences. Uses ancillary to, and necessary to support the rural residential community of the agricultural area may also be approved, including houses of worship and local schools. In order to protect the agricultural industry it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed in this area. Residential development that occurs in this area is allowed at a density of no more than one unit per five acres. 30/ Creation of new parcels smaller than five acres for residential use may be approved in the Agriculture area only if the immediate area surrounding the subject parcel on three or more sides is predominantly parcelized in a similar manner, and if a division of the sub- ject land would not precipitate additional land division in the area. No business or industrial use should be approved in the area designated Agriculture unless the use is directly supportive of local agricultural production, is located on an existing arterial roadway, and has adequate water supply and sewage disposal in accordance with Chapter 24 of the County Code, and the development order specifies the approved use(s). Other uses compatible with agriculture and with the rural residential character may be approved in the Agriculture area only if deemed to be a public necessity, or if deemed to be in the public interest and no suitable site for the use exists outside the Agriculture area. Existing quar- rying and ancillary uses in the Agriculture area may continue operation and be considered for approval of expansion. Also included in the Agriculture area are enclaves of estate density residential use approved and grandfathered by zoning, owner- ship patterns and platting activities which predate this Plan. The grandfather provisions of Sections 33-196, 33-280, and 33-280.1 of the Dade County Code shall continue to apply to this area except that lots smaller than 15,000 square feet in area are not grandfathered hereby. Moreover, all existing lawful uses and existing zoning are deemed to be consistent with this Plan unless such a use or zoning: (a) is found through a subsequent planning study, as provided in Land Use Policy 5D, to be inconsistent with the foregoing grandfather provisions or with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as deter- mined by the Code of Metropolitan Dade County, Florida. . . . Also deemed to be consistent with this Plan are uses and zoning districts which have been approved by a final judicial decree which has declared this Plan to be invalid or unconstitutional as applied to a specific piece of property. This paragraph does not, however, authorize the approval or expansion of any use inconsistent with this plan. To the contrary it is the intent of this Plan to contain and prevent the expansion of inconsistent development in the Agriculture area. Activity centers are described in the Interpretative Text as "high- intensity design unified areas which will contain a concentration of different urban functions integrated both horizontally and vertically." The Interpretative Text contains the following discussion regarding the UDB: Urban Development Boundary The Urban Development Boundary (UDB) is in- cluded on the LUP map to distinguish the area where urban development may occur through the year 2000 from the areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2000 provided that level-of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by expanding the UDB when the need for such expansion is deter- mined to be necessary through the Plan review and amendment process. The CDMP seeks to facilitate the necessary service improvements within the UDB to accom- modate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infra- structure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be per- mitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. The entire unincorporated area within the UDB is eligible to receive and utilize Severable Use Rights (SURs) in accordance with provi- sions of chapter 33-B, Code of Metropolitan Dade County. Accordingly, certain developments as specified in Chapter 33-B may be entitled to density or floor area bonuses as authorized by Chapter 33-B. No new commercial agricultural use of property may be established within the Urban Development Boundary, except on property designated Agri- culture on the LUP map or zoned AU (agricultural) or GU (interim). 31/ All property within the Urban Development Boundary not designated Agri- culture or zoned AU or GU shall not be permit- ted to be used for the establishment of any new commercial agricultural use. An additional exception is that land in utility easements or rights-of-way may be approved for new commercial agricultural uses where the use would be compat- ible with, and would have no unfavorable effect on, the surrounding area. Commercial agricultural uses include, without limitation, all uses of property associated with commercial horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; apiculture; pisciculture, when the property is used principally for the production of tropical fish; all forms of farm production; and all other such uses, except retail nurseries and retail greenhouses. Inci- dental agricultural use of property specifi- cally authorized by zoning which is otherwise consistent with the LUP map does not constitute commercial agriculture within the meaning of this provision. The Urban Expansion Area is described as follows in the Interpretative Text: The Land Use Map also contains a year 2010 Urban Expansion Area (UEA) Boundary. The UEA is comprised of that area located between the 2000 UDB and the 2010 UEA Boundary. The Urban Expansion Area is the area where cur- rent projections indicate that further urban development beyond the 2000 UDB is likely to be warranted some time between the year 2000 and 2010. Until these areas are brought within the year 2000 UDB through the Plan review and amendment process, they are allowed to be used in a manner consistent with the provisions set forth for lands designated as "Agriculture" or the applicable "Open Land" area. Urban infrastructure and services should be planned for eventual extension into the UEA, sometime between the years 2000 and 2010. However, if water or sewer lines or major roadway improvements are extended beyond the UEA in order to serve a necessary public facility that has been approved consistent with the Comprehensive Development Master Plan, these improvements should be sized or restric- ted to accommodate only the needs of the public facility. The significance of the UDB and UEA Boundary is explained in the Interpretative Text as follows: Critical in achieving the desired pattern of development is the adherence to the 2000 Urban Development Boundary (UDB) and 2010 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that actions of one single-purpose agency does not foster development that could cause other agencies to respond in kind and provide facil- ities in unanticipated locations. Such uncoor- dinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. The subject of plan amendments is also addressed in the Interpretative Text, which states the following on the subject: It is recognized that the development capacity of the area within the UDB and UEA will vary with time. Part of the supply will be util- ized and additional supply will be added from time-to-time through the approval of Plan Amendments. Some land will be built upon at densities which are higher than permitted by existing zoning because rezonings will occur in the future, and some development will occur at densities lower than that permitted by zoning. Moreover, impediments can arise to the utilization, at maximum potential densities, of all lands within the boundaries. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density or character of a particular area. Because the development capacity of the LUP map fluc- tuates with time, it will be reevaluated on a periodic basis as part of the Plan review and amendment process. The Interpretative Text enumerates the following as the "long- standing concepts embodied in Dade County's CDMP:" Control the extent and phasing of urban development in order to coordinate development with programmed provision of public services. Preserve and conserve land with valuable environmental characteristics, recreation uses, or scenic appeal. Encourage development in areas most suit- able due to soil conditions, water table level, vegetation type, and degree of flood hazard. Restrict development in particularly sensitive and unique natural areas. Maximize public ownership of beaches and shorelands within the Coastal Area to insure their preservation, conservation or public use. Minimize consumption of energy for trans- portation purposes and the amount of air pol- lution from transportation sources by encour- aging a more compact urban form. Shape the pattern of urban development to maximize the efficiency of existing public facilities and support the introduction of new public facilities or services such as improved mass transit systems. Preserve sound and stable residential neighborhoods. Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling, and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and char- acter to provide economies of scale and effi- ciencies of transportation and other services for both the public and private sectors. Redirect higher intensity development towards activity centers of areas of high countywide accessibility. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. Prohibit new residential development and other noise sensitive activities from locations near airport noise impact zones. Avoid excessive scattering of industrial or commercial employment locations. Encourage agriculture as a viable economic use of suitable lands. The Goal and Selected Objectives and Policies of the Future Land Use Element The following is the goal of the future land use element (FLUE) of the 1990 CDMP: Provide the best possible distribution of land use, by type and density, to meet the physical, social, cultural and economic needs of the present and future resident and tourist popu- lation in a manner that will maintain or improve the quality of the natural and man-made environ- ment and amenities, and ensure the timely and efficient provision of services. The following are among the objectives and policies found in the 1990 CDMP's FLUE: Objective 1 Decisions regarding the location, extent and intensity of future land use in Dade County, and urban expansion in particular, will be based upon the physical and financial feasi- bility of providing, by the year 2000, all urbanized areas with services at Levels of Service (LOS) which meet or exceed the minimum adopted in the Capital Improvements Element. Policies 1A. All development orders authorizing new, or significant expansion of existing urban lands uses, shall be contingent upon the pro- vision of services at the Levels of Service (LOS) which meet or exceed the LOS standards specified in the Capital Improvements Element (CIE). Metro required by Chapter 163.3202, Florida Statutes (F.S.), implement the requirements of Section 163.3202(2)(g), F.S. 1B. Priority in the provision of services and facilities and the allocation of financial re- sources for services and facilities in Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in allocations for services and facilities shall support the staged development of the Urban Expansion Area (UEA). * * * Objective 3 The location and configuration of Dade County's urban growth from 1989 through the year 2010 shall emphasize concentration around centers of activity, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Policies 3A. High intensity, well designed activity centers shall be facilitated by Metro-Dade County at locations having high countywide multimodal accessibility. * * * 3C. Metro-Dade shall approve infill devel- opment on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facili- ties are projected to have capacity to accom- modate additional demand. 3D. Metro-Dade shall seek to prevent discon- tinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its biennial CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. * * * 3H. Public facility and service providers shall give priority to eliminating any infra- structure deficiencies which would impede rehabilitation or renewal of blighted areas. 3I. In formulating or amending development regulations, Dade County shall avoid creating disincentives to redevelopment of blighted areas. Where redevelopment occurs within the urban area, requirements for contributions toward provision of public facilities may be moderated where underutilized facilities or surplus capacities exist, and credit toward required infrastructure contributions may be given for the increment of development replaced by redevelopment. * * * Objective 5 Dade County shall, by the year 2000, reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretative text, or with the character of the surrounding community. Policies 5A. Uses designated on the LUP map and inter- pretative text, which generate or cause to generate significant noise, dust, odor, vibra- tion, or truck or rail traffic, shall be pro- tected from damaging encroachment by future approval of new incompatible uses such as residential uses. 5B. Residential neighborhoods shall be pro- tected from intrusion by uses that would disrupt or degrade the health, safety, tran- quility and overall welfare of the neighbor- hood by creating such impacts as excessive noise, light, glare, odor, vibration, dust, or traffic. 5C. Complementary, but potentially incompat- ible uses shall be permitted on sites with functional neighborhoods, communities or dis- tricts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Objective 6 Upon the adoption of this plan, all public and private activity regarding the use, development and redevelopment of land and the provision of urban services and infrastructure shall be consistent with the goal, objectives and poli- cies of this Element, with the adopted Population Estimates and Projections, and with the future uses provided by the adopted Land Use Plan (LUP) map and accompanying text entitled "Interpreta- tion of the Land Use Plan Map," as balanced with the Goals, Objectives and Policies of all Ele- ments of the Comprehensive Plan. Policies 6A. The textual material entitled "Interpre- tation of the Land Use Plan Map" contained in this Element establishes standards for allowable land uses, and densities or intensities of use for each land use category identified on the adopted Land Use Plan (LUP) map, and is declared to be an extension of these adopted Land Use Policies. 6B. All development orders authorizing a new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goal, objectives and poli- cies of the CDMP including the adopted LUP map and accompanying "Interpretation of the Land Use Plan Map." 6C. All planning activities pertaining to development and redevelopment in Dade County shall be consistent with the "Population Esti- mates and Projections" contained in this Element, and with the locations and extent of future land uses as identified by the LUP map and its interpretative text. 6D. The area population projections shown on the map of "Population Estimates and Projec- tions" shall be used to guide public and private entities in planning for urban devel- opment and redevelopment and to guide the location, timing, and capacity of all urban services and facilities. Objective 7 Beginning in 1989 Dade County shall maintain a process for periodic amendment to the Land Use Plan map, consistent with the adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Plan Map accommodates urban expansion at projected countywide rates. Policies 7A. Activity centers, industrial complexes, regional shopping centers, large-scale office centers and other concentrations of signifi- cant employment shall be recognized as poten- tial structuring elements of the Metropolitan area and shall be sited on the basis of metro- politan-scale considerations at locations with good countywide multi-modal accessibility. 7B. Distribution of neighborhood or community serving retail sales uses and personal and pro- fessional offices throughout the urban area shall reflect the spatial distribution of the residential population, among other salient social, economic and physical considerations. 7C. Residential development shall occur in locations that are suitable as reflected by such factors as the following: recent trends in location and design of residential units; projected availability of service and infra- structure capacity; proximity and accessi- bility to employment, commercial and cultural centers; avoidance of natural resource degra- dation; and maintenance or creation of amenities. 7D. In conducting its planning, regulatory, and capital improvements and intergovernmental coordination activities, Dade County shall seek to facilitate planning of residential areas as neighborhoods which include recrea- tional, educational and other public facilities, houses of worship, and safe and convenient cir- culation of automotive, pedestrian and bicycle traffic. 7E. Through its planning, regulatory, capital improvements and intergovernmental coordination activities, Dade County shall continue to pro- tect agriculture as a viable economic use of land in Dade County. * * * 7G. Necessary utility facilities may be lo- cated throughout Dade County in all land use categories as provided in the "Interpretation of the Land Use Plan Map" text. 7H. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstra- ted to be viable. 7I. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Ob- jectives 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 impede provision of services at adopted LOS standards. Be compatible with abutting and nearby land uses; and Enhance or degrade environmental or histor- ical resources, features or systems of County significance. Objective 8 Dade County shall continue to maintain in the Code of Metropolitan Dade County and adminis- trative regulations, and shall enhance as nec- essary, by the date required by Section 163.3203, F.S., provisions which ensure that future land use and development in Dade County is consistent with the CDMP. * * * 8D. Dade County shall continue to investigate, maintain and enhance methods, standards and reg- ulatory approaches which facilitate sound com- patible mixing of uses in projects and communi- ties. 8E. Dade County shall enhance and formalize its standards for defining and ensuring compatibility among proximate uses, and requirements for buffer- ing. Factors that will continue to be considered in determining compatibility include, but are not limited to noise, lighting, shadows, access, traffic, parking, height, bulk, landscaping, hours of operation, buffering and safety. Objective 9 Energy efficient development shall be accom- plished through metropolitan land use patterns, site planning, landscaping, building design, and development of multimodal transportation systems. Policies 9A. Dade County shall facilitate contiguous urban development, infill, redevelopment of substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed use projects to promote energy conservation. Selected Goals, Objectives and Policies of Other Elements The following is the goal of the 1990 CDMP's traffic circulation element: Develop, operate and maintain a safe, efficient and economical traffic circulation system in Metropolitan Dade County that provides ease of mobility to all people and for all goods, is consistent with desired land use patterns, conserves energy, and protects the natural environment. Policy 4C. of the traffic circulation element provides as follows: Dade County's priority in construction, main- tenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan Map. Second priority in transportation allocations shall support the staged develop- ment of the urbanizing portions of the County within the Urban Expansion Area. Transporta- tion improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. The following are among the objectives and policies of the 1990 CDMP's aviation subelement: Objective 4 Minimize air space interactions and obstruc- tions to assure the safety of aviation users and operators and residents of Dade County. Policies * * * 4D. Support zoning that would protect exis- ting and proposed aviation flight paths con- sistent with federal agency guidelines. 4E. Seek federal agency cooperation in pro- tecting future air space from development obstructions. * * * Objective 8 Maximize compatibility between airports and the surrounding communities. Policies * * * 8B. Dade County shall implement Federal Aviation Administration FAR Part 150 Noise Compatibility Studies completed for appro- priate airports through the Land Use Element of the Dade County Comprehensive Master Plan, the Dade County Zoning Ordinance, and the South Florida Building Code to provide for land use compatibility in the vicinity of these air- ports. Objective 6 and Policy 6A. of the 1990 CDMP's housing element provide as follows: Objective 6 Increase residential accessibility to public facilities, services, and employment centers throughout the County to include parks and other recreational amenities. Policies 6A. Utilize existing planning and programming mechanisms to insure that new residential devel- opment occurs only if it is coordinated with plans for the provision of an adequate level of services and facilities. Policy 6C. of the 1990 CDMP's conservation, aquifer recharge and drainage element provides as follows: Areas in Dade County having soils with good potential for agricultural use without addi- tional drainage of wetlands shall be protected from premature urban encroachment until the need for such urban conversion is demonstrated. Objective 1 and Policy 1A. of the 1990 CDMP's water, sewer and solid waste element provide as follows: Objective 1 In order to serve those areas where growth is encouraged and discourage urban sprawl, the County shall plan and provide for potable water supply, sanitary sewage disposal, and solid waste disposal services on a countywide basis in concert and in conformance with the future land use element of the comprehensive plan. Policies 1A. The area within the Urban Development Boundary of the adopted Land Use Plan Map shall have the first priority in providing potable water supply, sanitary sewage disposal, and solid waste disposal services, and for commit- ting financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Space, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health or safety. Objectives 3, 4 and 5 and Policies 3B., 4A., 4B. and 5A. of the 1990 CDMP's capital improvements element provide as follows: Objective 3 Upon adoption of this Plan land use decisions will be made in the context of available fiscal resources such that scheduling and providing capital facilities for new development will not degrade adopted service levels. Policies * * * 3B. Service and facility impacts of new de- velopment must be identified and quantified so that sufficient public facilities will be planned and programmed to be available when needed. All development orders authorizing new, or significant expansion of existing urban land uses, shall be contingent upon the provision of services at the Levels of Service (LOS) which meet or exceed the adopted LOS standards. * * * Objective 4 Levels of service standards for those services listed in the CIE will be upgraded and main- tained at adopted levels. Policies 4A. By the date set in Section 163.3202 F.S., Dade County shall formalize requirements that all new development regardless of size which benefits from the provision of public facili- ties and infrastructure will bear an equitable share of the costs of such facilities, make contribution in kind or transfer land, in amounts necessary to accommodate the impact of proposed development. 4B. Appropriate funding mechanisms will be adopted and applied by Dade County in order to assure the fiscal resources to maintain acceptable levels of service. Such funding mechanisms include special tax districts, municipal taxing service units, local option taxes, user fees, local gas taxes, general obligation bonds, impact fees, and special purpose authorities among others. * * * Objective 5 Upon the adoption of this plan development approvals will strictly adhere to all adopted growth management and land development regu- lations and will include specific reference to the means by which public facilities and infrastructure will be provided. Policies 5A. As a priority, previously approved de- velopment will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban ser- vices and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service localized needs. This element also includes a five-year schedule of capital improvements. Transmittal of Plan Amendment to the Department On or about April 3, 1990, the County Manager transmitted to the Department Ordinance No. 90-28, along with other documentation, including the written material that the Suchmans had submitted in support of their application, as well as a document prepared by the Planning Department which purported to provide "a synopsis of the information received by the Board of County Commissioners as bases for approving the applications subject to DCA objections." The Planning Department's synopsis stated the following with respect to Applications 39, 40 and 47: Application No. 39 The flight path for training flights around Tamiami-Kendall Airport circle around this application site but do not directly fly over this site. This application represents urban infill rather than leap frog development. Approval of residential use on this site will allow people to live in close proximity to the employment center around the Tamiami-Kendall Airport. Application No. 40 The site will be used for a Traditional Neighborhood Development (TND). A covenant was provided to ensure this. Services are available on sites immediately to the east. The area is not flood prone, or environmen- tally sensitive in any way. Extensive testimony and documentation was received which casts doubt on the accuracy of the Planning Department's estimates and pro- jections of growth in this area. (See enclosed exhibits). This site is nearby the industrial and office employment center which is developing around the Tamiami-Kendall Airport, therefore, urbanization of this site complements and supports the policy of promoting development around activity centers. The extension of the Coral Reef Drive corridor provides an alternative to the Kendall Drive corridor as a location for additional urban development. * * * Application 47 The site is bordered on the east and south by the year 2000 Urban Development Boundary (UDB). It is in the logical path of future urban development. To the south is the urban- izing area of Homestead. Pockets of estate residential homes and zoning exist in the area designated Agricul- ture to the north and west of this site. There are not level of service problems in the area. The area is not flood prone. The specific density of estate residences to be built on this site is not established by approving the CDMP amendment; that will be decided at a future zoning hearing. The transmittal package sent by the County Manager was received by the Department on April 6, 1990. Suchmans' Request to Receive Notice of the Department's Action By letter dated March 30, 1990, David Goldwich, Esquire, counsel for the Suchmans, requested that the Department send him a copy of the "notice of intent to find the CDMP Application No. 40 in compliance or not in compliance with Chapter 163." The Department responded to Goldwich's letter by sending him a letter, dated April 17, 1990, in which it promised to provide him with a copy of the notice of intent when it was issued. The Department's Compliance Determination: Notice and Statement of Intent In reviewing the County's 1990 Plan Amendment, the Department treated each approved application as a separate amendment to the CDMP. Following its review of these approved applications, the Department issued its notice of intent "to find the amendment(s) adopted by Ordinance 90- 28, Amendment Nos. 39, 40 and 47 NOT IN COMPLIANCE and Amendment Nos. 1 to 9, 11 to 16, 19, 22 to 24, 26 to 29, 44 to 46, 49, 51, 53 and 55 to 71 IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S." On or about May 15, 1990, the Department sent a copy of the notice of intent to the Miami Herald, along with a letter requesting that the notice be published in the May 21, 1990, edition of the Herald. Through no fault of the Department's, the notice was published in the May 24, 1990, edition of the Herald, instead of the May 21, 1990, edition as the Department had requested. The Department mailed a copy of the notice of intent to the Suchmans' counsel, 32/ although it was never received. By letter dated May 18, 1990, to Mayor Clark, the Department advised the County of its compliance determination. On May 21, 1990, the Department issued a statement of intent in which it explained the bases for its determination that "Amendment Nos. 39, 40 and 47 [were] NOT IN COMPLIANCE." In its statement of intent, the Department alleged that "Amendments 40 and 47 are not supported by an adequate suitability analysis of the vacant land to which they apply, or an adequate analysis documenting the need for the UDB expansion [in violation of] Rules 9J-5.005(2)(a), 9J- 5.006(2)(b) and 9J-5.006(2)(c), F.A.C.;" "Amendments 40 and 47 are inconsistent with other provisions in the plan (including but not limited to Objectives 1, 3 and 7, Policies 1A, 1B, 3D, and 7G and implementing procedures on p. 33 and 34 of the Future Land Use Element) concerning discouraging urban sprawl and prioritizing public facilities within the UDB [in violation of] Rules 9J- 5.005(5)(a), 9J-5.006(3)(b)7. and 9J-5.011(2)(b)3., F.A.C.;" "Amendments 40 and 47 are inconsistent with Objective 7, Policies 7E, H and I, and implementing procedures on p. 34 and 35 of the Future Land Use Element, and other provisions of the plan concerning future expansion of the UDB [in violation of] Rules 9J- 5.005(5)(a) and (b), F.A.C.;" "Amendments" 40 and 47 result in "an internal inconsistency because [they] negate the intended effect [of the settlement agreement between the Department and the County] of allowing roadway degradation in existing urban areas, which is to encourage development and redevelopment in such areas, promote public transportation and discourage urban sprawl" and, consequently, these amendments are in violation of "Rules 9J-5.006(3)(b)7. and 9J-5.011(3)(b)3., F.A.C.;" "[A]mendments 40 and 47 are not supported by data analysis which justifies changing the agricultural land use to industrial or residential land use [in violation of] Rules 9J-5.005(2)(a) and 9J-5.006(2)(c), F.A.C.;" "Amendment" 39 "inappropriately places a residential area within a proposed aviation flight path which is inconsistent with Objective 4 and Policy 4D in the Port and Aviation Element of the Dade Comprehensive Plan [in violation of] Rules 9J-5.005(5)(a) and (b), 9J-5.006(3)(b)3. and 9J- 5.006(3)(c)2., F.A.C.; "Amendments" 40 and 47 cause the CDMP to be inconsistent with Goal (16)(a) and Policies (16)(b)(2) and 18(b)(1) of the State Comprehensive Plan, as well as Policies 57.1.2 and 69.1.1 of the South Florida Regional Policy Plan; and "Amendment" 39 causes the CDMP to be inconsistent with Policy 69.1.1 of the South Florida Regional Policy Plan. Referral to the Division: The Department's Petition and Amended Petition On June 8, 1990, the Department filed a petition with the Division of Administrative Hearings. Appended to the petition were copies of the Department's notice of intent and its statement of intent. The Department alleged in the petition that the "plan amendments" made by the County through the adoption of Ordinance No. 90-28 were: not in compliance because they contain the "inconsistent provisions" described in the Statement of Intent and for the following additional reasons: Amendment 39 is inconsistent with Objec- tives 5, 6 and 7 and Policies 5B, 7C, 7D, and 7I-3 of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (6), F.A.C. Amendment 40 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objectives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D of the plan's Future Land Use Element. On June 19, 1990, the Department filed an amended petition with the Division. That portion of the original petition excerpted above was modified to read as follows in the amended petition: The plan amendments are not in compliance because they contain the "inconsistent provisions" de- scribed in the Statement of Intent and for the following additional reasons: Amendment 40 is inconsistent with Objec- tives 5 and 6, and Policies 5B, 7A, 7B, 7C, and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7C and 7D of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (b). Amendments 40 and 47 are inconsistent with the following provisions of the State Comprehensive Plan: Land Use Goal (16)(a) and Policies (16)(b)1 and 2; Downtown Revitalization Goal (17)(a) and Policy (17)(b)1; Public Facilities Goal (18)(a) and Poli- cies (18)(b)1 and 2; Economy Policies (22)(b) 3 and 12; Agriculture Goal (23)(a). The Objectors' Petition for Leave to Intervene and Rist's Amended Petition On June 26, 1990, the Objectors filed with the Division a joint petition for leave to intervene in this matter. The petition incorporated the allegations that the Department had made in the original petition it had filed with the Division, as well as the recommendations that the Dade County Planning Department had made with respect to Applications 39, 40 and 47. In addition, the Objectors alleged the following in their petition regarding these approved applications: [S]aid amendments 39, 40, and 47 are inconsis- tent with the State Comprehensive Plan, Sec- tion 187.201, F.S., specifically subsections 16a, 16b1, 16b2, 17a, 17b1, 18a, 18b1, 18b2, 20a, 22b3, 22b12, and 23a. Briefly put, the amendments fail, inter alia, to preserve natural resources; fail to maintain and expand agriculture; fail to encourage the separation of rural and urban life; provide for incompatible neighboring uses; promote urban sprawl; waste public and private assets; and fail to aid in a state transpor- tation system. * * * The amendments are not supported by data showing a need for the uses approved [and] thus violate Rule 9J-5.006(2)(c), Florida Administrative Code. On December 10, 1990, at the outset of the final hearing in the instant case, Objector Rist requested permission to file an amended petition which contained the following additional allegations not found in the Objectors' joint petition for leave to intervene: Amendments 40 and 47 do not reflect and are inconsistent with "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" pages I-35 through 39 and not pages 33 through 35 of the Future Land Use Element as erroneously cited in the original petition. It is alleged that amendment 40 and 47 do not reflect and are inconsistent with Policies 3A, 3H, 5A, and 7A of the Future Land Use Element of the Comprehensive Plan. Amendments 39, 40 and 47 do not reflect and are inconsistent with Policy 6C of the Con- servation Element of the Comprehensive Plan. Amendment 39 does not reflect and is incon- sistent with Objective 8 of the Ports and Avia- tion Element of the Comprehensive Plan. Amendments 40 and 47 are inconsistent with Policy 23(b)2 of the State Comprehensive Plan. Miscellaneous Findings: The State Comprehensive Plan The State Comprehensive Plan addresses issues of statewide importance. The following are among the more than 300 individual goals and policies which comprise the State Comprehensive Plan: LAND USE.- Goal.- In recognition of the importance of preserving the natural resources and enhanc- ing the quality of life of the state, develop- ment shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives, and disin- centives which encourages a separation or urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. * * * DOWNTOWN REVITALIZATION.- Goal.- In recognition of the importance of Florida's developing and redeveloping down- towns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient and environmentally accept- able manner, Florida shall encourage the cen- tralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. * * * PUBLIC FACILITIES.- Goal.- Florida shall protect the sub- stantial 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. Policies.- Provide incentives for developing land in a way that maximizes the uses of existing pub- lic facilities. Promote rehabilitation and reuse of exis- ting facilities, structures, and buildings as an alternative to new construction. * * * (20) TRANSPORTATION.- (a) Goal.- Florida shall direct future trans- portation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass tran- sit, and other transportation modes. * * * THE ECONOMY.- Goal.- Florida shall promote an economic climate which provides economic stability, max- imizes job opportunities, and increases per capita income for its residents. Policies.- * * * Maintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resour- ces. * * * 12. Encourage the development of a business climate that provides opportunities for the growth and expansion of existing state indus- tries, particularly those industries which are compatible with Florida's environment. * * * AGRICULTURE.- Goal.- Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and re- lated industries in order to be a healthy and competitive force in the national and inter- national marketplace. Policies. Ensure that goals and policies contained in state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. Encourage diversification within the agri- culture industry, especially to reduce the vulnerability of communities that are largely reliant upon agriculture for either income or employment. Miscellaneous Findings: The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Regional Plan for South Florida to guide future development in Broward, Dade and Monroe Counties. The following are among the more than 650 individual goals and policies found in the Regional Plan: Regional Goal: 57.1 New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot economic- ally be provided. Regional Policies: * * * 57.1.2 Give priority to development in areas that are in need of redevelopment and in areas within which adequate support services are either programmed or available Regional Goal: 58.1 Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of land uses on the surrounding environment. Regional Policies: * * * 58.1.7 Encourage the compatibility of adja- cent land uses. * * * Regional Policies: 64.2.1 Land use in and around air- and sea-ports must be strictly controlled to allow future increased operations, to optimize volume, and to prevent unnecessary social or economic conflicts and costs. * * * Regional Goal: The 1990-1995 rate of loss of agricul- tural land to urban uses should be reduced by 10 percent from the 1980-1985 rate. Regional Policies: Encourage activities that maintain an economic/regulatory climate to ensure the con- tinued viability of agricultural interests when those interests are balanced against other concerns. The Regional Plan contains the following "background" information regarding the goal and policies pertaining to agriculture: Agriculture is one of Florida's most important industries. Traditional agriculture (citrus, vegetables and melons, livestock, poultry, greenhouse and nursery, field and other crops) contributed 27 billion dollars to Florida's economy in 1984. The agricultural vitality of South Florida stems from its climate which allows crops to be grown throughout the year, and the production of unique crops such as mangoes. In 1980, 126,785 acres of land, 4.7 percent of the total area in South Florida, was in cropland, pasture and range land, and forest land. This represents 0.5 percent of all such land in the State. Agricultural land is rapidly being lost. . . . When compared to Broward County, Dade County generates a significantly larger share of the economic activity due to agriculture in the Region. 33/ Current 1986 figures show 85,000 acres in agriculture, producing a large variety of crops. These include: tomatoes, snap beans, Irish potatoes, squash, tropical vegetables, sweet corn and fruits such as limes, mangoes and avocados. The markets for these fruits and vegetables are mainly in New York, Philadelphia, Boston, Atlanta, and Canada. Dade County is the largest producer of toma- toes, snap beans, and squash, of any county in the State of Florida. Over 90 percent of limes and mangoes produced in the United States are grown in Dade County. Dade County has the largest ornamental nursery industry of any county in the State of Florida. The main reason for Dade's success in agriculture is South Florida's climate. Vegetables are pro- duced in mid-winter when no other areas in the U.S. are producing. These crops provide fresh produce for the country's markets. It is significant to note that Dade County ranks last in the State for average farm size (59 acres) but is fifth in the State for market value of agricultural products. Agriculture is profitable on a per acre basis because the climate allows for double cropping. . . . In 1983, the agricultural industry produced less than 1 percent of total earnings in the South Florida region. The importance of this sector cannot be measured in dollar terms alone. The general public tends to view agriculture as a transitional land use. The benefits of maintaining the agricultural economy, however, are significant. Agricultural land can provide open space between areas with urban uses, it can serve as a watershed where water is collec- ted and later used in a farm or non-farm use, it can provide a habitat for wildlife, and it can provide unique beauty. New technology and agricultural practices are also providing new opportunities for disposing of sewage sludge on agricultural lands, benefitting both the rural and urban sectors. . . . Agricultural research activities have already yielded many benefits to South Florida agri- culture. Progress has been made in developing: more efficient irrigation systems, integrated pest management, improved strains of crops in production, as well as new crops to put into production. The findings of agricultural research can continue to improve the conser- vation, production, and marketing techniques available to South Florida farmers. South Florida farmers are experiencing many of the same problems that farmers in other high growth areas are facing. 34/ Land in South Florida that is suitable for agricul- tural use is also highly suitable for urban uses. Given the geographic configuration of the Florida Peninsula agricultural areas are never far removed from urban areas. Urban growth and the pressures of suburbanization are constantly felt by the Region's farmers. 35/ Many problems arise when agricultural and urban land uses interface. Non-farm residents complain because of farm noise, smells, and such practices as fertilizer and pesticide spraying. Nuisance suits and ordinances that prohibit certain farm practices create pressures that reduce the profitability and desirability to farm. 36/ Farm land conversion to urban uses is a serious problem in our Region. 37/ Analysis of prop- erty appraiser data shows the reduction in net agricultural acreage between 1980-1985 to be 18 percent for the Region. This figure applies mainly to agricultural land in Broward County. According to the Dade County Cooperative Exten- sion Service, net agricultural acreage has re- mained stable for the past 20 years. 38/ This is because land rezoned for urban uses has been replaced by other lands converted for agricul- tural use. This represents another problem. As agricultural land is converted to urban uses, agriculture may be pushed into wetlands, wild- life habitats, and other fragile ecosystems. Miscellaneous Findings: Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leapfrog development occurs when new develop- ment is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appro- priate for urban development. * * * Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant com- munities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the loca- tion of high amounts of commercial, retail, office and often multi-family residential de- velopment in a linear pattern along both sides of major arterial roadways. * * * Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive devel- opment pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. Indicators of sprawl mentioned in the memorandum include the following: The amount of residential land and densities depicted on the future land use map signifi- cantly exceed the projected need for residen- tial land use by type during the planning period. In discussing this indicator, the memorandum advised that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by the DCA." In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it may be necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities Density per square mile: Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the specific techniques recommended in the memorandum to curb "urban sprawl" are establishing "urban service areas and urban growth boundaries," "[p]romoting urban infill development and redevelopment," and imposing "mixed-use and clustering requirements." With respect the latter technique, the memorandum states as follows: One of the most important and critical tech- niques for discouraging sprawl is strong mixed use policies which require residential and nonresidential uses to be located in reason- ably close proximity to each other. Such policies should promote an attractive, func- tionally and physically integrated mix of commercial, office, retail, residential (including affordable housing), and recrea- tional land uses. Development designed in this manner can even occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residen- tial and nonresidential land uses at medium to high densities, promotes high levels of inter- nal capture, does not rely on rural arterials for local traffic movements, and encourages pedestrian and bicycle traffic. The tradi- tional neighborhood development district code is an example of how this concept can be implemented.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Administration Commission enter a final order in Case No. 90-3599GM finding that Metropolitan Dade County's 1990 Plan Amendment is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of December, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1991.
The Issue Whether Escambia County Ordinance No. 2017-65 (Ordinance) adopted on November 30, 2017, amending the Heavy Commercial/Light Industrial (HC/LI) zoning district in the Escambia County Land Development Code (LDC) is consistent with the 2030 Escambia County Comprehensive Plan (Comp Plan). Whether Remedial Ordinance No. 2018-30 (Remedial Ordinance) adopted on August 2, 2018, alleviates any inconsistency in the Ordinance such that the HC/LI zoning district regulation is consistent with the Comp Plan.
Findings Of Fact The Petitioner lives and owns property in Cantonment, Escambia County, Florida, in proximity to parcels of land impacted by the Ordinance and Remedial Ordinance. As such, the Petitioner would be subject to an increase in noise and traffic resulting from the Ordinance and Remedial Ordinance, as well as an adverse change in the character of her rural neighborhood. The County is a non-charter county and political subdivision of the State of Florida. The County is the affected local government and is subject to the requirements of chapter 163. DEO is the state land planning agency and has the duty to review and investigate petitions submitted under section 163.3213, challenging land development regulations adopted by local governments. The Ordinance was enacted to amend Part III of the County's LDC to address consistency of parcels zoned HC/LI with the MU-S FLU Category. The preamble to the Ordinance indicates a previous consolidation of zoning districts implemented on April 16, 2015, "did not eliminate all occurrences of zoning districts that appear to allow uses, density, or other intensities of use not authorized by the prevailing purposes and associated provisions of applicable future land use categories." The County's Board of County Commissioners (Board) found that "there are occurrences of HC/LI zoning within the MU-S future land use category," and "it is in the best interests of the health, safety, and welfare of the public to address any inconsistency created by HC/LI zoning within the MU-S future land use category." After the DEO's determination of partial inconsistency, the County adopted the Remedial Ordinance, which makes no reference to the April 15, 2015, consolidation of zoning districts in the preamble. In addition, the Remedial Ordinance amends the Ordinance to delete certain confusing references to parcels and their previous zoning as of April 15, 2015. Thus, the Remedial Ordinance is much clearer than the Ordinance in addressing the prior inconsistency created by HC/LI zoning within the MU-S FLU category. Mixed-Use Suburban Future Land Use Category The MU-S FLU is described in FLU Policy 1.3.1 of the Comp Plan as "[i]ntended for a mix of residential and non- residential uses while promoting compatible infill development and the separation of urban and suburban land uses." The MU-S FLU lists the range of allowable uses as "[r]esidential, retail sales & services, professional office, recreational facilities, public and civic, limited agriculture." The MU-S FLU prescribes standards, such as a residential maximum density of 25 dwelling units per acre (du/acre) and a non-residential maximum intensity floor area ration (FAR) of one. The MU-S FLU also describes the mix of land uses that the County intends to achieve for new development in relation to location, i.e., the distance from arterial roadways or transit corridors. Within one-quarter mile of arterial roadways or transit corridors: residential percentages of 8 to 25 percent; public, recreational and institutional percentages of 5 to 20 percent; non-residential uses such as retail service at 30 to 50 percent; and office at 25 to 50 percent. Beyond one-quarter mile of arterial roadways or transit corridors: residential percentages of 70 to 85 percent; public, recreational and institutional percentages of 10 to 25 percent; and non- residential percentages of 5 to 10 percent. The mix of land uses described by the Comp Plan MU-S FLU category can be implemented by multiple zoning districts in the LDC. Certain zoning districts within MU-S further the residential intentions of the FLU category and other zoning districts further the non-residential intentions of the MU-S FLU category. However, all zoning districts within MU-S contain some element of residential use. The Ordinance and Remedial Ordinance The Remedial Ordinance amended the purpose subsection (a) of section 3-2.11 of the County LDC by adding language that directly limited the "variety and intensity of non- residential uses within the HC/LI [zoning] district" by "the applicable FLU." This means that although various non- residential uses are permitted in the HC/LI zoning district, the FLU category in the Comp Plan determines the "variety and intensity" of those non-residential uses. The Ordinance had amended subsection (h) of section 3-1.3 of the County LDC to clarify that "[o]ne or more districts may implement the range of allowed uses of each FLU, but only at densities and intensities of use consistent with the established purposes and standards of the category." This clarification is consistent with FLU Policy 1.1.4 in the Comp Plan, which states that "[w]ithin a given future land use category, there will be one or more implementing zoning districts." The Remedial Ordinance amended the permitted uses in subsection (b) of section 3-2.11 of the County LDC by deleting the confusing reference to parcel sizes and their previous zoning as of April 15, 2015. In paragraph (6) of subsection 3-2.11(b), the Remedial Ordinance made clear that the listed "industrial and related uses" are not permitted "within MU-S." In general, the other permitted uses mirror the range of allowable uses in the MU-S FLU category. The Remedial Ordinance amended the conditional uses in subsection (c) of section 3-2.11 to make clear that the listed industrial and related conditional uses are not permitted within MU-S. The Ordinance added MU-S to the site and building requirements in subsection (d) of section 3-2.11 to require a maximum FAR of 1.0. The Remedial Ordinance also imposed a maximum structure height for "any parcel previously zoned GBD [Gateway Business District] and within the MU-S" of 50 feet, which is lower than the maximum of 150 feet for HC/LI zoning not within MU-S. The Remedial Ordinance amended the location criteria in subsection (e) of section 3-2.11 to limit "[a]ll new non- residential uses proposed within the HC/LI district" to parcels previously zoned GBD and within the MU-S FLU category that are located along and directly in front of "U.S. Highway 29 or State Road 95A." In addition, another location criterion limits new non-residential uses along arterial streets to within one-quarter mile of their intersection with an arterial street. The provisions of the Ordinance and Remedial Ordinance are consistent with the County Comp Plan. Petitioner's Objections The Petitioner contended that the HC/LI zoning regulation allows intensities and scales of commercial uses that are inconsistent with the character of a predominantly residential FLU like MU-S. The Petitioner based her contention on the Comp Plan definition of "suburban area" and argued that the Ordinance and Remedial Ordinance permitted uses, densities, and intensities that were not "suburban in nature." "Suburban area" is defined in the Comp Plan as "[a] predominantly low-density residential area located immediately outside of an urban area or a city and associated with it physically and socioeconomically." By contrast, "mixed-use" is defined in the Comp Plan as "any use that includes both residential and non-residential uses." See ch. 3, § 3.04, Escambia Cnty. Comp Plan. Contrary to the Petitioner's contention, the MU-S FLU category's primary focus is on a mix of uses in a suburban area. See Findings of Fact Nos. 6-8, above. Indeed, the FLU element of the Comp Plan expresses a purpose and intent to encourage mixed- use development. Also, the Petitioner's focus on the differences between the MU-S and Mixed-Use Urban (MU-U) FLU categories in the Comp Plan was misplaced. The premise that the HC/LI zoning district implements the MU-U FLU category better than it implements the MU-S FLU category was not the issue to be determined in this proceeding. Rather, it was whether the Ordinance, as amended by the Remedial Ordinance, amending the HC/LI zoning district in the LDC is consistent with the Comp Plan. All other contentions not specifically discussed have been considered and rejected.
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
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 EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 24th day of March, 2011.
The Issue The issue is whether two map changes on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Taylor County (County) by Ordinance Nos. 2009-15 and 2009-17 on December 15, 2009, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state planning agency charged with the responsibility of reviewing and approving amendments to comprehensive plans adopted by local governments. The County is a local government that administers a Plan. It adopted the two plan amendments that are the subject of this proceeding. It is considered a "rural" county with a current population of around 20,000 residents. Dr. Hutchins owns property in the County. Although his initial pleading alleges, and his Proposed Recommended Order states, that he "submitted oral comments regarding the subject amendments at transmittal and prior to adoption of the amendment," no evidence was presented at hearing that Dr. Hutchins did so during the adoption process. Ms. Redding and Mr. Wood are siblings and along with three other members of the Wood family jointly own property in the County. Like Dr. Hutchins, no evidence was presented at the hearing that either Intervenor submitted written or oral comments to the County during the adoption process. History Preceding the Amendments The process for adopting the County's first Plan, including the FLUM, began around 1988. For the purpose of drafting a FLUM, a Planning Board (Board) was created consisting of seven individuals, all of whom were volunteers with no formal planning experience. However, they received advice and assistance from two outside consultants, who also advised the County concerning the appropriate text to be used in the new Plan. Four members of the Board, including its former Chairman, testified at the final hearing. Over the next two years, the Board conducted meetings, spoke with numerous property owners, and collected information in order to assign each parcel an appropriate land use category. The collective efforts of the Board culminated in a large, hand- colored FLUM (consisting of numerous sections of aerial maps patched together) that was affixed to the wall of what is now the courtroom on the second floor in the County Courthouse. Testimony by former members of the Board established that the Hutchins parcel (then owned by Colin and Lucille Kelly) and the Bird Island parcel (owned by Wood, Redding, and other family members) were assigned a classification of Mixed Use-Urban Development. Because the County does not have a zoning code, the properties were never assigned a zoning classification consistent with that land use category. This classification was based upon the fact that at least two different businesses were being conducted on each parcel at the time, and the owners requested that they be given that classification. In the case of the Hutchins (then Kelly) property, it was being used to conduct a commercial fishing operation as well as a small construction company (with dump trucks, bulldozers, and front end loaders) that had a contract with Proctor & Gamble (now known as Buckeye Technologies, Inc.) to maintain roads. An office for the construction company was located in a separate mobile home placed on the property. Mr. Bird was a commercial fisherman and operated a wholesale fish business on Bird Island. Also, both he and his mother had separate homes on the property, another structure was used to store fish nets, and docking facilities for other commercial fisherman were maintained. Many of these structures were blown away during the so-called Storm of the Century on March 13, 1993, and never replaced. Except for property within the small communities of Keaton Beach, Dekle Beach, Denzel Beach, and Steinhatchee, and a few other small parcels, such as Dark Island, Cedar Island, and Intervenors' property, all of the remaining land along the coastline was placed in either Conservation or Agriculture. An unusual feature of the County is that it has one of the longest coastlines in the State (58 miles), stretching on the Gulf of Mexico from Jefferson County to Dixie County. Because around 88 percent of the coastline is owned by the State, very little waterfront land is left for development. In fact, Dr. Hutchins pointed out that except for his property and Bird Island, no other vacant, upland Gulf-front property within the County is in private ownership at this time. The FLUM, with the foregoing classifications, was adopted by the County by Ordinance No. 90-4 on June 19, 1990. Before it was submitted to the Department for its review, the County was advised by the Department that it would not accept the large, hand-colored FLUM in that format. Rather, the Department required that the map be reduced in size and digitized. To comply with this request, the original FLUM was dismantled into smaller sections and hand-carried to a firm in Crystal River that had the capability of reducing the large map into digital form. The original FLUM was then returned to the County Courthouse. When the larger map was reduced in size and converted to a digital format, it was not parcel-specific and failed to pick up the Hutchins parcel and Bird Island. Instead, except for larger tracts of land, especially in the small communities noted in Finding of Fact 8, the entire coastline was shown as being Conservation or Agriculture. This error was not detected by County officials or the affected property owners since they continued to rely upon the designations shown on the large, hand-colored FLUM in the Courthouse. The Department reviewed the FLUM, as digitized, assumed that the Hutchins and Bird Island property were Agriculture and Conservation, and found those parts of the FLUM to be in compliance. This agency action occurred on or about October 1, 1990. Thus, the Department never undertook a compliance review for either parcel with the intended higher density/intensity land use. In 1995, the room in which the original FLUM was mounted was taken over by another occupant of the Courthouse, and the original FLUM was moved to a different floor. During or after the moving process, it was lost or accidentally destroyed and its whereabouts have been unknown since that time. In 1993, Dr. Hutchins purchased his property from Colin and Lucille Kelly. Based on a conversation with a County employee, he purchased the property with the understanding that it was classified as Mixed Use-Urban Development. Although he had no specific plans to develop the property at that time, and still has none, the Mixed Use-Urban Development land use category was the major inducement for him to purchase the property. In 2005, Dr. Hutchins was approached by an investor who wished to develop the property at a later time. When the investor contacted the County to confirm its land use designation, Dr. Hutchins learned for the first time that the digitized map approved by the Department reflected the property carried an Agriculture/Rural Residential land use. Because of this, the agreement with the potential investor was never consummated. In a similar vein, Mr. Wood, who served on the Board that assigned land use designations to property on the original FLUM, and knew that the Board had designated his property as Mixed Use-Urban Development, placed the Bird Island property on the market in 2005 representing that it was classified in that category. A prospective purchaser checked with the County to verify its land use and learned that it was Conservation. Mr. Wood was unaware of this error until that time. Because of this, the sale was never consummated. After 2005, the County and Department held numerous meetings in an attempt to resolve this dispute. The Department refused to allow the FLUM to be changed to reflect the original land use designations. This led to the County adopting the two challenged amendments to correct what it characterizes as a "scrivener's error." Besides the two parcels that are in dispute here, on an undisclosed date, two other parcels (in the interior part of the County) were discovered by the County to have the wrong land use category as a result of the digitizing process. Both should have been placed in the Industrial land use category, and after a review, the Department had no objection to those errors being corrected by an amendment. The Plan Amendments On December 15, 2009, the County adopted Ordinance Nos. 2009-15 and 2009-17, also known as CPA 08-1 and CPA 08-3. The first amendment changed the land use on the 14-acre Hutchins parcel from Agriculture/Rural Residential to Mixed Use-Urban Development. The present land use allows one dwelling unit per 5 acres while the new land use designation allows up to 12 dwelling units per acre and a 60 percent impervious surface ratio for nonresidential development. See Department Exhibit 1, Future Land Use Policy I.3.2. Thus, up to 126 residential units and 96,476 square feet of non-residential development could be built on the Hutchins site. The second amendment changed the land use on the 3.36-acre Bird Island parcel from Agriculture-2 and Conservation to Mixed Use-Urban Development. The former land use allows one dwelling unit per 40 acres while the new land use would permit the same density/intensity as the Hutchins parcel. The new category would allow up to 30 residential units and 21,954 square feet of non-residential development. The amendments were transmitted by the County to the Department for its review in early April 2009. On June 5, 2009, the Department issued its Objections, Recommendations and Comments (ORC) report. The Department lodged objections to both amendments generally on the grounds the sites are not environmentally suitable for the proposed density and intensity increases; the amendments authorize an improper increase in density within the Coastal High Hazard Area (CHHA) without proper mitigation; the amendments failed to discourage urban sprawl; and they are internally inconsistent with existing provisions within the Plan. The ORC recommended that the County not adopt the amendments. Besides the Department, DEP and the Regional Planning Council also provided written comments on the amendments. By letter dated May 8, 2009, DEP generally noted that it had concerns regarding development adjacent to the Big Bend Seagrasses Aquatic Preserve (the Preserve) where the parcels are located, and that careful planning strategies should be used for any development on the land. See Department Exhibit 4. The Regional Planning Council issued a staff report on February 25, 2010, generally concluding that the amendments were consistent with the applicable Strategic Regional Policy Plan goals and objectives. See Department Exhibit 15; County Exhibit 1. The County did not respond in writing to the ORC. On December 15, 2009, it adopted the amendments without change. On March 10, 2010, the Department published its Notice of Intent to find the amendments not in compliance in the Taco Times. On March 16, 2010, the Department filed its Petition with DOAH raising the same grounds that are in its Notice of Intent. The Property The Hutchins parcel is located in the southwest part of the County, a few miles south of Keaton Beach, with around 500 to 600 feet fronting on the Gulf of Mexico. The 14 upland acres that are the subject of this case are a sub-site of a larger 25-acre parcel owned by Dr. Hutchins, with the remaining 11 acres being adjoining wetlands on the north and south sides. Dr. Hutchins has built a home on pilings on his property along with a smaller ancillary structure. Photographs indicate that except for trees, the remainder of the upland property is vacant. Bird Island also lies on the Gulf of Mexico just northwest of the Hutchins parcel and is surrounded by water on three sides. Photographs reflect one residence and a dock still on the property. The two parcels are separated by "marsh grass and a little water." Both parcels of property are easily accessible to, and just west of, County Road 361, a paved two- lane highway that begins south of the subject properties and runs adjacent to, or near, the coastline, eventually turning northeast and terminating on U.S. Highway 19 south of Perry. Both properties abut portions of the Gulf of Mexico that have been designated as an Outstanding Florida Water (OFW). The waters are a part of the Preserve, which was established in 1985 and is managed by DEP. The Preserve has exceptional biological, aesthetic, and scientific value. The two parcels are located in the Coastal High Hazard Area (CHHA). That is to say, they are in "the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." § 163.3178(2)(h), Fla. Stat. In order to increase density within the CHHA, the County must meet certain criteria set forth in Section 163.3178(9)(a), Florida Statutes. The Department's Objections As summarized in its Proposed Recommended Order, the Department contends that the two plan amendments are not in compliance because the sites are not environmentally suitable for the proposed density and intensity increases; there is an improper increase in density within the CHHA without proper mitigation; and the amendments fail to discourage urban sprawl. Although the Notice of Intent also raised the issue of whether the amendments are internally inconsistent with other provisions in the County's existing Plan, the Proposed Recommended Order does not address any specific internal inconsistencies, and the evidence focuses on the first three concerns. Therefore, the undersigned has assumed that those objections have been withdrawn or abandoned. Environmental Suitability With the exception of an area in the middle part of the County's coastline (where the Fenholloway River flows into the Gulf), the Preserve extends along the County's entire coastline, including the area in which the two parcels are located. The Preserve, designated as an OFW, contains various types of seagrasses, whose function is to provide habitat for a number of species, improve water quality, and reduce currents or wave energy in the event of a storm. It is undisputed that the seagrass beds near the amendment sites are high-quality, healthy, and of high environmental value. Coastal marshes are prevalent in the area of the County where the amendment sites are located. They serve many functions, including cleaning water flowing into The Preserve, functioning as a habitat for a number of species, and acting as a coastal barrier against storm surge during large storm events. Section 163.3177(6)(d), Florida Statutes, requires that local governments protect and conserve natural resources through the conservation element of the local plan. See also Fla. Admin. Code R. 9J-5.006(3)(b)4. A Department rule also requires local governments to limit the specific impacts and cumulative impacts of development or redevelopment upon water quality and living marine resources. See Rule 9J-5.012(3)(c)1. High-density development (up to 12 units per acre) on the parcels clearly has the potential to negatively impact coastal marshes and seagrasses adjacent to and near the subject sites. Although Dr. Hutchins indicated that he would develop his property only to the extent allowed by DEP so that the marshes and seagrasses would be safeguarded, the Department's practice for many years has been to assume that the property will be developed at its maximum allowable density and intensity. See, e.g., Sheridan v. Lee Cty, et al., Case No. 90- 7791 (DOAH Jan. 27, 1992; DCA June 28, 1993; Admin. Comm. Feb. 15, 1994)(compliance determination must be made based on maximum impacts authorized by the amendment terms, not speculation of a lesser impact). Mr. Wood's development intentions are not known. In any event, the two parcels potentially authorize 156 residential units and 113,430 square feet of non-residential uses adjacent to an OFW. Even so, the Mixed Use-Urban Development land use designation may still be permissible if specific conditions limiting the density/intensity on the parcels are incorporated into the Plan by asterisk or text language in conjunction with a new amendment. As noted in the Conclusions of Law, this planning practice has been used in other cases. Without any limitations, though, the preponderance of the evidence supports a finding that the maximum allowable density/intensity contravenes the cited statute and rules. CHHA Both parcels are located within the CHHA of the County. Section 163.3178(2)(h), Florida Statutes, requires that the County establish mitigation criteria for plan amendments located in the CHHA. Probably because of its small size in terms of population, and the lack of development (or ability to do so) along the coastline, the County has no goals, objectives, or policies addressing criteria for mitigation. Rule 9J-5.012(3)(b)6. requires that a plan "direct population concentrations away from known or predicted coastal high-hazard areas." Also, Rule 9J-5.012(3)(b)7. requires that a plan "maintain or reduce evacuation times." Prior to 2006, the Department would allow a local government to comply with the foregoing rules by allowing density increases in the CHHA if the local government decreased a similar type of density elsewhere. This practice was known as "offsets." In 2006, however, the Legislature amended the statute to include criteria for compliance with the two rules. Due to the change in the law, the Department no longer engages in the practice of offsets for land use changes in the CHHA. Instead, it requires a local government that proposes to increase density within the CHHA to meet the requirements of Section 163.3178(9)(a)1.-3., Florida Statutes. Under the statute, if the County can demonstrate a 16-hour out-of-county evacuation time for a category 5 storm event as measured on the Saffir-Simpson scale and a 12-hour evacuation time to shelter within the County for a category 5 storm event, an increase in density within the CHHA may be allowed. See § 163.3178(9)(a)1. and 2., Fla. Stat. Alternatively, the County may use one of the mitigation measures described in Section 163.3178(9)(a)3., Florida Statutes. Except for Coastal Element Objective IX-7 of the Plan, which provides that the County maintain a hurricane evacuation time of 9 hours for a category 1 storm, see County Exhibit 7, no data and analysis, such as a hurricane evacuation study for a category 5 storm event, was presented to demonstrate compliance with these requirements. Dr. Hutchins' submission during the mediation process of an evacuation plan for a category 3 storm does not satisfy this criterion. Typically, a local government will have an adopted plan for a category 5 storm, as well as an evacuation model. The preponderance of the evidence supports a finding that the mitigation measures in Section 163.3178(9)(a), Florida Statutes, have not been satisfied. At hearing, the County and Dr. Hutchins contended that offsets should still be used in this case to satisfy the mitigation requirements. They point out that the County has recently purchased property (totaling 51.7 acres) that is designated Mixed Use-Urban Development and more than compensates for any potential increase of residents needing to evacuate if the two amendments are found to be in compliance. As noted above, however, the practice of offsets was discontinued in 2006 with the passage of the new law. Notwithstanding assertions to the contrary, there was no legal requirement that the Department notify every affected local government and property owner that it was discontinuing that practice to comply with the new law.2 Urban Sprawl Rule 9J-5.006(5)(g)1.-13. identifies thirteen "primary" indicators of urban sprawl. The Department contends that eight indicators are "tripped" or "triggered" by the new amendments and collectively they indicate that the proliferation of urban sprawl is not discouraged. No evidence was presented regarding five indicators. According to the rule, "[t]he presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is tripped if the amendments allow uses in excess of demonstrated need. In this case no need analysis for additional land in the Mixed Use-Urban Development category was submitted by the County. The absence of a study is sufficient to trigger this indicator. Indicator 2 is tripped if the amendments allow "significant" amounts of urban development to occur in rural areas at substantial distances from existing urban areas. The only true existing "urban" area in the County, as that term is commonly understood, is the City of Perry. Other residential and some commercial development (but to a much lesser degree) is found mainly in a few small communities on the coastline such as Steinhatchee, an unincorporated community perhaps 15 miles south of the subject parcels with probably around 1,500 residents, and Keaton Beach and Dekle Beach, both having no more than a few hundred residents each. (Official recognition has been taken of the population data.) Keaton Beach is around 2 or 3 miles north of the subject property and has condominiums and other limited residential/commercial development. In addition, Dark Island is located a short distance north of Bird Island and is classified as Mixed Use-Urban Development, which authorizes the higher density/intensity development. Given this lack of "urban areas" in the County, virtually any development outside of Perry could arguably be considered "urban development . . . in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. Notwithstanding this unique (and perhaps unfair) situation, it is fair to characterize the potential addition of 12 units per acre as urban development and a total of around 150 residential units with associated commercial development as "substantial" when considering the County's size and existing development. Therefore, the second indicator has been triggered. Indicator 3 is triggered if the amendments allow urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development." Because urban development will occur in a rural, isolated area, this indicator is triggered. Indicator 4 is triggered if there is premature development of rural land that fails to adequately protect and conserve natural resources. The evidence supports a finding that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of existing and future public services and facilities. The evidence shows that the area is not currently served by central sewer and is not near any fire or police stations. While no public facilities are planned for that area in the five year capital improvement schedule, at a meeting in March 2010 the Taylor County Coastal Water & Sewer District indicated that a request for partial federal funding to extend central sewer services to Fish Creek, which lies beyond and to the south of the subject parcels, would be placed on the April agenda. See County Exhibit 7. Whether a request was actually made at that meeting is not of record. In any event, Coastal Element Policy IX.6.5 provides that where central sewer is not available in an area classified as Mixed Use-Urban Development, septic tanks may be used within the CHHA. See Department Exhibit 1. As to fire and law enforcement support, there is insufficient evidence to establish that these services cannot be provided in an efficient manner. Given these circumstances, there is less than a preponderance of the evidence to support a finding that indicators 6 through 8 are triggered. Indicator 9 is triggered if the plan amendments fail to provide a clear separation between rural and urban uses. There is insufficient evidence to support a finding that this indicator is triggered. Collectively, the presence of four indicators is sufficient to support a finding that the County has failed to discourage urban sprawl. E. Scrivener's Error The County and Intervenors rely heavily upon the fact that the plan amendments are in compliance because the amendments simply correct an error that occurred when, at the Department's direction in 1990, the original FLUM was reduced in size and digitized. While at first blush this argument is appealing, it assumes that the Department would have approved the new land use classifications in 1990 when it performed a compliance review of the original FLUM. But this never occurred, and the new amendments give the Department its first opportunity to determine if the new land uses are in compliance. It is undisputed that on an undisclosed date the Department approved an amendment based on the same type of error. While the record is somewhat confusing, it appears that in that case, the two properties were Industrial, they were not located in the CHHA, and on-going business concerns were operating on the properties. Intervenor Hutchins also cited several instances where mapping errors were allowed to be corrected by subsequent plan amendments. Where final agency action in those matters is of record, however, it shows that approval was given only after a compliance review was made by the Department.3
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 Plan Amendments CPA 08-1 and CPA 08-3 adopted by Ordinance Nos. 2009-15 and 2009-17 are not in compliance. DONE AND ENTERED this 13th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2010.
The Issue This proceeding concerns Lakepointe project, a development of regional impact (DRI) which was approved, with conditions, by Orange County. The developer contests certain of the conditions imposed by the County in its approvals of the DRI and the related rezoning. More specifically, the Petitioner has alleged that the County acted in an arbitrary and capricious manner, and contrary to the essential requirements of law by: eliminating free-standing commercial uses from the project and requiring that all commercial activities be internalized within office buildings and included within the office square footage; imposing a 10,000 square feet per acre limitation on all office development and reducing the total square footage from 805,000 to 756,000 square feet; limiting structures to 35 feet in height; requiring that all office buildings within the project be designed with "residential scale and character"; reducing the residential density and limiting the residential development to single family detached units on the north portion of the project in lieu of the multi-family, attached units proposed by Petitioner; and imposing uplands buffer requirements that reduce the amount of acreage available for development. Petitioner seeks to have the Florida Land and Water Adjudicatory Commission enter a modified development order eliminating these conditions. Orange County and the City of Maitland contend that the challenged conditions are reasonable, given the facts and circumstances surrounding the project, and that they are consistent with the requirements of law. Certain ancillary issues raised by the parties were eliminated through rulings of the hearing officer during the proceeding. Petitioner sought to present extensive evidence that the process by which the County arrived at its conditions of approval was improper as it relied unduly on the demands of the City of Maitland whose jurisdictional boundaries abut the project. Petitioner claims that the City and County reached an agreement on the project which was illegal as it did not comply with the provisions of section 163.3171, F.S. Although some evidence was permitted, and the issue is addressed in this recommended order, the issue is deemed irrelevant. As more fully explained in the conclusions of law, the de novo nature of this proceeding cures the procedural defects claimed by Petitioner. For a similar reason, the hearing officer denied a joint motion in limine by Orange County and the City of Maitland that would have precluded Petitioner from presenting any evidence related to conditions to which it did not expressly object at the December 14, 1987, public hearing conducted by the County.
Findings Of Fact The Parties Battaglia Properties, Ltd. (BPL) is a Florida limited partnership whose mailing address is Post Office Box 770398, Winter Garden, Florida 32787. BPL is owner and developer of the property that is the subject of this proceeding. As such, BPL has standing to initiate this appeal pursuant to section 380.07, F.S. (APS, statement of admitted facts, paragraph 3). Orange County (County) is a charter county and political subdivision of the State of Florida, authorized to issue "development orders", as that term is defined in section 380.031(3), F.S. and section 163.3164(6), F.S. (APS, statement of admitted facts, paragraph 4). The City of Maitland, Florida (City, or Maitland) is a municipal corporation which has properly intervened in this proceeding. (APS, statement of admitted facts, paragraph 5.) The Site and its Environs The property that is the subject of this appeal comprises 120.6 acres located north and south of Maitland Boulevard in unincorporated Orange County. The south portion consists of 33.3 gross acres and the north portion is 87.3 gross acres. The City of Maitland surrounds the property on three sides: east, south and west. An adjacent parcel owned by Petitioner, east of the property, lies within the incorporated city limits of Maitland. Together, the parcels constitute a development of regional impact (DRI) located within more than one local government jurisdiction, referred to as the "Lakepointe Project" or "Lakepointe DRI/PD". This appeal, and thus this order, address only that portion of the project located in unincorporated Orange County. Maitland Boulevard is currently constructed as a four-lane divided, limited access, principal arterial with interchanges at Interstate 4 on the west, and US 17-92 (Maitland Avenue) on the east. The Battaglia family has owned the property for approximately thirty- five years and has used it for citrus groves. At the time that the property was purchased by the Battaglias, the area was largely rural. Maitland Avenue (US 17-92) was a two-lane road, and Maitland Boulevard was a dirt road. I-4, approximately 1/4 mile to the west was constructed in the 1960's. Subdivisions and a school were constructed south of Sandspur Road, the southern boundary of the property, in the 1960's and 1970's. Around that time other residences were constructed north of the lakes on the northern boundary of the property. In the early 1970's, an office building was built to the east of the property, on the southside of Maitland Boulevard; and Lake Faith Villas, a multi-family residential development, was built on the northside of Maitland Boulevard. A large Jewish Community Center was developed across from Lake Faith Villas, on the south of Maitland Boulevard. West of the Battaglia parcel, and north of Maitland Boulevard, the property is vacant and has been the subject of various development proposals. West of the Battaglia property, but south of Maitland Boulevard, is a large church complex, Orangewood Presbyterian. On the westside of I-4, north and south of Maitland Boulevard is a 230 acre office development, Maitland Center, zoned in the 1970's and developed in the 1980's. When Orange County first adopted zoning, in 1957, the Battaglia parcel was zoned R-1AA, allowing single-family detached units, not to exceed 4.4 units per acre (du/acre). When the County adopted its comprehensive plan in 1980, the parcel north of Maitland Boulevard was designated for low-medium density residential use (4.4 to 7.5 du/acre). The south parcel was designated for low density residential use (1.01-4.4 du/acre). These designations are reflected on Orange County's 1986 Future Land Use Policy Guide Map, included in the County's comprehensive plan, the 1986 Growth Management Policy (GMP). The City of Maitland Comprehensive Development Plan (CDP) also addresses the property for planning and informational purposes. Figure 7-1 of the Land Use District Map of the 1986 CDP designates the area as an "undeveloped district" (UD), with the north parcel designated UD 2, permitting single family residential, multi-family, and limited non-residential uses. The south parcel is within a UD 1 district, permitting single family residential and related uses. (Joint Exhibit #10, pp 7-26 to 7-30) When the Florida Department of Transportation acquired the right of way for Maitland Boulevard, it acquired all access rights, except at specific limited locations where shared access between adjoining properties is necessary. The right of way includes anticipated expansion of Maitland Boulevard to six lanes. Access points to the north parcel of the Battaglia property are at both ends, east and west. Access to the south parcel is at the west only, with a "stubbed-out" road that dead-ends before reaching Sandspur Road, on the southern boundary of the south parcel. Construction of I-4, Maitland Boulevard, and Maitland Avenue (US 17- 92) has substantially changed the area from its rural character to one of mixed uses. Although the areas north and south of the property are well-established residential neighborhoods with homes selling between $100,000 and $200,000, the corridor along Maitland Boulevard is not residential in character. No single- family residential subdivision has direct access to Maitland Boulevard. The subdivisions south of the property access Sandspur Road; and those to the north, on the north side of Lakes Faith, Hope and Charity, access small neighborhood streets. Other events occurred which directly impacted the Battaglia family's use of its property. During the decade of the 1980's, five major freezes occurred: January 1981, January 1982, December 1983, January 1985, and December 1989. A substantial portion of the grove, particularly on the south parcel, was destroyed or severely damaged. Some of the trees also passed the upper limits of their twelve to thirty year productive life span. The Development Plan In the mid-1980's the owners came to believe that citrus was probably not the best investment they could make on this property any longer, given the grove damage and the development that was occurring in the area. A planning firm was consulted, and a master development plan was created for the property north and south of Maitland Boulevard. [See Appendix B, attached] The mixed use development, called Lakepointe, was divided into six parcels, as follows, with parcels one and two to be developed in the relatively narrow portion south of Maitland Boulevard, and four through six on the deeper and larger northern portion: Parcel Land Use Acreage Units 1 office 28.3 240,000 (gsf) gross square feet 2 multi-family 5.0 50 du (10 du/a) 3 office/ 3.3 35.000 gsf commercial 6.000 gsf 4 commercial 4.0 12,000 gsf 5 office 35.0 530.000 gsf 6 multi-family 12.0 100 du (8.3 du/a) greenbelt 2.8 entrance road 1.1 lakes 29.1 120.6 ac 805.000 gsf office 18,000 gsf commercial 150 du Under the plan, commercial use in parcel 3 was limited to financial institutions, and in parcel 4 was proposed to be a "quality restaurant". (Joint Exhibit #7; Battaglia Exhibit #2 (a), p. 12-2; APS, p. 6.) The narrative description accompanying the master development plan proposed a height limitation of 35 feet for those structures to be located south of Maitland Boulevard and for the structures to be located on parcel 6. A 55- foot height limitation was proposed by Petitioner for the office and commercial structures on parcels 3, 4, and 5, north of Maitland Boulevard. The Petitioner also proposed a 50-foot wide uplands greenbelt buffer, located landward of Lake Hope and its adjoining conservation areas, along the northern boundary of parcel 5, to provide additional open space and buffering for the 55-foot buildings that were proposed (APS, pp. 6-7). The offices to be located on parcel 1 were proposed to be of "residential scale", due to the limited depth of the parcel and to minimize detrimental impacts on nearby residential uses. (Battaglia Exhibit #2 (a) p. 12-6) A 25-foot buffer was proposed around the multi-family residential use proposed for parcel 6. (transcript, pp. 1173-4) Parcel 6, located in the far northwest portion of the property, is also called "Pine Island" for its unique vegetation. Its approximate 12 acres have never been cultivated in groves, but rather have been allowed to flourish in dense pine and oak trees. It protrudes, like the thumb of a mitten, into the area between Lakes Hope and Charity, and is separated from the subdivision to the north by a drainage divide densely vegetated with grasses, reeds and other plants associated with the presence of a high water table. (transcript, p. 1173) Petitioner's plan for parcel 6 considered the unique character of this portion of the property and proposed attached, multi-family units which would allow maximum flexibility in designing roads and parking and in preserving open space. The Application Process Due to the more extensive grove damage on the south property, Petitioner initially elected to proceed with development there first, and to continue cultivating its citrus on the north. Over the objection of the residential neighbors across Sandspur Road, on October 28, 1985, the Orange County Board of County Commissioners approved Battaglia's request to rezone the south parcel from R-1AA to Planned Development (PD) with office buildings and some multi-family units. The office park was permitted access limited to Maitland Boulevard, and the residential parcel was permitted access to Sandspur Road, with no access between the two parcels. The project was called Sandspur Grove PD. The City of Maitland area homeowners challenged the rezoning and prevailed in Circuit Court. However, the rezoning was reinstated when the Circuit Court was reversed on appeal. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988). In the meantime, the owners determined to pursue the entire development, and in April 1986, filed an application to rezone the north parcel from R-1AA to PD, and an application for Development Approval/Development of Regional Impact (ADA/DRI). On June 11, 1987, Petitioner filed its application to amend the Future Land Use Policy Guide Map contained in Orange County's comprehensive plan to a classification appropriate for the land uses proposed in the Lakepointe DRI/PD, as shown on the Master Development Plan (APS, p. 5). A detailed traffic study in support of the proposed Lakepointe Master Plan was included in the DRI application. Orange County and Maitland reviewed and approved in advance the methodologies and assumptions used in the traffic study. The study included traffic growth applicable to all vacant properties in the traffic impact area, including projected trips from 65,000 square feet of commercial retail. On March 29, 1987, the East Central Florida Regional Planning Council (ECFRPC) issued its final recommendation on the Lakepointe DRI. It recommended approval with conditions, eight of which address traffic, including the recommendation that phase III not proceed until Maitland Boulevard is six-laned, unless monitoring concludes the improvement is not necessary. (Joint Exhibit #8) The ECFRPC also noted in "issues of local concern" that the project is virtually surrounded by the City of Maitland and would have a significant impact on the City and its citizens, and that the project appears to be inconsistent with the Maitland Comprehensive Plan. The ECFRPC recommended that full review of the project be made at a joint public hearing conducted by the City and County. (Joint Exhibit #8, pp. 47-48) The Petitioner did not request such a joint hearing on its application, as provided in Section 380.06, F.S. On April 9, 1987, the Orange County Development Review Committee (DRC) conducted a technical review of the proposed development. Representatives of the Lakepointe project were present and participated. The DRC is comprised of Orange County staff who review a project for compliance with Orange County regulations and make recommendations to the County's Planning and Zoning Commission. On the basis of the staff's technical review, such recommendations will ameliorate the impacts of the proposed development. (APS, p. 8) The approved Minutes of the April 9, 1987, DRC meeting reflect a staff recommendation of approval of the Lakepointe project with the following recommended modifications: Extending the 50-foot wide greenbelt area around the entire northerly perimeter of the PD and ending at the Department of Transportation drainage easement (Parcels 5 and 6). Prohibiting free-standing commercial uses on Parcels 3 and 4, and requiring the commercial uses to be located internally within office buildings. Limiting building height in Parcels 3, 4, and 6 to three stories (forty feet). Limiting building height on Parcel 5 within 100 feet of adjacent property zoned residential to one story and a maximum of 35 feet, while recommending a 4-story, 50-foot maximum height on the balance of Parcel 5. The approved DRC Minutes of April 9, 1987 recommended approval of 805,000 square feet of office uses, plus an additional 18,000 square feet of commercial uses (internalized within offices), and 150 multi-family dwelling units at the densities requested by Battaglia (10 du/a on Parcel 2 and 8.3 du/a on Parcel 6. (APS, pp. 8-9). On August 10, 1987, a joint work session was conducted between the Orange County Board of County Commissioners and the Maitland City Council. Representatives from the Petitioner and other citizens were present, but their participation was limited to occasional unsolicited comments. The purpose of the work session was to consider proposals for a joint agreement that would allow municipal jurisdiction over adjacent unincorporated areas for planning purposes pursuant to section 163.3171, F.S. As reflected in the litigation with regard to the Battaglia property, relations between the local governments were strained. The Lakepointe project was specifically discussed, and the group of council and board members appeared to reach some consensus on certain restrictions on the development: that any development on the property could not exceed 35 feet in height. that the attached multi-family units in parcel 6 be replaced with single family detached units at a density of 7.5 units per acre; and that all residential uses be deleted from the south parcel and replaced with residential scale offices. (Joint Exhibit #17, pp. 17, 23, 27, 28-30, 34-35). Even though votes were taken at the work session, the outcome was not binding on the board. Resolution of the various issues amounted to policy determinations which provide guidance to the staff. Nonetheless, the session concluded with some self-congratulation that the two bodies had been able to sit down amicably and work out tough problems. (Joint Exhibit #17, pp. 62-63). Edward Williams, Orange County's Planning Director and a member of the DRC, sent a memo to the DRC on November 11, 1987 outlining the conditions agreed at the August 10, 1987 work session and stating that certain conditions approved by the DRC should be modified and other conditions added. These included: No free standing commercial and the internal commercial use limited to 18,000 sq. ft. would not exceed 50% of any building. Maximum heights would be 35 feet. The residential uses north of Maitland Boulevard would be single family detached, at 7.5 du/a. Multi-family residential uses south of Maitland Boulevard would be eliminated and redesignated as offices. Building coverage would be no more than 10,000 sq. ft. per acre. The 33.3 acre office tract south of Maitland Boulevard would be limited to 333,000 sq. ft. and the 42.3 acre office tract on the north would be limited to 423,000 square feet. (Battaglia Exhibit #9) The DRC adopted Williams' changes. The Orange County Planning and Zoning Commission (P&ZC), an advisory body to the Board and appointed by the Board, considered the Lakepointe comprehensive plan land use map amendment and the DRI/PD application at two consecutive public hearings on November 19, 1987. The P&ZC accepted the 7.5 du/a single family residence restriction for Parcel 6, but recommended deleting the "detached" requirement, in favor of giving the developer additional flexibility. It also recommended computing the 10,000 square feet per acre office use on a gross basis both on the north and south parcels, rather than on a gross basis on the south and net on the north as the county staff had done. The change in computation resulted in an additional 39,000 square feet for offices on the north parcel when the 2.8 acre green belt and 1.1 acre entrance road are included. Other than these, the conditions urged by Edward Williams from the joint work session were adopted. (Joint Exhibit #18, pp. 106-109; Joint Exhibit #19) The Orange County Board of County Commissioners considered the Lakepointe comprehensive plan amendment, DRI application and PD zoning application at duly noticed and advertised public hearings on December 14, 1987. Representatives of the Petitioner and members of the public were present and participated. (Joint Exhibits #22 and 23; APS, p.4) Accepting the staff recommendations, but deleting the P&ZC recommended changes, the Board adopted an ordinance amending the Orange County Comprehensive Plan to accommodate the land uses associated with the Lakepointe project. It also approved the project as a DRI, and approved rezoning the north portion of the property from R-1AA to PD. (Joint Exhibits #2, 22 and 23) On February 22, 1988, Orange County issued a Development Order, pursuant to Section 380.06(14), F.S. memorializing the conditions of development approved by the Orange County Board of County Commissioners on December 14, 1987, for the Lakepointe DRI/PD. (Joint Exhibit #3) On June 12, 1989, the City of Maitland issued a Development Order pursuant to Section 380.06(14), F.S. for that portion of the Lakepointe project located entirely within the City of Maitland. This order relates only to the access road at the northeast of the project. (Joint Exhibit #4) The Orange County Board of County Commissioners and the Maitland City Council formally adopted an interlocal agreement at a duly noticed and advertised joint public hearing held on July 10, 1989. (APS, p. 10) The Development Order The Development Order for Lakepointe DRI consists of approximately 16 pages, plus the legal descriptions of the tracts. Although the order references a 120.3 acre project, the parties have stipulated, and the evidence reflects, that the project is 120.6 acres. (APS, p. 5) The preamble to the conditions of approval includes this language, which the County argues controls the ultimate disposition of this appeal: * * * * NOW, THEREFORE, BE IT HEREBY ORDERED by the County Commission of Orange County, Florida, that, subject to each of the following terms and conditions <<(each of which the County Commission found was necessary for inclusion for the County Commission to approve the Lakepointe DRI/PD project, and none of which could have been omitted or modified if the Developer expected the County Commission to approve the Lakepointe DRI/PD project),>> the Lakepointe Development of Regional Impact is APPROVED pursuant to Section 380.06, Florida Statutes (Supp. 1986), and the Land Use Plan for the zoning change on the northern portion of the Property from R-1AA to PD is approved: * * * (Joint Exhibit #3, p.3, emphasis added) * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The order adopts the conditions of approval recommended by the ECFRPC, including the conditions regarding traffic impacts and monitoring/modeling. (Joint Exhibit #3, pp. 9-11) The order requires development in accordance with the DRI/ADA, and supplemental information, except as modified by the specific conditions of approval. (Joint Exhibit #3, p. 7) The relevant specific conditions (those contested in this proceeding) provide as follows: * * * II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. * * * * 2. The greenbelt (minimum 50-feet wide) shall be continued around the northerly perimeter of the PD, <<particularly along the northwestern boundary of Parcel 6 extending to Lake Charity and ending at the Department of Transportation ("D.O.T.") drainage right-of-way area.>> The greenbelt shall be located outside of designated conservation areas. A minimum 25-foot wide landscape buffer shall be provided around the balance of the perimeter of the PD (<<i.e.>> southerly perimeter of the PD situated immediately north of Maitland Boulevard). A reduction in the 25-foot buffer along Maitland Boulevard may be considered by Orange County staff at the development plan submittal stage (<<e.g.>>, reduced buffer width with wall screening). Specific landscape material for the entire buffer area shall be provided on the development plan submittal for County approval. 3. <<Free-standing commercial structure(s) shall be prohibited.>> The accessory or support commercial shall be located within the office buildings(s). The commercial uses are intended to serve the employees of the office development. The total professional office square footage shall include the square footage for any commercial uses, and the commercial use shall not exceed 18,000 square feet and no more than fifty percent (50%) for two (2)-story structures. * * * 7. <<Maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements.>> Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum). * * * 14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. <<This residential development shall be low-medium density with a cap of 7.5 single family detached units per acre.>> (Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.) * * * <<Building coverage for office on the northern portion of the Property shall not be more than 10,000 square feet per net acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the 42.3 acre tract located north of Maitland Boulevard shall be limited to 481,000 square feet, for an aggregate total of 756,000 square feet.>> * * * (Joint Exhibit #3, pp. 3-7, emphasis added.) Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The Conditions in Controversy Buffering the Northern Perimeter In its application Petitioner proposes a height of 55 feet for office buildings on the north parcel and a 50 foot uplands buffer landward of all conservation areas adjoining the offices on the northern boundary of parcel 5. The DRC reduced the height to 50 feet, for parcel 5, except within 100 feet of property zoned residential. Along the northern perimeter of parcel 6 (the residential use) Petitioner proposed a 25-foot natural buffer. The DRC originally had no problem with the residential density, but recommended extending the 50-foot upland buffer proposed for Parcel 5 around the northern perimeter of parcel 6. Petitioner contends that the 50 foot buffer is unnecessary if the office height and residential density are reduced. Buffers are required on any developer's land. In both Orange County and the City of Maitland, buffers are negotiated in PD's, based on existing factors and circumstances. The lakes along the northern perimeter of the property are between 1,000 to 2,000 feet across and are not effective light or noise buffers. The residential parcel (parcel 6) is separated from the existing subdivision by only a drainage canal and low vegetation. The 50-foot buffer between parcel 6 and Druid Hills (the existing subdivision) is not unusual. Buffer widths in PD's in the county range between 5 and 100 feet. In another case, the County required Buckingham at Lakeville to include a 50-foot wide buffer between residential uses of differing densities. In a case cited by Petitioner, Fairbanks Office Building, on Fairbanks Avenue in unincorporated Orange County, the developer, was required to provide only a 10-foot landscape buffer with a 6-foot wall, separating 46 foot high offices from an existing residential development. The wall, however, and the fact that the office park developer negotiated with the adjacent property owner to provide water and sewer service made that case unique and distinguishable from Lakepointe. (Transcript, p. 1132) No 50-foot buffer is required by the county for the southern boundary of the south parcel as the office uses on that parcel are separated from the single family residences by Sandspur Road and by Petitioner's proposed wall, berming and landscaping. Different requirements for the north and south perimeter are justified and appropriate. Prohibition of Free-Standing Commercial Structures Although there are well-established single family neighborhoods north and south of Maitland Boulevard between I-4 and Maitland Avenue (U.S. 17-92), those neighborhoods are separated from the Maitland Boulevard corridor by the lakes on the north and Sandspur Road on the south. The corridor itself is not residential in character. No single family residential subdivisions directly access Maitland Boulevard. From the beginning of the County's review of the project, however, the free-standing commercial uses proposed by the developer have been eliminated as inconsistent with the character of the portion of Maitland Boulevard east of I-4 and west of Maitland Avenue. The planning and zoning staff have sought to prevent strip commercial development of the type that has proliferated along other principal arterial roads, notably State Road 436, U.S. 17-92 and State Road 434. Free-standing commercial on parcels 3 and 4 would be the only uses of that type in this area of the Maitland Boulevard corridor, setting a precedent for other similar uses on adjacent properties, a trend vigorously opposed by the residential groups and by the City and County officials and their staff. Appropriate locations for free-standing commercial in the vicinity would be at U.S. 17-92, in downtown Maitland or west of I-4 (designated as one of the county's five "activity centers" in the GMP to concentrate high intensity uses and avoid encroachment into residential areas). Relevant policies from Orange County's GMP provide, as follows: COMMERCIAL POLICIES (Policies outlined in Sections 1.0 through 4.0 are applicable to all types of commercial activities within Orange County) GENERAL The County will encourage the concentration of expanded commercial facilities in centers suitably located to provide their market areas with accessibility and to discourage inappropriate roadway strip commercial uses. Uses generally considered as a suitable replacement for strip commercial activities include all types of residential uses, institutional development, or recreation areas and green belts. * * * 11.0 OFFICES AND PROFESSIONAL COMMERCIAL POLICIES Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks. * * * 11.1.3 Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses. * * * (Joint Exhibit #9, pp VI-21, VI-30) Prohibiting free-standing commercial, but permitting commercial corollary uses as described above, within the office buildings, appropriately effectuates those policies. The County has required other mixed-use PD's besides Lakepointe to incorporate commercial within office buildings. For example, since the early 1960's and '70s, planning studies for the area around the University of Central Florida have discouraged free-standing commercial uses to maintain a campus-like atmosphere and to avoid adverse impacts on the University. Some unspecified commercial use has been permitted in recent years. (Transcript, pp 397-398) Where free-standing commercial developments are permitted in DRI/PDs, the projects are generally much larger than Lakepointe (for example, Southchase with 3,000 acres and Lake Nona with approximately 7,000 acres), or are in an activity center (for example, Maitland Summit). (Transcript, pp. 1188, 1191) In approving or rejecting free-standing commercial uses the County considers each location as it relates to the road network, the relationship to other uses, compatibility with surrounding land uses in the area and the character of the area. (Transcript, p. 398) Maximum Height & "Residential Scale and Character" A 35-foot height limit for office buildings is mandated by the County's "straight" Professional-Office (P-O) zoning district requirement. (Joint Exhibit #11, Article XXXI, Section 6, paragraph 7) A special exception is permitted to increase the height, after consideration of the character of the neighborhood, the effect of the proposed use on the value of surrounding lands, and the area of the site. (Id., Section 5) The project in issue is a Planned Development (PD), however, allowing mixed uses and a greater degree of flexibility than available under straight zoning. The developer is required to submit a plan for approval, which plan identifies, among other details, the proposed building heights. (Joint Exhibit #11, Article XXXIX, Sections 1 and 6) For guidance, the County and developer look to performance standards in the straight zoning, although these are clearly not binding in PD zoning. The Petitioner voluntarily committed to a 35-foot height restriction on the south portion of the property. It also committed to a "residential scale and character" office development on the 28.3 acres that comprise Parcel 1 on the south. As part of the rezoning process the Petitioner showed photographs of residential scale office developments. In making those commitments, Petitioner considered the narrow depth of the south parcel and its proximity to residential uses (across Sandspur Road). It proposed 55-foot heights and a "campus-style" development for the offices on the larger northern parcels, to allow more open space, more landscaping and an opportunity for flexible design. Orange County's codes do not define the term "residential scale and character" and no guidelines or standards have been adopted to apply meaning to the term. Nor does the County have an architectural review board charged with making design decisions on development proposals. It is plain that both parties have some notion of what it means, as both have used the term throughout the plan approval process. For example, Orange County's Planning Director, Edward Williams, when asked by the Board for a definition at its final public hearing, suggested that "residential scale" projects include a roof type and architectural features compatible with what is found in a "typical residential area". Size, for example, a limitation of 5,000 square feet per building, is not necessarily appropriate in all residential scale projects. (Joint Exhibit #22, p. 75) "Residential scale and character" could include one to five very large buildings on the north parcel rather than multiple small buildings as envisioned on the south, according to Mr. Williams. (Transcript, p. 475) As recognized by the Petitioner, "residential scale and character" buildings are appropriate adjacent to existing residential areas. Petitioner also acknowledges that a 35-foot height requirement is appropriate on parcels abutting or close to existing residential areas. Parcel 5, however, is different. Its 35 acres is the largest, and by far, the deepest parcel in the plan. It is buffered from existing residential areas by the greenbelt, by the lakes, and by the proposed residential use on parcel 6, "Pine Island". The height restriction of 35 feet does not make sense in that parcel, and inhibits the creative use of open or green space and landscaping. In his presentation to the local government officials at the August 10, 1987 work session, Mr. Williams articulated County planning policy in the past as trying to "...go up with developments rather than covering the entire site with impervious surfaces. We prefer to have more open space." (Joint exhibit #17, p. 10) Petitioner seeks to target a different market for the offices on the south parcel than for those on Parcel 5 on the north. On the south, there are proposed approximately 18 office buildings averaging 15,000 square feet in size. On the north parcel, the proposal suggests larger buildings, with more open space. If the height is unreasonably limited, the open space is sacrificed. "Residential Scale and Character" is not limited to single-family residential scale, but can also be multifamily. A large building can be made to look residential. Several large office buildings on the north parcel can be designed to have a "campus" feel with a quadrangle or semi-circle configuration. Size alone does not create or negate "residential scale and character". 7.5 Single Family Detached Units Per Acre Petitioner has proposed attached, multi-family units at a density of 8.3 du/acre for the unique, heavily wooded parcel 6. This density is at the lower end of the "medium density" range, "over 7.5 to, and including 14.9 Du/acre" described in the County's GMP. (Joint Exhibit #9, p. VI-8.) The GMP promotes the use of this density to buffer low and low-medium density development from more intensive uses. The plan also encourages medium density residential subdivisions to "provide recreation and open space areas through the clustering of dwelling units". (Joint Exhibit #9, p. VI-11) The housing element of the GMP states these relevant goals: Socio-Economic Encourage development patterns which do not physically isolate low and moderate income and special needs groups from other sectors of society, especially in low density areas of the County. Recognize the need for and encourage the development of affordable housing for service employees working in Orange County. Examine the feasibility of creating new financial incentives for the development of low cost, affordable housing in Orange County. (Joint Exhibit #9, p. V-3) Petitioner's proposal is consistent with these policies. It seeks to buffer the low-density existing residential areas from the more intensive office uses in Lakepointe. It also seeks to preserve as much of the vegetation as possible, yet derive a benefit from the use of this parcel. It recognizes that residences accessible only through an office park may have a limited market. Its proposal is consistent with the County's goal of providing "affordable housing", and provides a convenient residential choice for persons who may be employed in the office park. The residential neighbors and City of Maitland sought the lower density and detached single family units precisely to avoid lower-income residents and more affordable units. (transcript, pp. 955, 958-59, 1003-04, 1046-47) In order to justify its accommodation of the interests of the local citizens, the County argues that a residential project, perhaps a condominium, could be designed with detached units, clustered together, or with zero lot lines. Visually, there is little difference between the attached units proposed by Petitioner and the County's suggestions for creative design. The latter suggestions do not satisfy the neighbors' desire to have units which are similar to their own, but they impose an unreasonable restriction on the Petitioner's flexibility. The Petitioner's proposal is consistent with Lake Faith Villas, an attached multifamily residential project to the immediate east of Petitioner's property on Maitland Boulevard, within the City of Maitland. Lake Faith Villas has a density of 10 du/acre. Office use limited to 10,000 square feet per acre Although the County's PD regulations do not specifically establish a 10,000 square foot per acre limit for offices, they allow the County to set reasonable, maximum amounts for different projects. The 10,000 square foot per acre limitation was derived from what Edward Williams claims is an average figure for professional office parcels in the county, and is more than the density sought and obtained by Petitioner for the south parcel when Sandspur Grove PD was approved. Other evidence suggests that the average square foot density for PO developments and PD developments in Orange County is closer to 12,000 (Transcript, p. 681-682), but the restriction is not so far off as to be patently unreasonable, considering Petitioner's plans for "residential scale and character" and "campus-style" projects. Computation of the total square feet for office uses was derived on a gross acreage basis on the south and a net basis on the north, ostensibly because the County was unable to ascertain from the development plan how much of the greenbelt and road should be allocated to parcel 6. (Transcript, pp. 436- 438) It is possible to compute gross acreage on the north property, using the parcels identified on Petitioner's master development plan (Joint Exhibit #7) [Appendix B] provided that the acreage allocated to parcel 6 is limited to twelve acres. It is obvious that this is what the developer intended when it derived 100 dwelling units at 8.3 du/acre, and 12 acres. (8.3 x 12 = 99.6) It is thus possible to be consistent and compute the office density allowance for both the north and south property at a gross density, just as the P&ZC did at its November 19, 1987, meeting. This results in a total of 795,000 square feet of offices, not 756,000, as reflected in the development order. As the Petitioner has agreed to limit the south property to 275,000 square feet, this leaves a total of 520,000 square feet for the north property. The County concedes that paragraph 19 of the Development Order, limiting building coverage for offices to 10,000 square feet per acre, does not preclude larger than 10,000 square foot buildings. (Proposed Finding of Fact, paragraph 115) That requirement should be amended in the interest of clarity, so long as the totals permitted for the north and south parcels are included in the order. This sentence, as it now reads, makes the condition internally inconsistent, as the second sentence permits 481,000 square feet on the 42.3 acre tract located north of Maitland Boulevard, more than 10,000 square feet per acre. (See Finding #41, paragraph 19, p. 21, of this recommended order) The Balancing Act: Weighing the Policies The process of review and approval of the Lakepointe project was one of compromise and accommodation. The Board and its staff considered comments from the applicant, the applicant's consultants, the City, the Regional Planning Council, homeowner's groups from both the County and City, and the City of Altamonte Springs. The County did not have a joint agreement with the City of Maitland, and its agreements with regard to conditions for the project were informal and non- binding. Nonetheless, the County considered the level of participation a necessary and appropriate exercise of intergovernmental coordination, as indeed it was. The applicant also exhibited willingness to accede to compromises throughout the process but never abandoned its original plan as it relates to the issues raised in this proceeding. It steadfastly defended the uses and densities it proposed, and in the end, agreed only to the deletion of multifamily units on the south parcel and transfer of that acreage to office use. This was a small DRI project, but a significant one to the owners and to the neighbors. It lacks the vast array of issues usually present in DRI's. There is little or no environmental impact and any traffic issues were resolved substantially though the ECFRPC review, even as to the proposed free-standing commercial uses and the densities originally proposed by the applicant. The single overriding issue here is land use. According to Planning Director, Edward Williams, the Orange County GMP includes some 900 separate policies to guide its decisions. These sometimes divergent policies must be balanced and weighed. (Transcript, p. 382) In this regard, the ultimate decision by the County was skewed. Some of the conditions it imposed, in the legitimate interest of preserving the character of surrounding neighborhoods, unduly ignored other equally valid policy considerations. The Developmental Framework Section of the County's Growth Management Plan lists this as its first goal: 1. To promote the orderly economic development of Orange County. Orderly economic development may be defined as maximizing the use of public dollar investments in facilities and services, such as water and wastewater systems, roads, schools, transit, law enforcement, fire protection, and parks. * * * (Joint Exhibit #9, p. II-13) As noted by James A. Sellen, one of Petitioner's two expert witnesses on the topics of comprehensive planning and zoning, the development proposed is appropriate because of the substantial public investment in the controlled access road and over-sized water and sewer infrastructure. Maintenance of land use as low density single family is contrary to that investment. (Transcript, p. 233-34) Commercial Policy 1.0.11 of the Future Land Use Element provides, in pertinent part: 1.0.11 The future conversion of existing residential land uses to non-residential may be permitted under the following conditions: When the general land use character of an area has undergone significant change and will lend itself to more intensive uses; Adequate access to major streets and highways network is provided, whenever possible common access drive shall be used; The carrying capacity on the abutting road segment exceeds 8,000 average daily trips (ADT); The proposed site for conversion has close proximity to a street intersection; All other applicable policies detailed for commercial or office land use in the Future Land Use Element of the Growth Management Policy are met; and, When sufficient area is available to accommodate the conversion, together with the needed improvements including parking, stormwater retention and vehicular turnaround movements. (Joint Exhibit #9, p. VI-22) The changes in the area along Maitland Boulevard support the change in land use from the currently designated 4.4 residential du/acre to the mixed use proposed by Petitioner. The Future Land Use Element's Commercial Policy 11.0, provides: OFFICES AND PROFESSIONAL COMMERCIAL POLICIES Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks. Location and Compatibility Large office uses should generally locate adjacent to arterial thoroughfares that connect to an interstate or expressway in order to lend accessibility to a wider market area. Smaller office uses should generally utilize principal or minor arterials for site access and location. Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses. Office uses are compatible with adjacent community and regional commercial shopping areas and may provide a buffer between these shopping areas and nearby residential areas. Professional service office parks should locate on major collectors and minor arterials. (Joint Exhibit #9, p. VI-30) As cited in Orange County Ordinance No. 88-3, amending the Future Land Use Map relating to the Lakepointe DRI, the proposed new uses are consistent with these policies of the Growth Management Plan. (Joint Exhibit #2) Concern for the existing residential uses is supported by the following residential policies within the Future Land Use Element: LOCATION AND COMPATIBILITY General Residential areas shall be buffered from major transportation arteries, and from commercial and industrial land uses which are not compatible with residential development. New commercial development will be discouraged where there would be a detrimental impact on existing residential properties due to excessive noise, pollution, traffic congestion, unsafe highway conditions or where an unacceptable physical intrusion into residential neighborhoods would be created. * * * 3.1.3 Land development controls should ensure that future development which may allow a greater intensity of use is compatible with existing development. (Joint Exhibit #9, p. VI-9) In summary, the project, as proposed by Petitioner is substantially consistent with the County's Growth Management Plan, but requires some of the modifications imposed by the County as conditions of approval. Those modifications include the deletion of free-standing commercial uses; the enhanced buffer zone along the north parcels; reduction in height of all but the offices to be located on the large parcel 5, north of Maitland Boulevard; and offices that are designed "residential in scale and character". Other conditions imposed by the County, but contested by Petitioner, i.e., restrictions on the residential development on Pine Island and the height limitations for offices on Parcel 5, violate significant policies cited above without reasonably advancing the goal of protecting the existing character of the surrounding neighborhoods, and should be deleted. The computation of office use density should be amended to provide for gross densities for the entire property.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, granting Petitioner's appeal, in part, by amending the Development Order for Lakepointe DRI, as follows: [Deleted text of the order is struck through, and new language is underlined.] * * * * 7. The proposed development of the Lakepointe DRI/PD consists of the following: Total Acreage: Approximately [[120.3]] <<120.6>> Acres * * * 12. This Development Order also constitutes the development order approving the use of the Property pursuant to the Land Use Plan for PD for [[Low Medium]] <<Medium>> Density Residential, and Office/Commercial, as more particularly detailed in paragraph 7 of Part I of this Development Order. * * * II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION [WITH MODIFICATIONS BY THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.] (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. [Bracketed portion denotes new language, as the original is underlined.] 1. Development shall conform to each of the Orange County Commission conditions of approval, and to the Land Use Plan dated "Received April 3, 1986, Public Works and Development." Development based upon this approval shall comply with all other applicable federal, state, and county laws, ordinances and regulations which are incorporated herein by reference, except to the extent they are expressly waived or modified by these conditions or by formal action of Orange County. 7. <<Except for office buildings in Parcel 6>>, maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements. <<Maximum height of the office buildings in Parcel 5 shall be fifty (50) feet, and their design shall be residential in character.>> Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum). * * * 14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. This residential development shall be [[low medium]] <<Medium>> density with a cap of [[7.5 single family detached]] <<8.3>> units per acre. [[(Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.)]] * * * 19. Building coverage for office[s] [[on the northern portion of the Property]] shall not be more than 10,000 square feet per [[net]] <<gross>> acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the [[42.3 acre]] tract located north of Maitland Boulevard shall be limited to [[481,000]] <<520,000>> square feet, for an aggregate total of [[756,000]] <<795,000>> square feet. Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Ordinance No. 88-3, amending the Future Land Use Policy Guide Map related to the Lakepoint DRI, should be amended to reflect the above. DONE AND RECOMMENDED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraphs 1 and 4. and 3. Adopted in paragraph 8. Rejected as unnecessary. Adopted in paragraphs 7 and 11. Adopted in paragraph 10. Adopted in paragraph 7. Adopted in paragraph 11. Rejected as unnecessary. Adopted in paragraphs 4 and 16. Rejected as unnecessary. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 21. Adopted in paragraph 14, otherwise rejected as unnecessary. and 17. Adopted in paragraph 14. Rejected as contrary to the weight of evidence, as to "best use", except in a very general sense; otherwise rejected as unnecessary. Adopted in paragraph 22. Rejected as unnecessary. Adopted in paragraph 22. Rejected as unnecessary. Adopted in paragraph 23. and 25. Rejected as unnecessary. Adopted in paragraph 24. Adopted in paragraph 26. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 27. and 32. Adopted in paragraph 30. 33. and 34. Adopted in summary in paragraph 33. Rejected as contrary to the evidence and unnecessary. Rejected as unnecessary. Rejected as unnecessary and unsupported by competent credible evidence (as to how limited access points would prevent strip commercial development. Such development could be supported by internal service roads.) - 45. Rejected as unnecessary. Traffic was not the reason the commercial use was deleted. 46. - 49. Adopted in summary in paragraph 65. 50. and 51. Rejected as unnecessary. Adopted in paragraph 55. Adopted in paragraph 54. Adopted by implication in paragraph 57. Rejected as unnecessary and contrary to the weight of evidence, which evidence was that "residential in scale and character" does not preclude large buildings. and 57. Rejected as unnecessary. Rejected as contrary to the evidence, which established that "campus style" office buildings are not inconsistent with "residential scale and character". Adopted in paragraph 53. Rejected as unnecessary. Adopted in paragraph 44. and 63. Adopted in paragraph 57. Adopted in paragraph 60. Adopted in paragraph 42. Rejected as cumulative and unnecessary. Adopted in paragraph 62. Rejected as cumulative and unnecessary. and 70. Adopted in paragraph 61. Rejected as contrary to the weight of evidence (as to the appropriateness of the 25-foot buffer). Rejected as unnecessary. Respondent and Intervenor's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraphs 4 and 6. - 10. Adopted in paragraph 4. 11. and 12. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 12. Adopted in paragraph 7. and 17. Adopted in paragraph 10. Adopted in paragraph 7. - 21. Adopted in summary in paragraph 11. 22. - 29. Rejected as unnecessary. Rejected as contrary to the weight of evidence. - 32. Rejected as unnecessary. Adopted in paragraph 13. and 35. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 54. Rejected as unnecessary. 39. Adopted in paragraph 54. 40. - 43. Rejected as unnecessary. 44. Adopted in paragraph 14. 45. Rejected as unnecessary. 46. and 47. Adopted in paragraph 15. 48. Adopted in paragraph 23. 49. Adopted in paragraph 24. 50. and 51. Adopted in paragraph 25. 52. and 53. Adopted in paragraph 26. 54. Rejected as unnecessary. 55. Adopted in paragraph 27. 56. Rejected as unnecessary. Adopted in paragraph 29. - 60. Adopted in paragraph 27. Adopted in paragraph 30. Rejected as unnecessary. Rejected as unnecessary. Adopted in paragraph 30. - 68. Adopted in paragraph 31. Adopted in substance in paragraph 30. - 72. Rejected as unnecessary or immaterial. 73. and 74. Adopted in paragraph 32, in part, otherwise rejected as unnecessary or immaterial. 75. and 76. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 37. Adopted in paragraph 35. Adopted in paragraph 24. - 83. Adopted in paragraph 41. Adopted in paragraph 43. Adopted in paragraph 43. Adopted in paragraph 44. Adopted in paragraph 45. and 89. Rejected as unnecessary. Adopted in paragraph 41. Adopted in substance in paragraph 47. - 94. Rejected as unnecessary substance or immaterial. Adopted in paragraph 47. Rejected as unnecessary. Adopted in paragraph 48. Adopted in paragraph 51. Rejected as immaterial. Adopted in paragraph 47. Adopted in paragraph 41. Adopted in paragraph 52. Adopted in paragraph 53. - 106. Rejected as unnecessary or immaterial. Adopted in paragraph 41. Rejected as contrary to the evidence (as to the similarly situated nature of the 2 parcels). Adopted in paragraph 55. Adopted in paragraph 54. Adopted in paragraph 53. Adopted in substance in paragraph 54. Adopted in paragraph 55. Adopted in paragraph 59. 115. Adopted in paragraph 67. 116. - 122. Rejected as unnecessary or immaterial. 123. Adopted in paragraph 41. 124. Rejected as unnecessary. 125. Adopted in paragraph 65. 126. - 128. Rejected as unnecessary. 129. and 130. Adopted in paragraph 66. 131. Adopted in paragraph 41. 132. Adopted in paragraph 16. 133. Rejected as contrary to the weight of evidence (as to being a "reasonable transition"). 134. and 135. Rejected as unnecessary. Adopted in substance in paragraph 63. and 138. Adopted in substance in paragraph 61. The higher density will even better promote the affordable and housing policy. 139. Rejected as immaterial. 140. Adopted in paragraph 68. 141. - 150. Rejected as immaterial or unnecessary. COPIES FURNISHED: Miranda F. Fitzgerald, Esquire Karen M. Chastain, Esquire Maguire, Voorhis & Wells, P.A. 2 South Orange Avenue Post Office Box 633 Orlando, FL 32802 Herbert A. Langston, Jr., Esquire 111 South Maitland Avenue Suite 200 Maitland, FL 32751 Joel Prinsell, Esquire Assistant County Attorney Orange County Legal Department Post Office Box 1393 Orlando, FL 32802-1392 Douglas M. Cook, Director Land and Water Adjudicatory Commission Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact Based upon all of the evidence, including the stipulation by the parties, the following findings of fact are determined: Background The parties Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan which is the subject of the dispute. Petitioners, Dick and Mary McGinley, are residents of Marion County. Since 1956 they have owned a rectangle-shaped parcel of property consisting of approximately 1,280 acres. The parcel is situated on State Road 484 two and one-half miles west of Interstate 75 between Belleview and Dunnellon and ten miles south-southwest of the City of Ocala. Approximately 318.57 acres lie north of State Road 484 while the remaining 961.38 acres lie south of that roadway. The County's plan amendment affects that part of petitioners' property which lies south of State Road 484. During the adoptive phase of the amendment, petitioners submitted written comments in opposition to the reclassification of their property. As such, they are affected persons within the meaning of the law and have standing to bring this action. The nature of the dispute The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County and DCA entered into a stipulated settlement agreement in March 1993, which required the County to adopt various remedial amendments. The first set of remedial amendments adopted by the County were determined to be not in compliance. After a second stipulated settlement agreement and addendum were entered into by the same parties, the County adopted further remedial amendments on April 7, 1994, one of which changed the land use designation on a portion of petitioners' property. A cumulative notice of intent to find the plan and remedial amendments in compliance was then issued by the DCA on May 30, 1994. On July 27, 1994, petitioners timely filed an amended petition for administrative hearing in which they contended the plan amendment which affected their property was not in compliance. In their complaint, petitioners alleged that the "future land use (of their property) was not based on accurate data regarding the area as required by Florida law." As further clarified by petitioners in the prehearing stipulation, they allege that the amendment is not based on adequate data and analysis, and it is not consistent with, or does not further the goals of, applicable statutes and rules. As to the latter allegation, petitioners have clarified this to mean that, as to their property, they do not agree that the plan amendment meets its stated goal of discouraging urban sprawl. The Plan Amendment As noted earlier, the County adopted its comprehensive plan in January 1992. Prior to the adoption of the plan, petitioners' property had been zoned A-1, agricultural district, since at least 1973. Under the January 1992 plan, petitioners' property was placed in an urban expansion area with a low density residential land use which allowed one dwelling unit per acre. Because of an objection by the DCA that the plan allocated too much land to the urban expansion area, the County agreed to adopt remedial amendments to cure that deficiency. In August 1993, the County adopted a remedial amendment to the plan which, among other things, continued an urban expansion designation for petitioners' property. Again, however, the DCA found the amendment not to be in compliance on the ground the plan still allocated too much land to urban uses. To satisfy this continuing concern, and in accordance with a settlement agreement with the DCA, the County agreed to reduce the amount of land allocated to urban uses by reclassifying various tracts of land in the County from urban expansion to urban reserve. In its remedial amendments adopted on April 7, 1994, among other things, the County proposed to change the land use designation on that part of petitioners' property (961.38 acres) lying south of State 484 from urban expansion area to urban reserve category with a rural land use designation, which allows one residential unit per ten acres, or less than 100 units. In contrast, that portion of petitioners' property lying north of State Road 484 (318.57 acres) will continue to remain in the urban expansion area with a medium density residential land use designation, which allows for four dwelling units per acre, or almost 1,400 units. Petitioners' Concerns Petitioners allege that the plan amendment is not based on adequate data and analysis and it fails to achieve its stated objective of preventing urban sprawl. In addition, at hearing petitioners suggested that the reclassification, if ultimately approved, constituted an unlawful taking of their property in violation of the United States Constitution. As to this claim, jurisdiction to adjudicate the same lies within that of a circuit court rather than with the undersigned, and in any event, it cannot be raised until after all administrative remedies, including this one, have been pursued. Petitioners' property is located in the middle of the northern half of a large, vested Development of Regional Impact (DRI) known as Marion Oaks, a project begun in the early 1970's. Their land is surrounded on all sides by mainly residential lots, many of which are vacant, and almost two dozen streets originating within the project end at their property line. Marion Oaks now has two golf courses, a school, library, fire station, bank and utilities. Thus, it contains a mixture of residential, commercial, recreational and other uses. As of the time of hearing, Marion Oaks had around 7,800 residents. Even though 78 percent of Marion Oaks' 24,564 residential lots have been sold, less than 10 percent of the lots have been developed. Therefore, most of the land in the project is vacant, and at its present rate of construction of around 130 residential units per year, Marion Oaks will not be built out for around 190 years. When the amendment was adopted, there was virtually no development in the western part of the DRI, the northern part was "sparsely" developed, a "little more" development was present in the southern part, and the bulk of the development was in the eastern part of the project. Indeed, the only commercial development, albeit very limited in nature, found in the project is approximately one and one-half miles east of petitioners' property. Therefore, it is fair to chararacterize Marion Oaks in its totality as being non-urban in character. Although petitioners have never applied for a development permit, they desire to develop their property by constructing a small shopping center consisting of a bank and supermarket which will serve as an anchor for other "neighborhood" type businesses. In addition, they plan to construct a golf course, perhaps an airport fly-in center, and more than a thousand "affordable- type" housing units to blend in with the other housing in Marion Oaks. With the dual land use designation on their property, however, petitioners point out that this type of development is not feasible. This was confirmed at hearing by their engineer. Petitioners first claim that the plan amendment is not consistent with the County's goal of discouraging scattered development and sprawl. They reason that, since the large Marion Oaks DRI surrounds their parcel of property, urban development is already present. It is true, as petitioners claim, that their property has road accessibility (State Road 484), the availability of centralized utilities and fire protection, and soil suited for development, all of which are necessary for urban development. Even so, Marion Oaks is largely undeveloped at this time, it can be characterized as non-urban, and at present growth rates it will not be built out for 190 years. Given these considerations, it cannot be said to the exclusion of fair debate that the plan is not consistent with, or does not further, the plan's goal of discouraging urban sprawl. Petitioners further contend that they were unfairly treated in this process. They point to another tract of land consisting of around 400 acres that was reclassified urban expansion even though it lies south of Lake Weir in southeastern Marion County in a predominately undeveloped area. Even if this is true, however, the classification of one isolated tract of land in this manner would not mean that petitioners' property would also qualify for the urban expansion category. In addition, petitioners contend that to allow them to develop their property at a medium residential density would be nothing more than infilling the center of an already developed tract of land, namely, the Marion Oaks DRI. Urban infill is defined by statute [s. 163.3164(27)] as follows: the development of vacant parcels of otherwise built-up areas where public facilities such as sewer systems, roads, schools, and recrea- tion areas are already in place and the aver- age residential density is at least five dwelling units per acre, the average non- residential intensity is at least a floor area ratio of 1.0 and vacant, developable land does not constitute more than 10 percent of the area. Since petitioners' property is not in an otherwise "built-up" area having a density of five units per acre as required by law, a designation or development of petitioners' property at urban densities would not be consistent with the concept of infilling. Finally, petitioners contend that the County's plan amendment is not supported by adequate data and analysis with respect to the County's imposition of a dual land use designation on their property. As to this contention, the County established that, prior to adopting the amendment, it performed a detailed field survey of all urban areas of the County, including petitioners' parcel. In addition, a property owner's matrix was prepared, and approximately 400 parcels of property, including petitioners, that were proposed for reclassification to another land use category were reevaluated. The only remaining question is why the amendment allows urban development at a density of four residential units per acre on the northern part of petitioners' property but only allows one residential unit per ten acres on the southern part when the entire parcel is surrounded on all sides by the same land use, namely, an existing DRI and subdivision. In other words, absent some data and analysis to the contrary, logic would dictate, and it can be reasonably inferred, that the same land use classification should apply to the entire parcel. However, the County's representation that a property survey and matrix support this change was not credibly contested. Further, on page 53 of the data and analysis supporting the amendment is found the following summary regarding the change on the northern 318.57 acres of petitioners' property from urban reserve residential to urban expansion medium density residential: The County recognizes that development of the complete enclave area will require DRI/ Comprehensive Plan Amendment review, and establishing the small Urban Expansion Area will accommodate some preliminary development prior to the need to commence the DRI/Amend- ment process while maintaining the continuity of the remaining non-urban enclave area lying south of CR 484, a Major Collector roadway. Given these considerations, it cannot be said to the exclusion of fair debate that the plan amendment, as it affects petitioners' property, is not supported by adequate data and analysis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered determining the challenged plan amendment to be in compliance. DONE AND ENTERED this 7th day of May, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4387GM Petitioners: Petitioners' Proposed Recommended Order did not contain a section entitled "Findings of Fact." Where proposed findings are found in other portions of the order, they have been partially accepted in findings of fact 8-16. Respondents: 1-3. Partially accepted in findings of fact 1 and 2. 4-7. Partially accepted in finding of fact 3. 8. Partially accepted in findings of fact 4 and 5. 9-11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 12. Partially accepted in findings of fact 2 and 9. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 2. 15-16. Partially accepted in finding of fact 10. 17-18. Rejected as being unnecessary. 19-20. Partially accepted in finding of fact 14. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dick and Mary McGinley 5295 Southwest 135th Street Ocala, Florida 34473 Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690
The Issue Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Purchase of the Property. In the Spring and Summer of 1985, Thomas W. Anthony began an inquiry relative to the purchase and development of 21.5 acres (original tract) located at the intersection of Capital Circle West and I-10. (R-2, pp. 11-15.) On December 11, 1985, a Deposit Receipt and Contract for Sale and Purchase was executed between Rehold, Inc. and C. Gary Skartvedt, Thomas W. Anthony, and Mary J. Price, d/b/a Denver West Joint Venture (Denver, Colorado) for the purchase of the original tract. (Deposit Receipt and Contract for Sale and Purchase.) On March 14, 1986, the Interstate-Tallahassee West Partnership Agreement was executed and Interstate purchased the original tract from Rehold, Inc. (Chronological Listing of Events, p. 1.) At the time of the closing on the initial purchase of the original tract, the property was zoned C-2, with the exception of a small portion in the northwest corner of the tract which was zoned A-2. (R-2, pp. 34-35, Preliminary Plat approved on January 18, 1990.) Development Chronology. During 1987 and 1988 the original tract was held to realize growth potential in terms of Interstate's economic investment. (Chronological Listing of Events, p. 2.) In 1989, Interstate began negotiations for the sale of a portion of the original tract to Kent C. Deeb (Deeb). (Chronological Listing of Events, p. 2.) On June 26, 1989, Broward Davis and Associates, Inc. prepared a drawing of easement location and depiction of a 25 year flood line relative to the portion of the original tract which was the subject of the negotiations between Interstate and Deeb. (Chronological Listing of Events, p. 2, R-2 p. 20.) On September 12, 1989, Tilden Lobnitz and Cooper, Inc., (Consulting Engineers) recommended a reconfiguration of the original tract relative to the location of high voltage power lines. (Chronological Listing of Events, p. 2.) On October 11,1989, final descriptions of the lakes on the original tract were prepared for Interstate by Broward Davis and Associates. (Chronological Listing of Events p. 2.) On November 13, 1989, a sketch depicting a revised legal description of a proposal to subdivide the subject property was prepared for Interstate by Broward Davis and Associates, Inc. (Chronological Listing of Events, p. 2.) On December 7, 1989, an Environmental Assessment of the site was prepared for Interstate by Jim Stidham and Associates. (Chronological Listing of Events, p. 2.) On December 14, 1989, Deeb executed a Purchase and Sale Agreement which contemplated the conditional purchase of 6.98 acres of the original tract from Interstate. Interstate signed the Purchase and Sale Agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate contends the execution of this Purchase and Sale Agreement resulted in it incurring substantial contractual obligations and argues that these obligations (along with other items and events) are elements in support of "common law vesting" of its development rights. This agreement is the subject of expanded discussion later in this Final Order. The services that Interstate obtained during 1989 (as described in paragraphs 6-11 above) were related to the eventual consummation of the Purchase and Sale Agreement with Deeb. (R-2, pp. 20-21 and 27, Chronological listing of Events, p. 2.) On January 18, 1990, the Tallahassee-Leon County Planning Commission approved Interstate's Preliminary Plat of the subject property. (Chronological Listing of Events, p. 3.) On April 4, 1990, the Tallahassee City Commission approved Interstate's previously filed application to rezone a portion of the subject property from A-2 to C-2. (Chronological Listing of Events, p. 3.) Interstate entered into a written Utility Agreement with the City on or about July 10,1990. (Letter of agreement dated June 25, 1990 from Henry L. Holshouser, Director of Growth Management, to Interstate Tallahassee West.) The Utility Agreement is the subject of expanded discussion later in this Final Order. On August 20, 1990 a Vested Rights Application covering 6.98 acres of the original tract, which is the subject of the Purchase and Sale Agreement between Interstate and Deeb, was approved. (Letter dated August 21,1990 to Kent Deeb from Mark L. Gumula, Director of Planning, Tallahassee-Leon Planning Commission, containing CERTIFICATION OF VESTED STATUS.) The Vested Rights Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.) Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.) As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.) As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.) As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.) As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.) Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.) The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.) As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.) At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property. Costs Associated with Interstate's Property. Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City. Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City. Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City. Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.) These costs were not incurred based upon any representation of the City. Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the 6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City. The Purchase and Sale Agreement with Deeb. Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement. Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.) Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.) The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.) The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan. The Utility Agreement. The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations. The Preliminary Plat Approval. The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations. The A-2 Rezoning Approval. Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations. Interstate's Application for Vested Rights. On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.) The Following information concerning the development of the subject property is contained on the Application: "Kent C. Deeb" is listed as the "owner/agent". Question 3 lists the name of the project as "Interstates Tallahassee West." The project is described as a "Four Lot Subdivision." The project location is described as "lots 1 and 2 Block A Commonwealth Center." The total project costs are estimated at $2.5 Million." Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site Preparation: "Zoning, Platting, and Plans"; D. Construction: "Original Holding Ponds". Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million. The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat." On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate. By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied. During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
Conclusions Having considered the entire record in this cause, it is concluded that petitioner has satisfied all requirements in Subsection 190.005(1)(e), Florida Statutes (1989). More specifically, it is concluded that all statements contained within the petition have been found to be true and correct, the creation of a district is consistent with applicable elements or portions of the state comprehensive plan and the Lee County comprehensive plan currently in force, the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district, the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities, and the land that will be served by the district is amenable to separate special- district government. Respectively submitted this 7th day of May, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. Appendix A (Names and Address of Witnesses) Bryon R. Koste, 801 Laurel Oak Drive, Suite 500, Naples, Florida 33963 Thomas R. Peek, 3200 Bailey Lane at Airport Road North, Naples, Florida 33942 Gary L. Moyer, 10300 N.W. 11th Manor, Coral Springs, Florida 33071 Dr. Lance deHaven-Smith, Florida Atlantic University, 220 S.E. 2nd Avenue, Fort Lauderdale, Florida 33301 Samuel R. Crouch, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 David E. Crawford, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 Dr. James E. Pitts, College of Business, Florida State University, Tallahassee, Florida 32306 William Spikowski, Lee County Community Development Department, 1831 Hendry Street, Fort Myers, Florida 33901 Gary L. Beardsley, 2396 13th Street North, Naples, Florida Richard Huxtable, 4741 Spring Creek Road, Bonita Springs, Florida 33923 Larry Sullivan, 4778 Tahiti Village, 4501 Spring Creek Road, Bonita Springs, Florida 33923 Lee Menzies, Business Development Corporation of Southwest Florida, corner of Summerlin and College Parkway, Fort Myers, Florida Donna Buhl, 4501 Spring Creek Road, Box 91, Bonita Springs, Florida 33923 Ruth Norman, 24578 Redfish Street, S.W., Bonita Springs, Florida 33923 James Pepper, P. O. Box 1260, Bonita Springs, Florida 33923 (Names and addresses of persons filing written statements) Eugene S. Boyd, 5225 Serenity Cove, Bokeelia, Florida 33922 Edward S. Zajchowski, 4501 Spring Creek Road, Box 178, Bonita Springs, Florida 33923 Winifred M. Wheeler, 24593 Dolphin Street, S.W., Bonita Springs, Florida 33923 James W. Campbell, 4501 Spring Creek Road, Box 131, Bonita Springs, Florida 33923 Dorothy Jean Kendrick, 300 Haral Street, Sturgis, Michigan 49091 Exhibit A Appendix B (List of Documentary Evidence) Location map Local boundary map outlining district Map of district and surrounding areas Collier County Comprehensive Future Land Use Map Exhibit B Pelican's Nest PUD 1b Ridgewood RPD 1c Palmetto Bay RPD 1d Pelican's Nest RPD 1e Summary of status of permits Proposed development agreement Statement by Crawford concerning DRI Exhibit C Petition filed by Westinghouse Bayside Communities, Inc. Location map Metes and bounds legal description of district Consent to establishment of district Map of existing major trunk water mains, sewer interceptors or outfalls Proposed time tables and cost estimates Future land use portion of Lee County Comprehensive plan Economic impact statement Exhibit D Supplement to metes and bounds description in petition Specific description of all real property within district Exhibit E Photocopy of $15,000 processing check sent to County Letter transmitting petition to Commission Secretary Exhibit F Letter transmitting petition to Division of Administrative Hearings Exhibit G Notice of Publication in Florida Administrative Weekly on March 8, 1991 Affidavit for Fort Myers News-Press publication, March 11, 1991 Affidavit for Fort Myers News-Press publication, March 18, 1991 Affidavit for Fort Myers News-Press publication, March 25, 1991 Affidavit for Fort Myers News-Press publication, April 1, 1991 Exhibit H Lee County Comprehensive Plan Documentation of plan status Exhibit I Chapter 187, Florida Statutes Exhibit J Letter of March 14, 1991 from Secretary of Department Community Affairs to Commission Secretary Exhibit K White Paper by Dr. Lance deHaven-Smith Supplemental Exhibits Prefiled testimony of Bryon G. Koste Prefiled testimony of Samuel R. Crouch 3A Letter from Samuel R. Crouch to Jim Pepper 3B Letter from Samuel R. Crouch to Lloyd Read Prefiled testimony of Gary L. Moyer Prefiled testimony of David E. Crawford Prefiled testimony of Thomas R. Peek Prefiled testimony of Dr. Lance deHaven-Smith Intevenors Exhibit 1 - Letter of Edward S. Zajchowski COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, FL 32399-0001 Kenza Van Assenderp, Esquire P. O. Box 1833 Tallahassee, FL 32302-1833 Judith A. Workman, Esquire 408 Old Trail Road Sanibel, FL 33957 Marianne Kantor, Esquire Asst. County Attorney Lee County Courthouse 1700 Monroe Street Fort Myers, FL 33901 David M. Maloney, Esquire Office of the Governor The Capitol, Room 309 Tallahassee, FL 32399-0001
Findings Of Fact Petitioner, William Burke, is the developer of the Countryside Retirement Resort, a proposed development of regional impact, (DRI), located in DeSoto County, Florida. Sunrise Farms, a Florida general partnership, is the owner in fee simple of the site, but is not a party in this matter. Respondent, DeSoto County Board of County Commissioners, is a local government with jurisdiction over the proposed project site. It is responsible for the administration of the DeSoto County Comprehensive Plan, land development regulations, and zoning code. On August, 15, 1990, after a duly-noticed public hearing, the Board of Commissioners of DeSoto County denied Burke's Application for Development Approval and Request for Rezoning. On April 23, 1991, the Board of Commissioners of DeSoto County, pursuant to Chapter 163, Florida Statutes (1989), and the rules promulgated thereunder, adopted its current comprehensive plan. Intervenor, Department of Community Affairs, is the state land planning agency with the power and duty to enforce and administer Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. The Department is also authorized to appeal DRI development orders issued by local governments pursuant to Section 380.07, Florida Statutes, and has demonstrated a substantial interest in the outcome of this proceeding. Intervenors, M. Lewis Hall, Jr., M. Lewis Hall, III, Don T. Hall, Frank D. Hall and Steven V. Hall, are landowners near the subject site, and are substantially effected persons. The proposed site of the project is located on Highway 31, approximately ten miles from the City of Arcadia, at the SW 1/4 and W 1/2 of the SE 1/4 of Section 1, Township 39 South, Range 25 East, DeSoto County Florida The project has been named Countryside Retirement Resort (Countryside), and is a proposed PUD intended as an Adult Residential Community which is designed to contain, at build-out, a maximum of 1440 park model residential homesites and 60 transient RV spaces on approximately 239.71 acres. The 1440 permanent park model resort homes are to be offered as a "turn-key" package to insure architectural control and adherence to project design. Park model homes are prefab, factory-built units, which are not susceptible to being moved again. The units in each phase will have a single bedroom, and the estimated price for all phases is $55,000, including the lot and lot preparation. Gross density for the project is 6.0 and 6.25 units per acre, based upon 1440 (park model homes) and 1500 (including 60 RV spaces) units, respectively. The development is privately funded and includes all streets, utility systems, public safety services, community buildings, recreational facilities, and general community amenities. The project area is currently zoned A-5 or improved pasture agricultural, with one dwelling unit per five acres permitted. To the north, the property is zoned A-10, citrus grove agricultural. To the south, the property is zoned improved pasture-agricultural, A-5. The Petitioner proposes to dedicate the 40 feet along the South side of the property to DeSoto County for street purposes. Adjacent to the public dedication will be a 40 foot project buffer for fencing, landscaping, and stormwater containment. The main entrance is to be located at State Road 31, approximately 1,000 feet North of Pine Island Street. Turn lanes are to be provided to minimize any potential detriment to the flow of traffic on the state roadway. As requested by County staff, forty feet of additional right-of-way has been set aside for the future widening of Pine Island Street. In addition to the 40 foot right-of-way for Pine Island Street (approximately 3.66 acres), access and improvements at all intersecting streets will be made. The additional traffic, sewer and potable water impacts will be provided for by the developer. A secondary access from Pine Island Street runs east from SR 31 approximately two miles, and dead ends at the Hall Ranch. The adjoining 40 foot buffer strip features, in addition to security fencing, a perimeter drainage swale and earthen mounds with landscaping that will screen the community from the public roadway. The buffer strip is not intended for future road purposes. The 40 foot buffer will be placed around the perimeter of the site. The buffer will consist of earthen berms and landscaping to protect the community from the outside, and the outside from the community, to make it as self-supporting and self-contained as possible. A 6.5 acre tract in the southwestern corner of the site has been reserved to provide for the commercial institutional needs of the residential community. Anticipated commercial uses include a general store (providing food, hardware, and dry goods), personal service shops, professional office space, and a motel (58 units) with a restaurant. Institutional uses include an arts and crafts building, a volunteer fire station equipped with a "quick response" vehicle, and office space for use by the sheriff's office, a second floor residence apartment for the community manager, the project's water treatment plant, and a helipad for emergency medical services. A general utility area, including maintenance building, the wastewater treatment plant, and a dry storage area for boats and RV's will be located in the Southeast corner of the property, buffered from adjoining properties and from the internal community. The project will also feature an 18 hole executive golf course with a pro shop and aquatic driving range, a multi-use clubhouse, four lighted tennis courts, six neighborhood swimming pools, and a series of mini-parks. The Petitioner's intent is to design the resort to function as a relatively self-contained and readily identifiable neighborhood of the County. The project calls for an on-site sewage treatment plant with tertiary filtration attached to the plant. At build-out, the plans call for the plant to treat approximately 315,000 gallons of sewage per day. A total of 8.99 acres of both man-made and natural wetlands were identified on the site. The project complies with applicable regulations with respect to preservation of wetlands. Approximately 27.75 acres of wetlands are to be created, and approximately 22.95 acres of proposed lakes will exist at completion. The project conforms with applicable regulations with respect to water use. The project's drinking and irrigation water will be served from on-site wells. An on-site water treatment plant will also be built. Adequate provisions are made for hurricane shelters and evacuations measures. The project conforms with applicable regulations with respect to air emissions. The project conforms with applicable regulations with respect to vegetation and wildlife. The entire site is cleared of natural vegetation and managed as improved pasture. The project site as well as adjoining land is not unique agricultural land. The project will not significantly deplete the agricultural community adjacent to the project or in the general neighborhood. Estimates from 1982 indicate that 236,722 total acres of pasture exist in DeSoto County. Removal of the project site from cattle production represents a total of .097% of the total pasture acreage in the County. Approximately 96% (230 acres) of the existing site is improved pasture land for cattle grazing while 6.9 acres or less than 3% of the project's site covers wet prairie. No natural wildlife corridors exist between the subject parcel and any surrounding natural lands. There are no significant historical or archeological sites or corridors considered likely to be present within the project area. Approval of the project would add to the tax revenue base of DeSoto County. The DeSoto County landfill is designed to meet the needs of the County until the year 2000 based on its projected increase of population. The proposed project at buildout, prior to the year 2000, falls below the projected increases of population. The projected increase in population by the year 2000 ranges from 4300 to 5800 with the proposed project generating a theoretical maximum increase in population of 3,000 persons if all units were occupied on a year round basis. The landfill will have adequate capacity to meet the demand from the project. No unusual or industrial or hazardous wastes will originate on-site. A 1.75 acre site has been reserved for the sewage treatment plant in the Southeast corner of the subject property. Sludge is scheduled to be disposed of by a licensed hauler. A tertiary wastewater treatment plant is to be provided in all phases of development. The wastewater is to be filtered and highly disinfected to provide treatment effluent for irrigation purposes. The plant will be situated on approximately 3/4 of an acre including surrounding open space and buffer areas. The utility site is of sufficient size to provide treatment of waste water for the entire development. All on-site facilities (collection treatment) are to be operated and maintained by the homeowner's association in accordance with the Florida Department of Environmental Regulation operating permits. On-site treatment and disposal facilities are being proposed that will be capable of serving the entire development. The proposed drainage system for the project is consistent with applicable regulations. The water supply system proposed for the development complies with applicable regulations. Florida Power and Light Company has sufficient capacity to provide electrical service to the project. While the project will contribute property taxes to the educational system, the development will not have a negative impact on the DeSoto County District School System, since this project will be an adult community, and no school-age children are contemplated. 94.18 acres, or almost 40% of the development site, are to be devoted to recreation uses and open space. A helipad will be constructed to enhance MedVac emergency services to the project and the surrounding area. DeSoto Memorial Hospital is licensed for 82 beds, and provides emergency services. DeSoto Memorial Hospital is a community not-for-profit facility, serving the DeSoto County area and located in Arcadia, Florida. Health Care and medical services are available at the Hospital and the Arcadia area to meet the needs of the Countryside residents. The county operated ambulance (EMS and ALS certified) offers 15 to 20 minute response time from its headquarters station on State Road 70, a distance of 7 miles, via SR 31. Fire protection services for the project are to be provided by the public safety department of DeSoto County. The nearest fire station is located at State Road 70 and Airport Road about seven miles north of the property. Under normal traffic conditions, response time is estimated to be approximately 10 to 12 minutes. The county's fire protection services are to be enhanced by the construction of an auxiliary fire station on-site. The Petitioner proposes to develop a volunteer fire department from among the residents of the project with emphasis on fire, emergency medical, quick response fire truck and a building for sheltering in the event of a disaster or potential emergency (portable electric, water, restrooms, kitchen and proper square footage to accommodate the residents of the development) would serve as a benefit to the County on SR 31. On April 23, 1991, the Board of County Commissioners for DeSoto County adopted Ordinance 91-03, a new comprehensive plan for the County. Included are goals, objectives and policies in the Future Land Use Element of the Plan. The Future Land Use Element, Goal L. Objective L2 of the DeSoto County Comprehensive Plan, provides that: Development orders and/or permits for future development and redevelopment activities shall be issued only if public facilities necessary to meet level of service standards, adopted as part of the Capital Improvements Element of this Plan, are available concurrent with the impacts of development. The Future Land Use Element, Policy L2.5 of the DeSoto County Comprehensive Plan, provides that: No local development order or permit will be issued unless the County determines that the appropriate level of service standards can be met for: drainage; potable water; recreation and open space; solid waste disposal; traffic circulation; and waste water treatment. Traffic Circulation Element, Goal T of the DeSoto Comprehensive Plan, provides that the goal of the traffic element of the Plan will be to "provide for a safe, efficient and economical traffic circulation system." To implement Goal T, Objective T1 provides that, "DeSoto County shall provide a safe and efficient transportation system, and shall establish minimum criteria and standards to ensure the effective functioning of all public roadways within its jurisdiction." The proposed development site accesses State Road 31, a north/south, two-lane minor arterial roadway connecting the City of Arcadia with the City of Fort Myers. SR 31 is currently at a Level of Service (LOS) of B, or better. The DeSoto County Comprehensive Plan, Policy T1.1, has established a peak season/peak hour level of service standard of D or better for SR 31. The Five- Year Schedule of Capital Improvements in the DeSoto County Comprehensive Plan does not provide for the improvement of SR 31. The average daily traffic maximum volumes established by the Department of Transportation for a LOS D on a minor arterial, such as State Road 31, is 15,000 trips per day. Four separate traffic studies were performed regarding the potential impacts of the proposed development on State Road 31. The first two studies were performed by Mr. Gordon Meyers of Ink Engineering, Inc., the third by Mr. Richard Doyle of Tampa Bay Engineering, Inc., and the fourth by Ms. Nanette Hall of Florida Transportation Engineering, Inc. The study area included segments of SR 31 and the intersection of SR 31 and SR 70, as well as, SR 31 and SR 760-A. SR 70 runs east-west and expands from a two lane roadway to a four lane major arterial at the intersection of SR 70 and SR 31. CR 760-A is a two-lane rural major collector extending westerly from SR 31, just north of the G. Pierce Wood Memorial Hospital, to US 17, which provides access to the Punta Gorda area and Interstate 75. The Department of Transportation has three traffic counting stations on State Road 31 from which reliable traffic data has been collected since 1984. The location of these traffic counting stations are as follows: Station #26, is located just south of the intersection between State Road 31 and State Road 70; Station #4, is located approximately halfway between the site of the proposed development and State Road 70, north of the intersection between State Road 31 and County Road 760A; Station #31, is located south of the intersection between State Road 31 and County Road 760A, and north of the proposed site of the proposed development. All four studies made projections as to the anticipated increase in traffic volume at these stations should the proposed development be approved. The four traffic studies obtained the following projections for the anticipated traffic volumes and corresponding LOS's that would exist at the traffic counting stations upon build out of the proposed development summarized in the table below: LOCATION FIRST STUDY SECOND STUDY THIRD STUDY FOURTH STUDY (MEYER) (MEYER) (DOYLE) (HALL) Station #31 12,474/LOS D 7,610/LOS C 12,474/LOS D 13,466/LOS D Station #4 13,557/LOS D 9,250/LOS C 10,080/LOS D 15,384/LOS E Station #26 15,172/LOS E 9,380/LOS C 10,341/LOS D 17,111/LOS E Of the four traffic studies performed, the projections of the fourth (Hall) study were the most reliable. It was the only study to use historic data available on State Road 31 in the Calculation of a growth rate for background traffic volume, and did not suffer from the methodological flaws that existed in the other studies. The fourth (Hall) traffic study indicated that the proposed development at build out would cause large sections of State Road 31 to exceed its level of service established by the DeSoto County Comprehensive Plan, and reduce the level of service below D. The fourth (Hall) study also projected the traffic impacts of the proposed development if developed in two phases, the results (expressed in average daily traffic and peak hour/peak season impacts) of which are summarized in the table below: LOCATION PEAK HOUR/PEAK SEASON AVERAGE DAILY TRAFFIC PHASE I PHASE II PHASE I PHASE II Station #31 892/LOS C 1,394/LOS D 9,062/LOS C 13,466/LOS D Station #4 1,033/LOS D 1,544/LOS E 10,732/LOS D 15,384/LOS E Station #26 1,183/LOS D 10,341/LOS D 12,397/LOS D 17,111/LOS E Countryside has never requested phased approval for the project. The fourth (Hall) traffic study indicated that even if approval were given for "Phase I" alone, a major portion of the LOS D capacity of the roadway (approximately 80% to 85% of the capacity) would be used up, reducing the possibilities for further development of those sections of State Road 31 between the proposed development and State Road 70. The proposed development will not meet the appropriate level of service for traffic circulation. Land Use Element Policy L6.8 of the DeSoto County Comprehensive Plan provides that: Residential development in a Rural/Agricultural area shall not exceed a maximum density of one dwelling unit per ten gross acres. In a Rural/Agricultural area, the lowest order of commercial goods and services which serve the daily needs of nearby residents may be permitted only on arterial or collector roadways. Commercial areas in a Rural/ Agricultural area shall be appropriately buffered, shall not exceed 3 acres in size, shall not exceed impervious surface lot coverage of 70 per cent, and shall be no less than 2 miles from other commercial development in a Rural/Agricultural area or in other future land use categories. Industrial uses within a Rural/Agricultural area may be permitted only when such activity is related to the extraction or processing of minerals; or when related to agriculture; or is of a scale and nature that would not be acceptable in Town Center. Other industrial uses, such a power plants or manufactured or processing facilities may be permitted, and shall have access to a collector or arterial roadway, shall meet all local regulations, and shall be appropriately buffered from surrounding land uses, including agricultural uses. Within a Rural/Agricultural area, the approval of residential development shall acknowledge that the protection of agricultural lands is a primary function of a Rural/Agricultural area, and that land management activities associated with agricultural uses may be incompatible with residential development. However, such management activities are considered to be an essential element of the protection of successful operations on agricultural lands and the continuation of such activities shall take precedence. Future Land Use Element, Goal L. - Objective L3 of the DeSoto County Comprehensive Plan, provides that "DeSoto County shall promote compatible future land use patterns." The current DeSoto County Comprehensive Plant, Future Land and Use Element, Objective L6, provides: Objective L6: As a part of this plan, DeSoto County's Future Land Use Map series shall be applied only in conjunction with the policies of this element and other elements of the DeSoto County Comprehensive Plan, and shall generally illustrate and coordinate the appropriate distribution of residential, commercial, industrial, agricultural, preservation, public and utility facility land uses to effectively manage the projected population growth of the County. The Future Land Use Map (FLUM) and the Plan's policies are used to effectively manage the projected population growth of the County. The Countryside project is not depicted, in terms of an appropriate land use category, on the FLUM. The Future Land Use Map indicates that the project site is located in an R/A (Rural/Agricultural) land use designation with a maximum allowable density of one residential unit per ten acres. The density of the proposed project is in excess of six dwelling units per acre. The 1991 DeSoto Comprehensive Plan, data and analysis section, indicates that there are 2,765 approved, unconstructed recreational vehicle (RV) sites in nine undeveloped, but approved RV parks, covering 448 acres. The Plan indicates that these approved RV sites will meet the anticipate need through the year 2000. The 1991 Plan estimates that 427 seasonal residents (usually retirees), will be added to the seasonal population of the County between 1990- 2000. Based on two persons per dwelling unit and six dwelling units per acre, only 214 units of new RV residential development will be needed between 1990 and 2000. The existing approved, but unconstructed RV sites, exceed the projected need almost thirteen times. The proposed DRI would add an additional 1500 units, resulting in 4,051 more units than the projected need. Policy L3.3 of the DeSoto County Comprehensive Plan provides that: Land uses which are potentially incompatible either due to type of use or intensity of use, shall be buffered from one another through the provision of open space, landscaping, berms, alternative site design or other suitable means. Land development regulations shall establish criteria for appropriate buffering between adjacent land uses. Policy L3.4 of the DeSoto County Comprehensive Plan provides that, "where the application of such measures as identified in Policy L3.3 cannot mitigate the incompatibility between proposed and existing land uses, the proposed land use shall be disapproved." The proposed development is not functionally related to the surrounding agricultural activities and numerous incompatibilities between the land uses shall arise as adjacent landowners conduct agricultural activities such as application of pesticides and fertilizers and other activities which produce smells, sprays, dust, noises and other externalities incompatible with residential use. The incompatibility of this project with existing land uses cannot be eliminated under the proposed buffers of berms, landscaping, and fencing proposed in the ADA. To implement Goal L. Objective L4 of the DeSoto County Comprehensive Plan, Policy L4.1 provides that: The DeSoto County Comprehensive Plan and implementing land development regulations, to be adopted by August 1, 1991, shall include provisions that permit or require a variety of land development techniques that discourage sprawl while protecting natural resources including: Establishment of mixed use future land use categories in the DeSoto County Comprehensive Plan to provide residential, commercial and employment opportunities in close proximity; Clustering of development to protect natural resources, open space and agricultural uses, provide for access management to arterial or collector roadways, provide for appropriate buffering, and make efficient use of public facilities and services; Establishment of guidelines or incentives to encourage infill development in the Town Center, Mixed Use Corridor and Suburban Residential areas, which may include . . . There is a clear intent in the DeSoto County Comprehensive Plan to discourage urban sprawl. "Urban sprawl" is defined in the plan as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental, agricultural and natural resource protection. Urban sprawl typically manifests itself in one or more of the following ways: 1) leapfrog development; 2) ribbon or strip development; and 3) large expanses of low-density, single-dimensional development." The proposed development is an example of the leapfrog development type of urban sprawl. It provides for residential development far beyond the projected needs of the surrounding area. It is located far from the nearest urban centers and is surrounded by rural land uses. The proposed development would create an urban level of density and intensity of use within a rural area. It is not a well balanced mixed use development. It is not compatible with, nor functionally related to, the surrounding uses, and is designed to be cutoff and separated from those uses. The proposed development cannot be considered a "rural village." It does not support surrounding agricultural activities, but is, in fact, incompatible with surrounding land uses. Because of its location and lack of multiple uses, this development will encourage lengthy commuting, contrary to the policies of the state comprehensive plan to continue to reduce per capita energy consumption, Section 187.201(12), Florida Statutes. The proposed project is not an efficient development because of its location away from existing facilities and services, shopping and employment, contrary to the policies of the state comprehensive plan to encourage efficient development and direct development toward areas which will have the capacity to service new population and commerce, Section 187.201(21), Florida Statutes. The State Comprehensive Plan, Section 18, "Public Facilities," provides that Florida shall protect the substantial investments in existing public facilities. This project conflicts with this policy, as investments in existing public facilities are best protected by directing growth to nearby locations to efficiently use those facilities, Section 187.201(18), Florida Statutes. The proposed project also conflicts with the state comprehensive plan policy related to governmental efficiency, which encourages the replacement of small scale economically inefficient local public facilities with more economical regional facilities. The project proposes to establish small facilities, rather than efficiently utilize larger facilities, Section 187.201(21), Florida Statutes. Section 380.08(3), Florida Statutes provides: (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate in writing any changes in the development proposal that would make it eligible to receive the permit. The Board of Commissioners, in issuing its denial of the Countryside Retirement Resort specified its reasons for denial and identified changes which would make it eligible for approval as follows: The proposed development known as "Countryside Retirement Resort" is not consistent with the DeSoto County Comprehensive Plan, nor the DeSoto County Land Use Regulations. The proposed development does not make adequate provision for public facilities needed to accommodate the impact of the proposed development. There are no known changes that would make the proposed development eligible to receive approval due to the inappropriateness of the requested zoning. The DeSoto County Zoning Ordinance, Section 14.5(a), provides that among factors to be considered in a rezoning is "whether the proposed change would be contrary, and would have an adverse effect on the Comprehensive Plan." The DeSoto County Zoning Ordinance, Section 14.5(b), provides that among the factors to be considered in a rezoning is "the existing land use pattern." The existing land use pattern in the area is agricultural. The proposed development would create a medium density residential enclave within the existing land use pattern of agricultural use. The DeSoto County Zoning Ordinance, Section 14.5(c), provides that among the factors to be considered in a rezoning is "the possible creation of an isolated district unrelated to adjacent and nearby districts." The proposed development would be an isolated district of high intensity residential land use surrounded by agricultural and low intensity residential land uses. The DeSoto County Zoning Ordinance, Section 14.5(d), provides that among the factors to be considered in a rezoning is "the population such as schools, utilities, street, etc." The existing allowable density in this area of DeSoto County is 1 unit per 10 acres. The proposed development would increase this to 6 units per acre. Response time for police, fire, and rescue services would be poor if provided by existing facilities and personnel. Persons needing essential services that could only be provided in the City of Arcadia would have at least a twenty minute round trip. The County would experience a greater burden in providing services to the proposed development than it would if the development were located closer to the City of Arcadia. The DeSoto County Zoning Ordinance, Section 14.5(f), provides that among the factors to be considered in a rezoning is "whether changed or changing conditions make the passage of the proposed amendment necessary." There are no changed or changing conditions in the area which would make it necessary to amend the zoning or the Comprehensive Plant. The DeSoto County Zoning Ordinance, Section 14.5(g), provides that among the factors to be considered in a rezoning is "whether the proposed change will adversely influence living conditions of the neighborhood." The proposed development would create a high density residential development, urban type land use in an area of DeSoto County which heretofore enjoyed a rural character. The DeSoto County Zoning Ordinance, Section 14.5(h), provides that among the factors to be considered in a rezoning is "whether the proposed change will create or excessively increase traffic congestion or otherwise affect public safety." The proposed development would create traffic congestion, and would adversely affect public safety. The DeSoto County Zoning Ordinance, Section 14.5(l), provides that among the factors to be considered in a rezoning is "whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations." The proposed development would have an adverse impact on adjacent properties as property owners attempt to develop their properties. This development would drastically reduce the reserve capacity of State Road 31, and adjacent property owners would find it increasingly difficult and expensive to meet the Levels of Service required by the Comprehensive Plan. The DeSoto County Zoning Ordinance, Section 14.5(m), provides that among the factors to be considered in a rezoning is "whether the proposed change will constitute a grant of a special privilege to an individual owner as contrasting with the public welfare." The proposed development would not constitute the grant of a special privilege if approved, since the developer is seeking approval of a PUD. The DeSoto County Zoning Ordinance, Section 14.5(n), provides that among the factors to be considered in a rezoning is "whether there are substantial reasons why the property cannot be used in accordance with existing zoning." There is no reason why the property on which the proposed development is to be located could not be used for what it zones, agricultural usage. The DeSoto County Zoning Ordinance, Section 14.5(o), provides that among the factors to be considered in a rezoning is "whether the change suggested is out of scale with the needs of the neighborhood or the County." The proposed development is out of the scale with the needs of the County and the immediate neighborhood. The neighborhood is designated at a maximum density of 1 unit per 10 acres. This development would be at a density of 6 units per acre. The DeSoto County Zoning Ordinance, Section 14.5(p), provides that among the factors to be considered in a rezoning is "whether it is impossible to find other adequate sites in the County for the proposed uses in districts already permitting such use." There was no showing that other sites in DeSoto County could not be developed at this time. The DeSoto County Zoning Ordinance, Section 9.3, Planned Unit Development Districts (PUD), provides in part that it is the intent of the PUD Ordinance "to provide an optional alternative zoning procedure so that planned developments may be instituted at appropriate locations in the County in accord with the planning and development objectives of the County." The proposed development is not in an appropriate location, nor is it in accord with the planning and development objectives of the County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered by the Florida Land and Water Adjudicatory Commission denying of the application for development approval of Petitioner, and upholding the decision of the DeSoto County Board of County Commissioners to deny the request for rezoning for the Countryside Retirement Resort. DONE AND ENTERED this 27th day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs - 1(in part),2,3,6(in part),7(in part),16,17,18,19,20(in part),21,22(in part),23,24,26,27(in part),28,29(in part),30, 31,32,33,36(in part),37,38,39,40,41,42,43,44,46(in part),49 (in part),50,51,52,53,54,55,56,57,58,59,60,61 (in part),62,63,64,65,66,67,68,69 (in part),71,72 (in part),73,74,75(in part),76,81,92,95(in part),96(in part),98,99,100,101,105,106(in part),108,109(in part),112(in part) Rejected as against the greater weight of evidence: paragraphs - 4,5,6(in part),(in part),8,15,47,48,72(in part),77,78,79,80,82,83,84,88,89,102,104,106(in part),107,109(in part),110,111,112(in part),113,114 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 9,10,11,12,13,14,20(inpart),22(in part),25,27(in part),29(in part),34,35,36(in part),45,46(in part),49(in part),61(in part),69(in part),70,73,75(in part),85,86,87,90,91,97,103 Rejected as argument or conclusions of law: paragraphs - 93,94,95(in part),96(in part) Respondent's proposed findings of fact. Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18 (in part),19(in part),26,27,28,29,30,32(in part),36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54,58,59,60,61,62,63,64,65,66,67,68,69,70 ,71,72,74,75,76(in part),77(in part),78,79,80,81, 82,84,85,86,87 Rejected as against the greater weight of evidence: paragraph - 83 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 18(in part),19(in part),20,21,22,23,24,25,37 (in part),55(in part),56(in part),57(in part),73 Rejected as argument or conclusions of law: paragraphs - 14,31,32(in part),33,34,35,55(in part),56(in part),57(in part),76(in part),77(in part) Intervenor Department of Community Affairs' proposed findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7(in part),8,9,10,11,12,13,15,16,17,18,19,20,21(in part),22(in part),23(in part),24,25,26,27,28,29 Rejected as against the greater weight of evidence: paragraphs - 7(in part) Rejected as argument or conclusion of law: paragraphs - 14,21(in part),22(in part),23(in part) Intervenors Halls' proposed findings of fact. Intervenors Halls did not submit separate proposed findings, but adopted the proposals submitted by the Respondent. COPIES FURNISHED: Charlie Stampelos, Esquire William Wiley, Esquire MCFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Gary Vorbeck, Esquire Fred Bechtold, Esquire VORBEC, & VORBECK 207 East Magnolia Avenue Arcadia, Florida 33821 Kathryn Funchess Asst. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Lewis Hall, Jr., Esquire HALL & HEDRICK Republic National Bank Building 150 Southeast Second Avenue Suite 1400 Miami, Florida 33131 William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 G. Steven Pfeiffer, Esquire General Counsel, Dept. of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Douglas M. Cook, Director Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
