The Issue The general issue for determination in this administrative proceeding is whether Ordinance No. 1266-2002, adopting Amendment 02-1 (Plan Amendment) to the City of Rockledge's Comprehensive Plan, is not "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing, as amended.
Findings Of Fact The Parties Petitioners, Shelly W. Sutterfield, William E. Sutterfield, Becky Kosher, and James Kosher, are residents of the City, who reside within Pine Cove Subdivision, which is east of Fountain's property. This subdivision is located in the City's Planning District 8. Ms. Sutterfield stated that Petitioners want "to maintain the integrity of [their] planning district as low and medium-density in [their] neighborhood." Ms. Sutterfield also believed that the Plan Amendment "will add a high-density residential close to -- in close proximity to [their] neighborhood" and that "it will set a precedent for others to do the same thing." Ms. Kosher agreed. Petitioners appeared at most, if not all, of the local government public hearings held regarding consideration of the Plan Amendment leading up to and including the adoption of Ordinance No. 1266-2002 by the City. Petitioners opposed the Plan Amendment during each hearing. See also Findings of Fact 35-40. The Department is the state land planning agency responsible for reviewing local government comprehensive plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes (Act). This includes review of the proposed Plan Amendment adopted by the City, and a determination of whether the proposed Plan Amendment is "in compliance" with the Act. In this case, the Department reviewed the Plan Amendment submitted by the City and determined that it was "in compliance" with the Act. The City is the oldest incorporated municipality in Brevard County. The City is located on the shoreline of the Indian River Lagoon south of the City of Cocoa and north of Palm Shores and Melbourne. The City is approximately 10 square miles with a population of 20,174 as of 2000. The City is primarily a residential community, although it has some light, clean industry as well as a variety of commercial centers and institutional facilities, including a hospital, four public and three private schools, and churches of various denominations. The City has adopted a Comprehensive Plan and a FLUM, which was amended last on July 19, 2000, excluding the Plan Amendment at issue in this case. The City is divided into eight planning districts as reflected on the City's FLUM and in the text to the FLUE, Chapter 1, Appendix A, Planning District Guidelines, of the Comprehensive Plan. On May 19, 1999, the City adopted its Evaluation and Appraisal Report (EAR)-based amendments to its Comprehensive Plan pursuant to Ordinance No. 1182-99. Fountain is incorporated under the laws of the State of Florida and owns all the property (located within the City of Rockledge) that is the subject of the Plan Amendment. The Plan Amendment On or about August 23, 2001, Fountain submitted an application to the City, requesting the Plan Amendment at issue in this proceeding. First, Fountain requested a change to the City's FLUM, removing their property from Planning District 8, and placing it in Planning District 5. The property consists of approximately 9.163 acres (site or subject property) and is located adjacent to the intersection of Huntington Lane, to the east, and Eyster Boulevard, to the north. The property has pine trees and open grass areas. The subject property has no significant historical value and no environmental concerns have been raised. See Findings of Fact 50-68 for a more complete description of the subject property in relation to existing, surrounding land uses. As noted in Fountain's application: The applicant is proposing to build a high- rise apartment complex and needs additional density to meet the scale of economy for the project. The applicant also believes that with the FPL substation directly to the south and the property to the west being a large multi-family apartment project and the property to the north allowing manufacturing[,] [i]t would make more sense for the property to be in Planning District 5, instead of Planning District 8. The property to the east allows a mixture of low-density residential and single-family residential. In its application, Fountain claimed that the maximum allowed development under the existing designation in the FLUM for the property site is 96 residential dwelling units. Petitioners dispute this number and claim that the error is material. If the Plan Amendment is approved, the maximum allowable development under the proposed designation for the site is 118 dwelling units, i.e., 9.163 acres times a proposed maximum density of 13 dwelling units per acre. There is no dispute regarding this number. To this end, Fountain indicated that it "is willing to enter into a binding development agreement during the rezoning phase with the City to ensure adequate buffering to adjoining properties, where needed, as well as eliminate the possibility of the property to be used for commercial or manufacturing purposes." Fountain submitted a draft agreement to the City. However, no agreement has been signed by Fountain or the City. The subject property (without the Plan Amendment) is located in the northwest quadrant of Planning District 8. Planning District 5 is located immediately north of the subject property (across the street), and north of Eyster Boulevard, which runs east and west. Planning District 5 is located on the FLUM as a mixed- use planning district. The subject property, and the property to the west, south and east, are located in Planning District 8, which is designated as medium density residential on the FLUM. As defined in the City's Comprehensive Plan, "[m]edium density residential land uses shall be at a density greater than three (3) dwelling units per acre and not exceeding fourteen (14) dwelling units per acre." As provided in the Comprehensive Plan "Guidelines" for Planning District 5, the density for Planning District 5 for a new residential development "is limited to a maximum of fourteen (14.0) dwelling units per acre. . . ." With respect to Planning District 8, the "Guidelines" provide that the [m]aximum density allowed shall not exceed five (5) dwelling units per acre, current multi-family zoning districts shall be limited to existing densities. Any proposed zoning district changes shall be limited to a maximum of five (5) dwelling units per acre. Undeveloped areas west of Fiske Boulevard will be encouraged to be developed with a maximum of three (3) dwelling units per acre in order to protect the natural character of the land. In addition to requesting a change in the FLUM designation for the site, from Planning District 8 to Planning District 5, Fountain also proposed, and the City ultimately adopted, a textural Plan Amendment to the Planning District 5 "Guidelines," including paragraph 5.A., which provides: Those areas located on the west side of Huntington Lane and south of Eyster Boulevard and north of the Florida Power and Light sub-station, may develop residential at a maximum of thirteen (13.0) dwelling units per acre (appropriate zoning districts include R2A, R3, TH). No principal structure shall be constructed within 225 feet of the right-of-way of Huntington to a distance of 425 feet from the south boundary of the described property, and not closer than 50 feet to Huntington Lane beyond the 425 feet. Other conditions include the submittal of a binding site plan, building height limited to a maximum of 38 feet; deceleration lane to any point of ingress and egress, traffic calming techniques will be used at entrances, and sidewalk along Huntington Lane for the entire length of the property. Paragraph 5.A. was adopted as a site-specific addition within the Planning District 5 "Guidelines." Petitioners claim that this provision, when read with other provisions discussed in Planning District 5, allows Fountain to develop authorized land uses on the subject property, other than the development of only residential dwelling units. When read in its entirety, and based on the weight of the evidence, the text Plan Amendment authorizes only residential dwelling units and no other land use. The inclusion of only residential zoning districts and the clear language that the property may be developed "at a maximum of thirteen (13.0) dwelling units per acre" bolster this finding. Further, it is not uncommon for local governments to include various restrictions, such as maximum height restrictions and setback requirements, in plan amendments. These restrictions are not considered land development regulations within the context of the Comprehensive Plan. Rather, they are plan policies which define the parameters for future development within the planning districts, including Planning District 5. There is a body of "land development regulations" which are intended to implement comprehensive plans and are subject to independent scrutiny. See, e.g., Section 163.3202, Florida Statutes. However, the restrictions noted in the Plan Amendment are not land development regulations within the context of this "in compliance" review proceeding. Donald Robert Griffin of the City prepared a report consisting of two pages. Prior to preparing the report, Mr. Griffin reviewed the properties surrounding the subject property and also analyzed the potential impacts of the Plan Amendment on roads, sewer, and water, for example. In analyzing paragraph 5.A., City staff also considered in part setbacks and reducing the zoning on the site to ensure compatibility. The staff report includes input from City department heads, the City Manager, and other staff. Staff recommended approval. Staff indicated that the change in the residential land use classification for the approximate 9.163 acres would be consistent with the City's allocation percentages in its Comprehensive Plan. (The "need" for this Plan Amendment is not at issue in this proceeding.) Staff further noted: It would be staff's opinion that if the Brevard County enclave: (east of Fiske Blvd.; north of Howard Blvd. and south of Eyster Blvd.) was annexed into the city it would probably be put into Planning District 5, since it has a combination of mixed land uses. In addition, those properties immediately to the west of the subject property are identified as Woodhaven Apartments (799 Eyster Blvd.) a multi-family complex and the BCARC Group Home (951 Eyster Blvd.) a multi-family complex. Immediately to the south of the subject property is an FPL electrical substation. Immediately east of the subject property is Huntington Lane, a 50-foot road right-of-way, and property zoned either R-2A or R-2 on the east side of Huntington Lane. Immediately to the north of the subject property is Eyster Boulevard, a 100-foot-right-of-way and vacant M-1 industrial property. At the eastern terminus of Howard Boulevard, Florida Power and Light has a 100-foot wide easement, where power lines are currently in place. The easement limits the additional expansion of buildings into this 100-foot area. The property on the east end of Pine Cove, has a mixture residential and commercial uses adjacent to it, as part of Planning District 5. If this Comprehensive Plan Amendment is approved to allow the proposed change into Planning District 5, staff would recommend that when the property goes for rezoning, based on compatibility and consistency issues, that only residential land uses be allowed on the 9.163 acres. In addition, if the Amendment is approved, it should be suggested to the City Council that the area between Howard Boulevard and FPL Easement to the South; Fiske Boulevard to the west; Huntington Lane to the East; be incorporated into Planning District 5 at a future date. The Applicant does not have control over any other property beyond the 9.163 acres, noted in the application. Fountain's planner, Rochelle W. Lawandales, prepared a planning report dated October 2001. This document was submitted to the City for its consideration. This planning report provides technical information to support the proposed textural addition to the "Guidelines" (5.A.) for Planning District 5 and change to the FLUM. Ms. Lawandales describes the subject property, including the existing density for the approximate 9.163 acre site, as follows: "Approximately 6 acres [of the 9.163 acres] are zoned R-3 with a density of 13 units per acre. The remaining approximate 3 acres are designated as R-2 and R-2A. R-2A is medium density multi-family district allowing up to 8 units per acre and the R-2 allows up to 5 units per acre." (emphasis added.) (In 2001, the City approved a rezoning request for the six-acre parcel, changing the zoning from R-2A to R-3. According to the Comprehensive Plan, an R-3 designation authorizes a maximum density of 14 units per acre, not 13. It is uncertain why Ms. Lawandales used 13 units per acre.) The multiplication of approximate 9.163 acres times the noted (by Ms. Lawandales) densities per acre, yields a specific density of 96 residential units, which is the same number used in item 19 of Fountain's application. When this number (96) is subtracted from the maximum allowable development under the proposed designation (Plan Amendment) for the subject property, i.e., 118 units (9.163 X 13), the difference is 22, which purports to be the number of additional units which would be authorized if the proposed Plan Amendment is approved. Petitioners assert this number is incorrect and the record supports Petitioners' position in part. Prior to the EAR-based amendments to the City's Comprehensive Plan adopted in 1999, it appears that the zoning for the approximate north six acres of the subject property was R-2A, with a density of eight units per acre, which yields 48 units. The density for one acre was R-2A, which yields an additional eight units per acre. The remaining two acres were assigned a designation of R-2, which yields a density of five units per acre, or ten total units per acre for the two acres. When added together, the approximate 9.163-acre parcel yields a maximum allowable development for the subject property, pre-EAR- based amendment, of 66 units per acre, not 96 units per acre. This means that the maximum allowable additional development on the subject property under the existing land use designation, within the Planning District 8 pre-EAR-based amendments is 52, or 118 minus 66, not 22. Petitioners claim that the post-EAR based amendment zoning would allow five units per acre for the north six acres or approximately 31 units. (Presumably, this is based on Petitioners' contention that the density authorized for Planning District 8 for "post-EAR based amendment zoning" is five dwelling units per acre based on the following Planning District 8 statement regarding density: "Maximum density allowed shall not exceed five (5) dwelling units per acre, current multi- family zoning districts shall be limited to existing densities.") The zoning for the remaining three acres remained the same, which yields 18 units, for a total of 49 units, which would be allowed on the subject property without the Plan Amendment. According to Petitioners, this means that the Plan Amendment will authorize an additional 69 units, i.e., 118 minus 49, not the 22 units disclosed by Fountain. Fountain's representation that approval of the Plan Amendment would yield only an additional 22 dwelling units on the subject property was carried over to the Department's two (2) staff analyses, which were prepared in response to the proposed Plan Amendment. See Finding of Fact 43. Whether this revelation would have changed the City's, or the Department's, decisions is unknown, although the City Council and the Department were advised that the Plan Amendment authorized a maximum of 118 units. It is persuasive that the Department, in assessing whether the Plan Amendment is "in compliance," in part, considered the total maximum theoretical density, or 118 residential dwelling units, which may be authorized by the Plan Amendment on the subject property. Importantly, the maximum density of the proposed land use is expressly stated in the textural Plan Amendment, which was approved by the City, and found to be "in compliance" by the Department. Local Government Hearings Regarding the Plan Amendment On September 17, 2001, the Citizen's Advisory Committee (Committee) met to consider the Plan Amendment. The minutes reflect that the staff report mentioned in Finding of Fact 25 was presented to the Committee; that the Committee had several questions, which are noted in the minutes along with the responses; that Fountain gave a brief presentation using Ms. Lawandales' planning document referred to herein; and that several residents, including Ms. Kosher and Ms. Sutterfield, spoke in opposition. A motion to approve the request failed by a vote of four to two. On October 2, 2001, the Planning Commission (Commission) met to consider the proposed Plan Amendment. Fountain presented its position. (The Commission is the land planning agency for the City.) Ms. Lawandales also gave a presentation on behalf of Fountain. Several persons who are identified as having Cocoa and Rockledge addresses, appeared before the Commission. While some persons from Cocoa and Rockledge favored the proposal, the majority of the persons with Rockledge addresses opposed the project. Mr. McKnight, the City Manager, stated that the hearing before the Commission "did not require advertisement in the newspaper, as previously done; therefore, this too, was not an issue of concern, but that the property had been posted and all property owners within 500 feet were mailed a notice." Ms. Kosher and Ms. Sutterfield opposed the Plan Amendment. The Commission unanimously approved the Plan Amendment. On October 17, 2001, the City Council conducted a public hearing "to consider the request for Comprehensive Plan Amendment and cause the scheduling of a Transmittal Hearing." Ms. Kosher, Ms. Sutterfield and others opposed the Plan Amendment. Others supported the request. In response to concerns raised by Ms. Sutterfield regarding advertisements for this meeting and the Planning Commission meeting on October 2, City Manager McKnight responded that a newspaper advertisement is not required until the Transmittal Hearing. By unanimous vote, a motion to authorize a public hearing before the Commission on November 6, 2001, and a transmittal hearing before the City Council on November 7, 2001, was passed. On November 1, 2001, the City had published a "Notice of Change of Land Use" in "Florida Today," a newspaper of general circulation, published in Brevard County. This "Notice" advised the public of hearings to be held on November 6, 2001, before the Planning Commission and on November 7, 2001, before the City Council. Ms. Sutterfield received notice of the transmittal hearings by U.S. Mail prior to the hearings.1 On November 6, 2001, the Commission met once again to consider the Plan Amendment. The minutes of this public hearing reflect that "this was a transmittal public hearing." Local residents, including Ms. Kosher and Ms. Sutterfield, voiced their opposition to the Plan Amendment. The Commission voted in favor of the Plan Amendment by a vote of six to one. On November 7, 2001, the City Council met to consider the Plan Amendment. This transmittal hearing was held six days, not seven days, after the notice was published. Once again Ms. Kosher and Ms. Sutterfield opposed the Plan Amendment along with two other persons giving a Rockledge address. By unanimous vote, the City Council approved a motion to authorize transmittal of the Plan Amendment to the Department. This was the first of two transmittal hearings conducted by the City. The second was conducted on February 6, 2002, after timely notice was advertised. On February 6, 2002, the City adopted Ordinance No. 1266-2002, incorporating the Plan Amendment. Notice The City did not comply with the seven-day advertising requirement set forth in Section 163.3184(15)(b)1., Florida Statutes. See Conclusions of Law 101-102. It is concluded, however, that the "due public notice" procedures set forth in the City's Land Development Code do not apply. See Conclusion of Law 101. This is not fatal. Ms. Sutterfield and Ms. Kosher attended the November 6 and 7, 2001, transmittal hearings, as well as other hearings, both before and after these transmittal hearings, furnishing the City with their comments and objections at each hearing. Also, Ms. Sutterfield received notice of the transmittal hearings by U.S. Mail prior to the hearings. Ms. Kosher has been involved with this matter since November of 1999. Petitioners have shown no prejudice arising out of the City's non-compliance with the advertising/notice requirement for the transmittal hearings. The Department's Review of the Plan Amendment On November 15, 2001, the Department received the City's letter of transmittal with supporting documentation, including the proposed Plan Amendment. By Memorandum dated January 4, 2002, the Department "[s]taff has identified no potential objections or comments with the proposed amendments." With respect to the textural Plan Amendment to Planning District Policy 5.A., the Department staff stated: "The addition of this policy to Planning District 5 limits the potential growth of the parcel to 13 dwelling units per acre from the 14 now allowed in the Planning District. This is consistent with District 5 Mixed Use and Medium Density Residential Land Uses. Additionally the lower dwelling unit concentration in combination with the specific building set back regulations will work to buffer District 8 from the non-residential land uses in District 5." With respect to moving the approximate 9.163 acres subject property from Planning District 8 to Planning District 5, the Department staff noted: Moving the tract of land from Planning District 8 to Planning District 5 will allow for an additional 22 dwelling units to be developed on the land. The applicant is willing to enter into a binding development agreement during the rezoning phase with the City to ensure adequate buffering to adjoining properties, as well as eliminating the possibility of the property being used for commercial or manufacturing purposes. The analysis of existing public facilities provided shows the infrastructure is adequate to support the additional 22 dwelling units the proposed land use change would allow. The site is not home to any significant historic resources nor is it home to any endangered, threatened or species of special concern. The Department did not receive any negative comments from the Florida Department of Transportation, the Florida Department of State, the Florida Department of Environmental Protection, or the East Central Florida Regional Planning Council. The Department received several letters from citizens, objecting to the proposed Plan Amendment and summarized them as follows: "The residents state the high density residential development would be incompatible with the existing low density residential neighborhood. The residents opposing the amendment state it is spot zoning and will set a negative precedent for other developers. Several residents also mention the increase in traffic and how this would impact the safety of school children. The residents question the ability of the existing infrastructure will [sic] be adequate to serve the increased population. They also mention the insufficient notice given for the LPA meeting." On February 6, 2002, the City approved the Plan Amendment during a public hearing and, thereafter, sent the Department Ordinance No. 1266-2002, with supporting documents. Notice of this public hearing was published in the January 24, 2002, edition of The Reporter, published weekly in Brevard County, and a newspaper of general circulation. On March 11, 2002, the Department staff conducted a review of the Plan Amendment in order to prepare its notice of intent. The staff analysis reflects no comments or objections from the Department with respect to the Plan Amendment. On March 29, 2002, the Department had published "notice of its intent to find the Amendments to the Comprehensive Plan for the City of Rockledge adopted by Ordinance No. 1266-2002 on February 6, 2002, IN COMPLIANCE, pursuant to Sections 163.3184, 163.3187 and 163.3189, F.S." Thereafter, Petitioners filed a timely challenge to the Department's Notice of Intent. Petitioners' Challenges Petitioners contend that the Plan Amendment is not "in compliance," as defined in Chapter 163, Part II, Florida Statutes, because the Plan Amendment is not supported by adequate data and analysis; is not compatible with surrounding land uses; and is inconsistent with the City's Comprehensive Plan. Petitioners also argue that the Plan Amendment approves spot zoning or spot planning. Petitioners further contend that the City did not comply with statutory and City notice requirements prior to its transmittal hearing and, as a result, that the Plan Amendment is void ab initio. Data and Analysis Description of the Subject Property and Surrounding Area Fountain's property, approximately 9.163 acres, is rectangular in shape and is bounded on the north by, and directly abuts, Eyster Boulevard. This site is located in the geographic center of the City. Eyster Boulevard, abutting and to the north of the site and between Fiske Boulevard and Murrell Road, is a two-lane urban collector road (between Fiske Boulevard and Murrell Road), with a right-of-way width of 100 feet, and with a current Level of Service (LOS) of C, with a minimum acceptable LOS of E. (There are no traffic/transportation-related issues raised in this proceeding. Also, there is no evidence that the Plan Amendment will cause any reduction or deficiencies in the LOS for utilities.) Across Eyster Boulevard to the north of the site and extending west from Huntington Lane in Planning District 5, are industrial uses, mobile homes, apartment complexes, some commercial uses and Kennedy Middle School. The subject property is bounded on the west by an existing two-story, multi-family development, developed to eight units per acre, known as Woodhaven Apartments. The development of these apartments pre-dates the adopted EAR-based amendments. The apartments are located in Planning District 8, and will continue to be located in Planning District 8 if the Plan Amendment is approved. The Brevard County Association for Retarded Persons (BCARC), located west of Woodhaven, is a group home multi-family complex also located in Planning District 8, which has been developed at more than 25 units per acre. Development of this facility pre-dates the EAR-based amendments. A Brevard County enclave, consisting of a wide variety of uses, including commercial and manufacturing, is located east along Eyster Boulevard and west to Fiske Boulevard, and west of the BCARC. This enclave does not have a land use designation on the FLUM (nor is it within Planning District 8) because it is outside the jurisdiction of the City. (Objective 8.2 of the Comprehensive Plan states in part: "Any proposed development will be evaluated for its impact on adjacent local governments. ") The subject property is also bounded on the south by a Florida Power and Light (FPL) substation, within planning District 8, which has a R-2 zoning classification, five units per acre. There is a 100-foot FPL easement which runs east and west, directly south of the substation. This substation was in existence at the time of the adoption of the EAR-based amendments. Also, church property is located south of the 100 foot easement. The subject property is bounded on the east by, and directly abuts, Huntington Lane. Huntington Lane runs perpendicular north and south of Eyster Boulevard. Huntington Lane, south of Eyster Boulevard, which abuts the subject property, apparently carries no designation in the City's Comprehensive Plan, and is considered to be a local two-lane road. (Huntington Lane north of Eyster Boulevard is designated by the City in its Comprehensive Plan as a local road.) The right-of-way width for Huntington Lane adjacent to and east of the subject property is 50 feet. Immediately east of the site and adjacent to the Huntington Lane right-of-way, is vacant property of an approximate depth of 175 feet. This vacant land runs south to north and then east, abutting Eyster Boulevard to the south. For the most part, this vacant land has a density under the Comprehensive Plan of R-2A, which authorizes a density of eight units per acre. There is also vacant land to the east of the site and abutting the Huntington Lane right-of-way, which is due south of the rectangular vacant land, which has a density of R- 2, which permits five units per acre. The single-family subdivision (Pine Cove) is located to the east of the vacant land which abuts Huntington Lane. Petitioners reside in this single-family subdivision. (The maximum potential density for the subdivision allowed multi-family residential units, with eight units per acre. However, the developer opted to build single-family residential homes instead.) The predominant land use character of Planning District 8 is single-family residential. This includes the subdivision where Petitioners reside. The subject property has approximately 900 feet of frontage on Huntington Lane. The subject property is approximately 1,500 to 2,000 feet east of Fiske Boulevard, which is a roadway designated in the City's Comprehensive Plan as a four-lane divided minor arterial. (It is contemplated that Eyster will ultimately have five lanes. There are also existing intersection improvements at the corner of Huntington and Eyster.) The subject property is approximately one mile west of Murrell Road, which is a roadway designated in the City's Comprehensive Plan as a four-lane divided minor arterial. Both Fiske Boulevard and Murrell Road have a center turn lane with no islands. Prior to the proposed Plan Amendment, all the property within the City located south of and along Eyster Boulevard, between Fiske Boulevard and Murrell Road, was included in Planning District 8, except for the several parcels (referred to in this proceeding as "incursions") east of the subdivision, abutting Murrell Road. Also, prior to the proposed Plan Amendment, all of the property within the City located north of and along Eyster Boulevard, between Fiske Boulevard and Murrell Road, was included in Planning District 5. The incursions along Murrell Road are authorized by the City in its Comprehensive Plan. The incursions are contiguous to the residential dwellings and not separated by a 50 foot road right-of-way, as in the case of Huntington lane. However, these incursions are approximately one mile from the subject property and Petitioners' residences. These incursion areas along Murrell Road allow for Planning District 5 and Planning District 6 land uses pursuant to specific textural provisions set forth in the Comprehensive Plan for each of these planning districts. These textural provisions restrict Planning District 5 and Planning District 6 incursions in that area to a maximum depth of 630 feet west of Murrell Road, as well as provide other limitations on the types and intensities of development. (According to the Comprehensive Plan, the first 300 feet of the 630 feet can be developed at 14 units per acre, and the next 330 feet at eight units per acre. Also, "[r]esidential uses may be allowed to locate on the west side of Murrell Road to a depth of six hundred thirty (630) feet. Commercial uses may also be allowed to a depth of three hundred (300) feet.") The provisions for Planning District 6 incursions west of Murrell Road, as to densities and depth of development, are the same as those recited for Planning District 5 incursions on the west side of Murrell Road. The Planning District 5 and Planning District 6 incursions along Murrell Road predate the EAR-based amendments. Other than the incursions along Murrell Road, there have been no incursions of Planning District 5 into Planning District 8 until the Plan Amendment. The existing provisions covering Planning Districts 5 and 8 were the result of EAR-based amendments to the City's Comprehensive Plan adopted by the City in mid-1999. Planning District 8 was created by splitting the area from a then larger existing planning district.2 The City's Comprehensive Plan Planning Districts In its Comprehensive Plan, the City created eight planning districts. The boundaries and policies in the planning districts are fluid. Planning District 8, in which the subject property was located prior to the proposed Plan Amendment, is designated as the Central Rockledge Area. The "Area Objective" of this planning district is [t]o maintain and improve this area as a low and medium density residential area and insure that future development will not substantially alter or depreciate the existing character of the area. This planning district also authorizes, in part, the following types of land uses: Development within the district will be limited primarily to single-family detached dwellings and directly related land uses such as parks, schools, utilities, streets and other such activities whose primary purpose is to serve residents of the district. . . . Limited commercial, professional, and multi-family residential uses will be considered in appropriate locations based on severe compatibility and consistency tests. After due consideration by the city other zoning district [sic] shall be limited to existing use which range from R2A, R-3, TH, P1, C1, to C2, which may be changed and approved only if consistent with, and compatible to the intent or [sic] criteria of this district. The maximum density allowed in Planning District 8 "shall not exceed five (5) dwelling units per acre, current multi-family zoning districts shall be limited to existing densities. Any proposed zoning district changes shall be limited to a maximum of five (5) dwelling units per acre. Undeveloped areas west of Fiske Boulevard will be encouraged to be developed with a maximum of three (3) dwelling units per acre in order to protect the natural character of the land." Planning District 5 is designated as the Barton Boulevard Area. The "Area Objective" for this planning district is [t]o guide development in this area toward the establishment of a mixed-use area consisting of highly intensive mixed uses while maintaining compatibility with regional thoroughfares, local roads, municipal systems, and adjacent land uses. In part, "[d]evelopment in this district wall be limited to retail trade, business and professional offices, multiple family attached dwellings, public and semi-public service, . . . and other such activities that are compatible with and support the intent of this district." The density of new residential development in the Planning District 5 "is limited to a maximum of fourteen (14.0) dwelling units per acre. . . ." "Compatibility" is discussed in the Planning District 5 "Guidelines" as follows: Urban design guidelines shall be developed which address appropriate scale, materials, building orientation, signing, landscaping, detailing, and other physical features within the district. Adherence to the design guidelines shall be required to insure orderly development of the area and compatibility of uses within and adjacent to the district. Adequate vegetation, constructed buffers (fences, walls, berms, etc.) and/or open space will be used between different land uses. Compatibility, Suitability, and Urban Infill The Plan Amendment proposes the development of a maximum of 118 residential units, with a maximum density of 13 units per acre for the 9.163 acres. The site and the surrounding property to the east, south, and west are designated as "medium density residential" land uses on the FLUM. According to the Comprehensive Plan, a low density residential land use is restricted to a "density not exceeding three (3) dwelling units per acre." A medium density residential land use would include "a density greater than three (3) dwelling units per acre and not exceeding fourteen (14) dwelling units per acre." The site (as proposed) and the surrounding property are within the parameters of these measuring sticks, with the site (as proposed) at the upper end and the apartments (to the west) and the subdivision (to the east), as developed, at the lower end of the density spectrum. Yet both areas are within the medium density residential definition. In reviewing the Plan Amendment, the Department considered whether the uses proposed in the Plan Amendment in Planning District 5 were compatible with surrounding property, including the subdivision east of the site. In support, Mr. Wilburn testified in part: "We look at the surrounding area based on internal compatibility or compatibility in [sic] any other internal policies they may have as far as the movement or restriction of a planning district." Whether a proposed land use is compatible with surrounding land uses is a question of degree, rather than black and white. To this end, the Department examines what the comprehensive plan allows from a standpoint of maximum proposed density. On the other hand, the Department does not ignore the reality as to actual build-out on surrounding property. Consistency with the authorized land uses in Planning District 5 was also considered. As noted by Mr. Wilburn, "in this case Planning District 5 allows residential, industrial, commercial. Commercial or heavy industrial might be inconsistent next to residential, but as part of the plan amendment, they have limited it strictly to residential." However, the Department did not review the Plan Amendments for consistency with the Goals, Objectives, and Policies for Planning District 8 because the City is proposing to change the boundaries and make-up of Planning District 5, not Planning District 8. Here, as noted above, the issue of whether the proposed development as contemplated by the Plan Amendment is "compatible" with the surrounding property is largely a question of degree. For example, a nine-story high-rise, with 50 units per acre, next to a single-family residential area would most likely present compatibility problems. In this vein, Henry B. Iler, Petitioners' expert planner, opined that the proposed (by the Plan Amendment) three-story multi-family housing project would not be compatible with the single-family subdivision to the east of the site. Mr. Iler believes that going from five or eight units per acre to 13 units per acre takes the proposed development out of the existing character of the subdivision. Stated otherwise, Mr. Iler believes that with a density of eight units per acre, the land could be developed with single-family homes and "a few simple townhouses," whereas, with 13 units per acre, the land use would "move into the apartment/attached- housing product." For Mr. Iler, it is the latter described development which makes the proposed development "out of character" with the existing subdivision. The Department's expert planner, Mr. Roger Wilburn, and other experts, opined to the contrary. For Mr. Wilburn, compatibility is one of degree. In light of the nature of the surrounding property, and given the restrictions in the Plan Amendment, e.g., transition buffers (distance requirements in paragraph 5.A. and other provisions set forth in the Planning District 5 "Guidelines," and the restriction to residential use only, it is at least fairly debatable that the Plan Amendment, authorizing the development of the 9.163 acres as residential, with a maximum density of 13 units per acre, is "compatible" with the surrounding property and is not otherwise inconsistent with the Comprehensive Plan. It is also at least fairly debatable that the Plan Amendment is "suitable" to the area. (For example, there are no environmental, topographical, or soil factors at issue which might make the land unsuitable for its intended use.) The subject property may also be considered urban infill as it is in the middle of an urban area, served by existing urban services. The Plan Amendment seeks approval of residential development which is functionally related to surrounding property and is creating a compact development.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by the City of Rockledge in Ordinance No. 1266-2002 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2002.
The Issue The issue to be determined in this case is whether the City of St. Augustine’s proposed amendment to its Comprehensive Plan, adopted via Ordinance 2015-03, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact Petitioner is an individual who owns property and resides in the City near the property that is the subject of the proposed amendment. Respondent City of St. Augustine is a municipality in St. Johns County, which has adopted a comprehensive plan pursuant to chapter 163, which it amends from time to time. Intervenor St. Augustine Lighthouse and Museum, Inc., is a not-for-profit Florida corporation, which owns approximately 6.5 acres of property located at 100 Red Cox Drive, St. Augustine, upon which the historic St. Augustine Light Station is located. St. Johns County, which previously owned the lighthouse property, conveyed the property to Intervenor in 2014. The lighthouse property was zoned “Government Use” while the County owned the property, which is a zoning category that requires government ownership. When the property was conveyed to Intervenor, it became “non-conforming” because it is now privately owned. Under the City’s Land Development Code, additions, modifications, reconstruction, and repairs of non-conforming structures and uses are restricted. These restrictions are an inconvenience and impediment to the periodic reconstructions and repairs required to maintain and improve the lighthouse tower and its associated historic structures. To remove the non-conforming status of the lighthouse property, Intervenor considered various options for rezoning the property. The best zoning district match was determined to be “Maritime Use” because it included “maritime museum” among the allowed uses. The Maritime Use zoning district is listed as an implementing zoning district under the future land use designation Medium Density Residential Mixed Use in the Comp Plan. Therefore, Intervenor applied for a small-scale (under ten acres) comprehensive plan amendment to amend the FLUM to change the land use designation for the lighthouse property from Recreation/Open Lands to Medium Density Residential Mixed Use. The amendment includes a number of special limitations that restrict the kind of development that can occur on the lighthouse property, including: (a) limiting the use of the property to maritime museum; (b) maximum 20 percent lot coverage; maximum individual building footprint of 7,500 square feet; large building setbacks, including setbacks of up to 190 feet to protect the Maritime Hammock in the southwestern corner of the property and a 120-foot-deep “viewshed” in front of the lighthouse tower; (e) review of any development proposal by the State Historical Preservation Officer (SHPO) and finding of “no adverse effect” by the SHPO as a condition precedent to any City development approval; and (f) a reverter of title to the County if Intervenor ceases to use the property for historic preservation. Petitioner expressed concern about the number of properties in his neighborhood that are still on septic tanks. However, whether the City should extend its sewer lines to serve Petitioner’s property is an issue that is irrelevant to the validity of the proposed amendment. To the extent Petitioner attempted to tie the existing septic tanks to the issue of whether the proposed amendment is consistent with public infrastructure provisions of the Comp Plan, he failed to show an inconsistency. The lighthouse property is already served by the City’s wastewater system. Furthermore, the proposed amendment would reduce the uses allowed under the existing land use designation for the lighthouse property, which reduces potential future demand on the wastewater system. Petitioner is also concerned about the lack of sidewalks, “traffic controls,” and stormwater management capacity. However, Petitioner did not demonstrate that the proposed amendment increases the need for sidewalks, traffic controls, and stormwater management. The more persuasive evidence shows the opposite, that the proposed amendment and its development restrictions reduce the need. For example, the proposed amendment eliminates residential densities allowed under the current FLUM designation. There is parking provided on the lighthouse property and visitors to the lighthouse are not allowed to park on adjacent streets. Signage at the lighthouse property directs departing visitors away from Petitioner’s neighborhood and the nearby elementary school. As an educational exhibit on the lighthouse property, small traditional wooden boats have been built by volunteer craftsmen using only hand tools. Petitioner contends this is an industrial use, which is not allowed under the proposed land use designation. However, construction by handcraft in this manner is not an industrial activity. It is an appropriate use in conjunction with a maritime museum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the City of St. Augustine Plan Amendment 2015-03 is in compliance. DONE AND ENTERED this 16th day of July, 2015, 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 16th day of July, 2015. COPIES FURNISHED: Edward Ruben Anderson 60 Magnolia Drive St. Augustine, Florida 32080 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. 780 North Ponce de Leon Boulevard St. Augustine, Florida 32084 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue in this case is whether the land use designation placed on the property of intervenors is consistent with the goals, policies and objectives of the City of Jacksonville comprehensive plan.
Findings Of Fact Background This controversy involves a challenge to the City of Jacksonville 2010 Comprehensive Plan (Plan) by intervenors, Sybil L. Davis, Katherine T. Dekle, and Dr. James A. Acree, all residents and property owners in Duval County, Florida. The parties agree that intervenors are affected persons and thus have standing to pursue their claims. Intervenors contend generally that the land use designation given to their respective properties is inconsistent with other parts of the Plan and should be changed. If the requested relief is granted, intervenors would be able to develop their properties in a different manner than is now permitted under the Plan. The proposed Plan was first submitted by respondent, City of Jacksonville (City), to petitioner, Department of Community Affairs (DCA), on March 19, 1990. The DCA is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Florida Statutes. The City is a local government required to adopt a comprehensive plan pursuant to chapter 163. The proposed plan was the City's first attempt at meeting the compliance requirements established in that chapter. Under the law, the DCA is required to review all proposed plans for compliance with applicable statutes and rules. In that vein, besides its own in-house review, the DCA received comments from the Department of Environmental Protection and the Department of Transportation (DOT), considered such comments, and where appropriate, incorporated those views into its Objection, Recommendation and Comment Report (ORC) issued on July 10, 1990. The ORC contains the DCA's objections and comments concerning the Plan as well as recommendations which address those concerns. After considering the ORC, the City adopted a revised Plan on September 11, 1990, by Ordinance No. 90-794-380, which was then transmitted to the DCA. On November 9, 1990, the DCA issued its Statement of Intent to Find Comprehensive Plan Not in Compliance. After negotiations between the two parties, the City agreed to adopt remedial amendments to its Plan. This was accomplished by Ordinance No. 92-925-1405, effective January 22, 1993. Thereafter, on February 26, 1993, the DCA issued a Cumulative Notice of Intent to Find the Plan, as amended, in compliance with the law. As a consequence of this action, the interests of the City and DCA are aligned in this proceeding. Intervenors, however, consider the Plan to be internally inconsistent as to their respective properties and thus not in compliance with the law. It should be noted that during the local hearing process before the City, intervenors' requests to have their land use designation changed were denied. The Davis-Dekle Property Both Davis and Dekle own property which fronts on Southside Boulevard, a major arterial highway that runs in a north-south direction for ten to fifteen miles between Atlantic and Beach Boulevards. It consists of two northbound lanes, a divider (grass) median, and two southbound lanes. In addition, a twenty-foot service road runs along the outside of each roadway and is separated from the main roadway by a grass median. The highway right-of-way is 200 feet wide. This right-of-way has existed since at least the 1940's while the service roads were built in the 1950's. Davis owns two parcels of property on Southside Boulevard, also known as State Road 115. The first parcel, which is located at 2351 Southside Boulevard, is a vacant lot measuring 100 feet wide by 200 feet deep. The lot was purchased in 1987 with the intention of eventually converting the property to commerical use. A year later, Davis purchased a 1,000 square foot home located at 2615 Southside Boulevard. The house sits on a lot measuring approximately 85 feet wide by 200 feet deep. Although she currently resides in the home, Davis also intends to convert this property to commercial use if her appeal is successful. Both lots sit on the east side of Southside Boulevard between Atlantic and Beach Boulevards. Dekle's property is located at 2710 Southside Boulevard and lies on the west side of the street between Atlantic and Beach Boulevards. Dekle purchased the property in 1947 and has lived there for almost thirty years. The lot measures approximately 100 feet wide by 208 feet deep. Intervenors' properties are located in what is known as Southside Estates, a subdivision developed soon after World War II. The neighborhood surrounding their property is residential. Indeed, some 115 single-family homes are located on Southside Boulevard. Thus, the area historically has been a residential area since the 1940's and the predominant land uses along both sides of Southside Boulevard are single-family residences. Under the Plan, intervenors' properties are included in an area designated as "Low Density Residential," and thus this designation would bar intervenors from converting their properties to commercial use. "Low Residential Density" is defined in the future land use element of the Plan as follows: This category permits housing developments in a gross density range of up to seven (7) dwelling units per acre when full urban services are available to the site. Generally, single family detached housing will be the predominant land use in this category, although mobile homes, patio homes and multi-family dwellings shall also be permitted in appropriate locations. Minimum lot size shall be half acre per dwelling unit when both centralized potable water as well as wastewater are not available. The lot size shall be reduced to 1/4 acre per dwelling unit if either one of these services are not available. As noted above, intervenors' properties lie on Southside Boulevard between Atlantic and Beach Boulevards. The distance between these two latter roadways is approximately two miles. There is a major node of commercial development at the intersection of Southside and Atlantic Boulevards and a smaller commercial node at the intersection of Southside and Beach Boulevards. These uses, which extend approximately one-third of the distance between Atlantic and Beach Boulevards, are predominately offices, with the exception of more intense commercial uses near the intersection with Atlantic Boulevard. The southernmost extent of the commercial uses is approximately six or seven blocks north of the Dekle property. Intervenors complain that because of heavy traffic found on Southside Boulevard during the weekdays, their property should not carry a low residential density classification. More specifically, between 2:00 p. m. and 6:00 p. m. weekday afternoons, traffic backs up for more than a mile on the southbound lanes of Southside Boulevard between Atlantic and Beach Boulevards while there is a similar traffic backup in the northbound lanes during morning rush hours. This is confirmed by the fact that the roadway is functioning at a level of service "F," which means arterial flow is at "extremely slow speeds" and "intersection congestion" is likely at critical signalized locations. The DOT considers the minimum acceptable level of service to be level of service "D." Traffic counts, measured in average daily trips, are projected to reach 40,871 by 1995 at a point on Southside Boulevard 100 feet south of Atlantic Boulevard and 51,089 by the year 2010. Intervenors agree, however, that the service roads, on which their properties front, flow smoothly and are lightly traveled. Because intervenors' homes are located at the front of their lots closest to the service roads, they experience vehicle noise which affects their ability to watch television, sleep or carry on other normal activities unless windows and doors are closed at all times. Odors and fumes generated by the nearby traffic also require that windows and doors be shut at all times. Unless they retreat to the rear of their lots while outside their homes, they cannot escape the traffic fumes. In view of the foregoing condition, intervenors contend that a change in land use designation from low density residential to commercial is appropriate. "Commercial" is described in the future land use element of the Plan as follows: This category is intended to provide for all types of sales and services activities, such as retail trade, personal and professional services and storage, offices, hotels, motels, entertainment, and amusement facilities. Commercial recreation and entertainment activities, such as amusement parks and marinas, are also allowed in this category. Multi-family uses, when developed as part of an integrated mixes use project, are also permitted consistent with the Medium Density Residential (MDR) and High Density Residential (HDR) plan category description. The Plan includes five types of commercially dominated land use categories: residential-professional-institutional, neighborhood commerical, community/general commercial, regional commercial, and central business district. The primary uses range from a small convenience store, laundry/dry cleaning shop to a large shopping center or a multi-story office building. In considering intervenors' request to change the proposed land use to commercial, the City looked at the Greater Arlington Plan (an earlier land use plan completed in 1985), the existing use of the land, and the existing zoning. It also considered the general character of the area and the fact that most homes were graded in an "A" condition and were structurally sound. It should be noted here that the DCA did not raise any concerns over the proposed land use classification in its ORC report, nor has it subsequently posed any objection. In determining the appropriate land use classification for intervenors' properties, the Plan is the primary document to be used to guide the City's future growth and development. The future land use and housing elements of the Plan contain goals, objectives and policies which bear directly on this issue. More specifically, the following goals, objectives and policies found in the future land use and housing elements of the Plan support the classification given to intervenors' properties: Future Land Use Element GOAL 1 To ensure that the character and location of land uses optimize the combined potentials for economic benefit and enjoyment and protection of natural resources, while minimizing the threat to health, safety and welfare posed by hazards, nuisances, incompatible land uses and environmental degradation. Objective 1.1 Ensure that the type, rate, and distribution of growth in the City results in compact and compatible land use pattern, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policy 1.1.1 The City shall ensure that all new development and redevelopment after the effective date of the 2010 Comprehensive Plan is consistent with the Future Land Use Map series, and textual provisions of this and other elements of the 2010 Comprehensive Plan, as provided in Chapter 163 (Part II), F.S. 1.1.8 By April 1, 1991, require that all new non-residential projects be developed either in nodal areas, in appropriate commercial infill locations, or as part of mixed or multi-use developments, as described in this element. GOAL 2 To enhance and preserve for future generations geographic areas with unique economic, social, historic or natural resource significance to the City. GOAL 3 To achieve a well balanced and organized combination of residential, non-residential, recreational and public uses served by a convenient and efficient transportation network, while protecting and preserving the fabric and character of the City's neighborhoods and enhancing the viability of non-residential areas. Issue: Residential Development Patterns The neighborhood is the functional unit of residential development. There is a need to protect existing, viable neighborhood units and the neighborhoods that will emerge in the future. However, much newer residential development occurs as enclaves, with little or no functional linkage to surrounding areas. Unplanned low density development has become a familiar land use pattern in Jacksonville as new subdivisions have been developed further and further out, away from the existing urban area. * * * Objective 3.1 Continue to maintain adequate land designated for residential uses which can accommodate the projected population and provide safe, decent, sanitary and affordable housing opportunities for the citizens. Protect single-family residential neighborhoods by requiring that any other land uses within single-family areas meet all applicable locational criteria of the 2010 Comprehensive Plan and subsequent Land Development Regulations. Policies 3.1.2 The City shall eliminate incompatible land uses or blighting influences from potentially stable, viable residential neighborhoods through active code enforcement and other regulatory measures. * * * 3.1.7 The City shall give high priority consideration to the provision of affordable housing in land development and funding decisions, especially those made relating to public/private cooperative efforts in which the City is participating. * * * Issue: Commerical and Industrial Development Patterns * * * Despite a significant increase in the number of planned centers approved in recent years, little change has occurred in the pattern of strip commerical uses lining the City's arterial and collector roadways. This development pattern is typically inefficient, unsafe, and aesthetically unattractive. It results in multiple curb cuts, sometimes up to 50 per mile, thereby reducing the traffic carrying capacity of highways while at the same time increasing the potential for accidents. With a clutter of signs of all sizes, shapes, color, and design, the appearance of these areas is not only unsightly, it is also distractive for traffic on the highway and can, therefore, be dangerous. Another problem relating to strip commercial uses has developed as the commercial market has begun to overbuild during the recent national economic expansion cycle. Commercial retail and office space has remained in an over-supply condition (indicated by vacancy rates over 15 percent) for the past several years,, and as a result, new space has come on line at square footage costs that create strong competition with existing space. This competitive market results in relocations of existing businesses to newer projects, leaving many older commercial buildings semi-vacant and with little investment benefit to the owners. Without the hope of a reasonable economic return, owners may not invest funds to maintain their structures, and inevitably, commercial blight begins to develop. For these reasons, new commercial development will be strongly encouraged to occur in nodes or clusters in the form of office parks, shopping centers and mixed use developments. Strip commercial expansion along arterial streets will be discouraged, except for commercial infill of uses such as hotels, motels, restaurants, auto sales and service, mobile home sales, convenience stores and gas stations, which shall continue to locate along highways. * * * Policies The City shall promote, through the use of development incentives and other regulatory measures, development of commercial and light/service industrial uses in the form of nodes, centers or parks, while discouraging strip commercial development patterns, in order to limit the number of curb cuts and reduce conflicts in land uses, particularly along collectors and arterials. The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. * * * The City shall permit expansion of commercial uses adjacent to residential areas only if such expansion maintains the residential character of and precludes non- residential traffic into adjacent neighborhoods. The City shall require neighborhood commercial uses to be located in nodes at the intersections of collector and arterial roads. Prohibit the location of neighborhood commercial uses interior to residential neighborhoods in a manner that will encourage the use of local streets for non-residential traffic. The City shall implement the locational criteria of this element for commercial and industrial uses consistent with the character of the areas served, availability of public facilities, and market demands. * * * Housing Element GOAL 1 The City shall develop stable and definable neighborhoods which offer sale, sound, sanitary housing that is affordable to all its present and future residents. Issue: Neighborhood Stabilization Urban housing is a function of neighborhood. Stable neighborhoods encourage residents to maintain, upgrade, build and buy housing resulting in a sound, diverse housing stock. * * * There is an inadequate number of organizations committed to the revitalization and cohesiveness of Jacksonville's neighborhoods. Preservation is relatively easy and inexpensive compared to redevelopment and will prevent widespread blight and deterioration in convenient residential locations close to transportation, schools, shopping and medical facilities. * * * Objective 1.4 Preserve, protect, and stabilize residential neighborhoods keeping the maximum number of dwelling units in the housing supply, as measured by the implementation of the following policies. * * * Policy * * * 1.4.5 Commercial and other non-residential uses lying adjacent to residential neighborhoods should not be expanded into residential neighborhoods unless: Such uses enhance or do not diminish or degrade the residential character of the neighborhood, and The expansion shall not result in a reduction of the level of service on the residential streets; * * * One of the overriding policies contained in the Plan was a desire to maintain the City's vibrant neighborhoods. The future land use element addressed those concerns by discouraging strip commercial development and promoting instead the development of commercial land uses at major intersectional nodes. Strip commercial development often has a "cancerous" effect on nearby residential land uses. Problems associated with strip commercial development include encroachment on adjacent residential neighborhoods, increased noise and traffic in residential areas, undesirable aesthetic appearances, and inefficient traffic flow along the roadways on which strip commercial development occurs. The Southside Estates subdivision is vulnerable to encroachment because of the grid pattern of streets, which increases the likelihood of non- residential traffic passing through the subdivision. If lots facing Southside Boulevard were converted to commercial land uses, traffic would likely increase on the neighborhood streets. The neighborhood is a stable neighborhood with a large inventory of homes in good condition. The current noise and traffic along Southside Boulevard has not impaired the neighborhood stability, as the character and condition of homes along Southside Boulevard is comparable with that in the interior of the neighborhood. The residential area in question constitutes an "established neighborhood" as that term is defined in the Plan. There, the term is defined as follows: A neighborhood where platted, or otherwise divided, land has been at least eighty percent developed and occupied without substantial deterioration since such development. The residential area surrounding intervenors properties provides a significant supply of affordable housing to both home buyers and renters. Preservation of that housing stock is preferable to development of additional housing elsewhere. Therefore, maintenance of this neighborhood for residential use supports the housing element of the Plan. As noted earlier, Southside Boulevard is classified as a principal arterial roadway in the Plan. It currently serves as a major north-south roadway. The State has planned and partially constructed State Road 9A, a limited access facility located to the east of Southside Boulevard. When completed, State Road 9A will be the eastern circumferential link to Interstate 95 north and south of the City. State Road 9A will accommodate some of the through traffic currently using Southside Boulevard and will reduce the volume of truck traffic on Southside Boulevard. Contrary to intevenors assertion, conversion of residential properties along this portion of Southside Boulevard would result in increased traffic along the main roadway as well as the service roads. It would also result in an increased number of vehicles entering onto Southside Boulevard. This would further exacerbate an already unacceptable level of service along that road. Southside Boulevard is not a limited access facility as defined in the future land use element of the Plan. Therefore, policy 3.1.12 within that element, which permits residential land use designations adjacent to limited access highways when the negative impact of the roadway can be mitigated, is not applicable. Policy 3.2.2 of the future land use element provides as follows: The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. "Infill development" is defined in the future land use element definitions as "development on scattered vacant sites within the urbanized/suburbanized area of the community." "Commercial infill" is defined as "commercial development of the same type and grade as adjacent commercial uses that is sited between those uses in existing strip commerical areas." Reclassification of this part of Southside Boulevard to a commercial land use would not consitute commercial infill development, as such development would not be occurring on scattered sites or vacant sites, nor are the adjacent uses commercial ones. The area in question cannot be considered a "blighted area" as that term is defined in the future land use element of the Plan. Policy 1.3.1 of the future land use element directs that the City require all non-residential development located along a designated major arterial to construct a service drive which connects to the service drive of adjacent properties, unless otherwise approved by the city traffic engineer. Such a service drive does not exist along this portion of Southside Boulevard. However, the same policy does not require that all property fronting a service drive be classified for commerical use. Further, in the event such service roads are provided in new locations, the policy does not require such roads to be constructed at City expense. Reclassification of intervenors' properties to commercial uses would constitute an expansion of commercial uses adjacent to residential areas. Policy 3.2.4 of the future land use element permits such expansion only if it maintains the residential character of and precludes non-residential traffic into adjacent neighborhoods. Establishment of commercial uses on the property would be a negative influence which would begin the erosion and decay of the surrounding neighborhood. Because of the street grid pattern, it would be difficult, if not impossible, to preclude non-residential traffic from utilizing streets in the adjacent neighborhood. Table L19 of the future land use element is a land use acreage allocation analysis. That table depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. The amount of acreage allocated to commerical land use categories is 185.90 percent of the projected need while the acreage allocated to residential land use categories is 127.99 percent of the projected need. Therefore, the land use classifications found on the map series result in a greater overutilization of commercial land use acreage than that found with respect to residential land use acreage. The City's classification of intervenors' properties is similar to that along comparable areas elsewhere in the City. For example, State Road 13 (San Jose Boulevard/Hendricks Avenue) north from Baymeadows Road is characterized by predominately single family residential land uses interrupted by several nodes of commercial development. Like Southside Boulevard, San Jose Boulevard is a four-lane roadway carrying comparable volumes of traffic. This portion of San Jose Boulevard contains a parking lane, but it does not have parallel service roads and the overall width of the right-of-way is narrower than that found on Southside Boulevard. Therefore, homes along this portion of San Jose Boulevard are generally located as close to the right-of-way as those along Southside Boulevard and are closer to the traffic lanes themselves. Traffic counts are comparable, but projections for State Road 13 are as high as 78,426 by the year 2010. Despite this traffic, this area remains a viable, stable residential area. In summary, then, intervenors' properties should be classified as low residential density. This classification is consistent with and supported by the Plan's goals, objectives and policies. Therefore, intervenors' properties should not be reclassified as commercial. The Acree Property Intervenor Acree and his brother, who are both licensed veterinarians, own approximately 460 acres in the northwest portion of the county located on Acree Road (formerly Thomas Road). Of that amount, 360 acres were purchased in 1956 when the brothers started a wholesale dairy as an investment. Three adjoining parcels totaling 116 acres were later purchased as the dairy operation expanded. In 1989, the dairy animals were sold and Acree planned to sell the farm and retire. At that time, he hired civil engineers to develop a conceptual site plan for the purpose of ascertaining the value of his land for development under existing zoning regulatioins. Since the Plan changes his classification and impacts his ability to develop the property, Acree has brought this appeal for the purpose of challenging the land use classification given to his property. The Acree property is designated "agricultural" under the Plan. The allowable densities in an agricultural land use category are contained in the plan category descriptions of the future land use element and provide as follows: One dwelling unit (D.U.) per 100 acres of land for lots of record of 640 acres (section) or more in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 40 acres of land area for lots of record of 160 acres (1/4 section) up to but not including 640 acres (section) in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 10 acres of land area for lots of record of 40 acres and up to but not including 160 acres at the time of adoption of the 2010 Comprehensive Plan. One dwelling unit (D.U.) per 2.5 acres of land for single lots of record or the combination of contiguous lots of record under common ownership up to but not including 40 acres which were existing on September 21, 1990. In the event such land area equals 40 acres or more, the allowable number of dwelling units shall be determined according to paragraph (iii) above. Notwithstanding this requirement, one dwelling unit shall be permitted on any nonconforming lot of record which was existing on September 12, 1990. Development on such nonconforming lots of record shall be subject to all other plan provisions. By his petition, Acree seeks to have his property classified as rural residential. This classification is defined in the plan category descriptions of the future land use element as follows: This category is intended to provide rural estate residential opportunities in the suburban area of the City. Housing development at a net density range of up to two (2) dwelling units per acre will be allowed when community scale potable water and sewer facilities are available to the site, and one (1) unit per net acre when the site will be served with on-site water and wastewater facilities. Generally, single- family detached housing and mobile homes will be the predominant land uses in this category. In addition, agriculture, silviculture, and similar other uses may be permitted as secondary uses subject to the standards and criteria in the Land Development Regulations. If the petition is approved, Acree would be allowed to develop his property with a much higher density, and the value of the land would increase correspondingly. Prior to the adoption of the plan, Acree's property was zoned OR (agriculture). Under then-existing regulations, a residential density of one dwelling unit per acre of land was authorized. All other rural land in the county could be utilized for residences in one and one-half acre minimum size lots. This compares with current restrictions described in finding of fact 31. Acree's property is 3 miles by roadway (but only 2.4 linear miles) from the nearest available water and sewer utilities. The property is 1.5 miles from the nearest property classified as rural residential on the future land use maps. Presently, the farm is surrounded by timberland. In originally finding the City's Plan not in compliance, the DCA's concerns included the plan's projections of agriculture land use, its vested development rights, and urban sprawl considerations. As a consequence, in developing the Plan, one of the factors considered by the City was the discouragement of urban sprawl. That term is defined in the future land use element of the Plan as follows: A terminology commonly used to describe certain kinds of growth and development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas without provisions for utilities and services. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) strip or ribbon development; and (3) large expanses of low-density, single- dimensional developments. This corresponds to the description given the term by the DCA in a technical memorandum issued by the DCA in 1989. The future land use element of the Plan contains the following objective and policies to discourage urban sprawl: Objective 1.1 Ensure that the type, rate and distribution of growth in the City result in compact and compatible land use patterns, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policies * * * 1.1.16 Prohibit scattered, unplanned urban sprawl development without provisions for facilities and services at levels adopted in the 2010 Comprehensive Plan in locations inconsistent with the overall concepts of the Future Land Use Element. * * * 1.1.18 Limit urban scale development to the Urban and Suburban areas of the City, as identified in the 2010 Comprehensive Plan, in order to prevent urban sprawl, protect agriculture lands, conserve natural open space, and to minimize the cost of public facilities and services, except for urban villages and other large scale mixed use developments which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. * * * 1.1.20 Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system, and discourage urban sprawl. * * * In addition, leapfrog development is defined in the future land use element as follows: An urbanizing growth pattern which occurs when new land development is sited away from 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. To discourage urban sprawl, the City has incorporated into its Plan a provision dealing with public facilities. This provision, which is found in the capital improvements element, establishes areas in which the City would provide public services during the time frame of the Plan. They include the "urban area," where urban services already exist or are programmed to be provided within a short time; the "suburban fiscal commitment area" where services such as water and sewer are in place or planned to be installed within five years; the "suburban non-fiscal commitment area," which is that portion of suburban area in which the City does not commit to providing water and sewer services witin the next five years; and the "rural area," which is predominately undeveloped and unplatted and comprises those areas not intended to be developed by the year 2010. Acree's property is located in the rural area as depicted in the capitol improvement element of the Plan. The sanitary sewer sub-element of the public utilities element of the Plan is also relevant to this issue. It provides in part as follows: Goal 1 The City shall provide for economically and environmentally sound wastewater collection and treatment systems which . . . promote beneficial land use and growth patterns and . . . discourage urban sprawl. Objective 1.1 In order to discourage urban sprawl and correct existing deficiencies, the City shall provide regional wastewater facilities in concert and conformance with the Public Facilities Map as adopted in the Capital Improvement Element. Policies * * * 1.1.5 The City shall not invest in sanitary sewer facilities in the Rural area as defined in the Future Land Use and Capital Improvements Elements, except where necessary to protect the public health and safety. The potable water sub-element of the public utilities element of the Plan contains comparable objectives and policies with regard to providing regional water facilities. The above provisions do not prevent a developer from paying the cost to extend such services to his property. Any facilities installed by the developer, however, must be maintained by the City after such facilities are turned over to the City by the developer. The plan category descriptions found in the Plan for agriculture land uses established a hierarchy based upon the size of the lot of record. The intent of the varying densities is to provide flexibility to owners of smaller lots of record while encouraging large land owners to maintain agricultural land uses, rather than converting to residential development. By law, certain development approved prior to the adoption of the Plan has vested rights. Local governments have included vesting language in their comprehensive plans. Some governments have elaborated upon vesting language to allow exceptions based upon density. The language regarding densities in agriculture land uses found in the Plan is similar to language found in other local government plans. Most plans with density exception language also contain provisions combining contiguous lots of record under common ownership. The density provisions found in the Plan do not make it inconsistent with Chapter 163, Florida Statutes, the DCA's rules, or the state comprehensive plan. At its closest point, Acree's property lies just 400 feet from the Nassau County line. He established that most of the land in Nassau County just north of the Duval County line, and just a short distance from his own, can now be developed at a residential density of one dwelling unit per acre while some can be developed at a residential density of one dwelling unit per one-half acre. He also established that all agriculture land in Nassau County can be developed with a residential density of one dwelling unit per twenty acres for tracts of 320 acres and greater regardless of the amount of land in single or contiguous ownership. However, there is nothing in chapter 163 or the agency's rules which require adjacent land uses in adjoining counties to be identical. Put another way, decisions made in Nassau County with respect to its comprehensive plan are not binding on Duval County. Therefore, the City was not required to classify Acree's property as rural residential merely because an adjoining county had classified nearby land in that manner. Redesignation of Acree's property from agriculture to rural residential would not constitute "infill" development. This is because of the property's distance from other urban development in the county and distance from existing water and sewer servcies. Given the location of Acree's property, reclassification to rural residential land would constitute leap frog development and promote urban sprawl as those terms are defined in the Plan. This is true even though nearby land in Nassau County is considered urban sprawl by City planning officials. Finally, preservation of agriculture land uses is a state concern, especially in areas not projected to be served by water and sewer services. Testimony established that there are several areas in Duval County classified as rural residential which constitute urban sprawl. With the exception of one such area, however, all areas reflect existing residential developments already in place. Table L19 of the future land use element of the Plan is a land use acreage allocation analysis which depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. Table L19 indicates that the amount of the acreage allocated to the rural residential land use category is already 194.94 percent of the projected need. In summary, then, in order for the Plan to be internally consistent, Acree's property should be classified as agriculture. This will ensure that development occurs in a compact pattern, which is more cost efficient and compatible with the requirements of the Plan. Therefore, the property should not be reclassified as rural residential since this would be contrary to the goals, objectives and policies within the Plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Plan to be in compliance with the law. DONE AND ENTERED this 24th day of January, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7496GM Petitioners Davis and Dekle: Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 8. 10-11. Partially accepted in finding of fact 10. 12-13. Partially accepted in finding of fact 11. Petitioner Acree: Partially accepted in finding of fact 30. Rejected as being irrelevant. 3-4. Rejected as being a conclusion of law. 5. Partially accepted in finding of fact 35. 6-7. Rejected as being irrelevant. See finding of fact 42. 8. Partially accepted in findings of fact 35 and 44. 9. Partially accepted in finding of fact 42. 10. Partially accepted in finding of fact 33. 11. Partially accepted in finding of fact 30. 12. Partially accepted in finding of fact 42. 13. Partially accepted in findings of fact 31 and 41. 14. Partially accepted in findings of fact 32 and 42. 15. Partially accepted in findings of fact 35 and 43. DCA and the City: 1-2. Partially accepted in finding of fact 1. 3-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 7. 12. Partially accepted in finding of fact 6. 13. Partially accepted in finding of fact 5. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18-19. Partially accepted in finding of fact 8. 20-21. Partially accepted in finding of fact 4. 22-24. Partially accepted in finding of fact 13. 25. Partially accepted in finding of fact 14. 26. Partially accepted in finding of fact 8. 27-28. Partially accepted in finding of fact 12. 29. Partially accepted in finding of fact 14. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 16. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 18. 34. Partially accepted in finding of fact 19. 35. Partially accepted in finding of fact 10. 36. Partially accepted in finding of fact 20. 37. Partially accepted in finding of fact 10. 38. Partially accepted in finding of fact 21. 39. Partially accepted in finding of fact 22. 40. Partially accepted in finding of fact 23. 41. Partially accepted in finding of fact 24. 42. Partially accepted in finding of fact 25. 43. Partially accepted in finding of fact 26. 44. Partially accepted in finding of fact 27. 45. Partially accepted in finding of fact 28. 46. Partially accepted in findings of fact 30 and 42. 47. Partially accepted in finding of fact 31. 48. Partially accepted in finding of fact 34. 49. Partially accepted in finding of fact 32. 50. Partially accepted in finding of fact 42. 51-53. Partially accepted in finding of fact 35. 54. Partially accepted in finding of fact 37. 55-56. Partially accepted in finding of fact 38. 57. Partially accepted in finding of fact 39. 58. Partially accepted in finding of fact 46. 59-60. Partially accepted in finding of fact 36. 61. Partially accepted in finding of fact 42. 62. Partially accepted in finding of fact 43. 63. Partially accepted in finding of fact 42. 64. Partially accepted in finding of fact 43. 65. Partially accepted in finding of fact 41. 66. Partially accepted in finding of fact 45. 67. Partially accepted in finding of fact 44. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Katherine A. Castor, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Michael A. Altes, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 James A. Acree 5031 Dianwood Drive East Jacksonville, Florida 32210 Tracey I. Arpen, Jr., Esquire 1300 City Hall 220 East Bay Street Jacksonville, Florida 32202
The Issue Ultimately at issue in this case is whether certain comprehensive plan amendments, adopted by Lee County Ordinance No. 94-30, are "in compliance" with Chapter 163, Part II, Florida Statutes. As reflected in the Preliminary Statement, many of the subordinate issues raised by parties seeking to have the plan amendments found to be "not in compliance" have been withdrawn, and others have been stricken as not timely raised or for other reasons. The remaining issues are addressed in this Recommended Order.
Findings Of Fact The FLUM and the Overlay. Lee County adopted its first Comprehensive Plan with a land use map in 1984. On January 31, 1989, the County adopted an amended version of the 1984 Plan intended to plan for growth up to the year 2010 and to comply with the 1985 Growth Management Act requirements. Essentially, the 1989 Plan was very similar to that drafted in 1984. Some major differences were provision of development timing and concurrency, creation of the privately-funded infrastructure overlay, elimination of the fringe land use category, and a variety of other new goals, objectives, and policies (GOP's). Most of the land use categories in the 1984 Plan were carried forward to the 1989 Plan. Almost all of the land use categories are mixed land use categories that allow residential, commercial and in some cases also light industrial uses without any percentage distributions or other objective measurements of distribution among uses. The DCA took the position that the 1989 Lee Plan was not in compliance with the Growth Management Act and filed a petition under Section 163.3184(10). The Department's objection to the 1989 Plan flowed in large part from the alleged overallocation of land for development by the year 2010 that resulted from the categories in the future land use map series (FLUM). Using the County's data and analysis, the DCA concluded that the 1989 map provided for 70 years of growth, to the year 2060, instead of 20 years, to the year 2010. To resolve the 1989 Plan dispute, the County agreed to adopt a 2010 Overlay and create a Density Reduction/Groundwater Resource future land use (FLUE) category (DRGR). The 1989 Plan Compliance Agreement included the following provisions: Amend the Future Land Use Map series by designating the proposed distribution, extent, and location of the generalized land uses required by Rule 9J-5.006(4)(a)1.-9. for the year 2010. These designations will include acreage totals and percentage distributions (illustrated by a bar graph) for about 125 discrete sub-districts encompassing all of Lee County, which, once designated, shall be changed only by a formal amendment to the Lee Plan. The data for these designations shall be consistent with the Lee Plan's population pro- jections for the year 2010. This amendment shall be accomplished by the adoption of over- lay or sub-district maps for the entire County using the concepts developed therefor by Thomas H. Roberts of Thomas H. Roberts Associates and presented publicly to the Board of County Commissioners of Lee County on September 12, 1989, and to the Department of Community Affairs on September 22, 1989. Adopt a policy which will provide that no development approvals for any land use category will be issued in any of the sub- districts described above that would cause the acreage total set for that land use category in 2010 to be exceeded. In accordance with the 1989 Plan Compliance Agreement, the County created a 2010 Overlay. The County first projected future growth in Lee County to the year 2010, using a basic assumption that historic patterns of growth in Lee County, including historic densities, would continue. The County's 2010 population estimate was 757,370 for the entire unincorporated County. The County then assigned acreage allocations for different land uses allowed in each planning subdistrict. In accordance with the 1989 Plan Compliance Agreement, the County adopted the resulting 2010 Overlay, as well as a DRGR FLUE category with a density range of one unit per ten acres, as part of the 1990 remedial plan amendments. The Overlay consisted of Maps 16 and 17, which were added to the FLUM, along with implementing policies in the Future Land Use Element. The 2010 Overlay is, in the words of the 1994 Codification of the Plan, "an integral part of the Future Land Use Map series." Map 16 is a map which divides Lee County into 115 subdistricts. "Map" 17 is not a true map; it is a series of bar tables and pie charts that correspond to acreage allocations for land uses within the subdistricts. Each subdistrict is allocated a specific number of acres for each of the following land uses: residential, commercial, industrial, parks and public, active agriculture, conservation, passive agriculture and vacant. The land use acreage allocations for each Overlay subdistrict are the maximum amount of land which can be developed in that subdistrict. The intent of the 2010 Overlay was to match the amount of development that could be accommodated by the 2010 FLUM with the projected County-wide population for the year 2010. The 2010 Overlay accomplished this in part by assigning percentage distributions, in the form of acreage allocations, to the various uses in the many mixed use categories in the FLUM. Under the Overlay, once the acreage allocation for a particular land use is exhausted, no more acreage can be developed for that land use in that subdistrict unless the Lee Plan is amended. Policy 1.7.6 was adopted to establish an ongoing mandatory review procedure for evaluation and amendment of the 2010 Overlay. On September 6 and 12, 1990, Lee County adopted the 1990 Remedial Plan Amendments and officially revised the original data and analysis supporting the Plan. As the support documents for the 1990 remedial amendments stated: The future land use map series currently contained in the Future Land Use element of the Lee Plan depicts 18 land use categories and has an estimated 70-year population holding capacity. A future land use map series is re- quired by state law and is also a useful and necessary part of the plan in guiding land use and related decisions. The Year 2010 Overlay makes this map series even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon. * * * In addition to this "pure planning" function of the 2010 Overlay, a regulatory function will be added. No final development orders or building permits for any land use category will be issued in any subdistrict that would cause the acreage total for that category in 2010 to be exceeded. The Dwelling Unit Counts and Projections charts in the support documents for the 1990 amendments demonstrate that the 2010 Overlay was designed to greatly limit the number of dwelling units that could be constructed by 2010 compared to the number allowed by the 2010 FLUM without the Overlay. On or about October 29, 1990, DCA published a Notice of Intent to find the 1990 Remedial Plan Amendments in compliance. However, a citizen challenge to the County's 1990 Remedial Plan Amendments resulted in an Administration Commission Final Order that the amendments were not in compliance and that the County had to take certain remedial actions to bring the Plan amendments into compliance. Final Order, Sheridan v. Lee Co. and DCA, 16 FALR 654 (Fla. Admin. Com. 1994)(the "Sheridan Final Order"). The Sheridan Final Order required the County to apply the 2010 Overlay at the development order stage, rather than at the building permit stage. As a result, no development order could be issued which caused the acreage allocations for any given individual subdistrict to be exceeded. The Sheridan Final Order also held that the County had not properly calculated the amount of development allowed by the 2010 Overlay and adopted the following analysis from the hearing officer's Recommended Order: The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities some- where between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. * * * The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population, and consider the extent of the overallocation in the light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. Sheridan Final Order, 16 FALR at 689. As a result, one of the remedial amendments required by the Administration Commission was: To address the density calculation issue the County shall revise the data and analysis to include the maximum allowable densities in determining the amount of development allowed by the 2010 overlay and to show that the amount of development allowed is based on the expected growth. Sheridan Final Order, 16 FALR at 661. The County adopted 2010 Overlay remedial amendments in October, 1994. In December, 1994, the DCA determined that the remedial amendments were in compliance. (The revised data and analysis were not made a part of the record in this case.) On July 1, 1994, the County adopted an Evaluation and Appraisal Report (EAR) for its Plan and subsequently submitted to the DCA the EAR, along with the proposed EAR-based amendments for the year 2020. Among other things, the proposed EAR-based amendments eliminated the 2010 Overlay. Among other things, the DCA's Objections, Recommendations and Comments (ORC) Report objected to the elimination of the 2010 Overlay, taking the position that, without the Overlay, the EAR-based plan had the same allocation-related problems that had been in the 1989 plan. On November 1, 1994, the County adopted a modified version of the EAR- based amendments--still without any Overlay--and submitted these to the DCA, together with its staff response to the DCA's ORC Report. On December 28, 1994, the DCA issued a Statement of Intent to find the EAR-based amendments not in compliance. FLUM Population Accommodation Data and Analysis. The evidence in this case includes data and several different analyses comparing the population accommodated by the plan amendments at issue--i.e., the FLUM without any Overlay--with the population projected for the year 2020. Figure 14. Lee County's proposed population accommodation data and analysis is included in the EAR in Figure 14. Based on Figure 14, the County concluded that the 2020 FLUM accommodates 802,655 persons, or 128 percent of the projected 2020 population (an accommodation ratio of 1.28). Although the FLUM's many mixed use categories do not establish percentage distributions or other objective measurements of distribution among uses, Figure 14 assumes that certain percentages of the many mixed use categories will develop in residential use, based on historic growth patterns. Also based on historic growth patterns, Figure 14 assumes that residential density will be less than the maximum of the standard residential density range allowed in each category although the GOP's allow residential development at much higher densities. Since Figure 14 is based on historic patterns of growth that are expected to continue into the future, Figure 14 appears to predict future growth as accurately as is possible at this time. It probably is the best possible estimate of how Lee County will build out under the proposed amendments. However, the ability to make truely accurate predictions over such a long period of time--25 years--is questionable. Figure 14 assumes that only a fraction of the new Vested Community land use district (Lehigh Acres) will be developed by the end of the planning timeframe. Most of the Vested Community district consists of subdivisions which were approved and platted several years before the adoption of the earliest Lee Plan, and which are vested from the restrictions of the Lee Plan. The Vested Community district contains over 130,000 vested lots which can accommodate at least 271,700 residents. In addition, the Vested Community district contains some land which is not actually vested from the Lee Plan but is allowed to develop at four density units per acre (du/ac). Figure 14 assumes that 45,888 residential units accommodating 95,906 persons will be developed in Lehigh Acres by 2020. There is no goal, objective or policy in the Lee Plan which would prevent the development of more lots vested or allocated in the Vested Community district. Lee County's Figure 14 analysis assumed that the Rural and Outer Islands categories will develop at their maximum residential density of one du/ac. In fact, the Lee Plan includes a Planned Development District Option ("PDDO") which allows: landowners outside the Future Urban Areas to increase allowable densities for development that will be totally independent of county- subsidized facilities and services. (Objective 1.8) The PDDO increases the maximum theoretical residential density of the Rural and Outer Islands districts from 1 du/ac to 6 du/ac. However, due the requirements for use of the PDDO, realistically it cannot be anticipated that much Rural or Outer Islands land will utilize it. Lee County's Figure 14 analysis did not include any residential allocation for the General Interchange category. The General Interchange category allows residential development of 100 residential units at 8 du/ac for every 100,000 square feet of commercial development. If the residential option applied to all 1,436 acres of the General Interchange category, the Lee Plan would accommodate another 13,209 persons in that category. However, for the residential option, the category requires 160 acres under common ownership. Currently, there is only one case in which the requirement is met, and it is a development of regional impact (DRI) that does not allow residential at this time. Figure 14A. Figure 14A is part of the County's response to the DCA's ORC report. It was supposed to adjust Figure 14 by assuming the maximum residential density allowed by each land use category in accordance with the Sheridan Final Order. The Figure 14A accommodated population rises to 1,325,568, and the so-called allocation ratio rises to 2.11. Actually, Figure 14A does not take into account the actual maximum residential density in Intensive Development (22 du/ac), Central Urban (15 du/ac), and Urban Community (10 du/ac). Instead, it uses the top of the "standard density range" in those categories. Figure 14 B. Figure 14B also is part of the County's response to the DCA's ORC report. It adjusts the Figure 14A analysis by estimating the total residential development allowed by the Vested Community category at 170,732 dwelling units, which will accommodate 356,829 persons. Adding those Vested Community numbers to the Figure 14A numbers, Figure 14B estimates the population accommodated by the 2020 FLUM as 1,586,491 persons, or an accommodation ratio of 2.53. Maximum Theoretical Residential Potential. The DCA proposes an analysis of the data using maximum theoretical residential potential for each land use category. Under the DCA analysis, there is enough land available for residential development accommodate a population of approximately 2.5 million people--401 percent of the expected County population in 2020 or, expressed as a ratio, 4.01. In contrast to Figure 14B, the DCA's preferred analysis takes into account all of the residential development capacity in Lehigh Acres. In addition, it assumes residential development in the Vested Intensive Development part of the Lehigh Vested Community at the maximum density of 14 du/ac and in the Vested Central Urban part at the maximum density of 10 du/ac. These assumptions add to the FLUM population accommodation analysis the capacity to accommodate approximately 246,000 more people, over and above the Figure 14B capacity. The DCA's preferred analysis also assumes that all Rural and Outer Islands land will utilize PDDO and develop residentially at 6 du/ac. Use of this assumption more than doubles the population accommodation in those categories, adding approximately 500,000 people to the analysis. While theoretically possible, as previously stated, this assumption is unrealistic. The DCA's preferred analysis also assumes that 13,209 people are accommodated in residential development in the General Interchange category. This assumption, too, is theoretically possible but not realistic. Finally, the DCA's preferred analysis assumes that, although most of Lee County's future land use categories allow a mix of uses, the land will develop at the maximum potential residential densities over the entire land area--i.e., that no other type of permitted use, such as commercial, parks, schools or even roads would occur in any of the land use categories. Finally, it disregards the actual existence of non-residential uses and residential uses at lower densities; instead, it assumes redevelopment at the maximum potential residential densities over the entire land area. County's 2010 Overlay Analysis. It seems obvious that deletion of the 2010 Overlay must increase population accommodation, at least up to the year 2010. Up to the time of the final hearing, the DCA had not requested, and no party did, an allocation ratio analysis of the 2010 Overlay similar to the one the DCA prefers for the 2020 FLUM without any Overlay for purposes of making a comparison between the two. The County's chief planner testified that he performed such an analysis during the course of the final hearing using the maximum residential and maximum density assumptions. Neither the details nor the results of the analysis were clear. However, it appears to indicate that the 2010 Overlay accommodated a 2010 population of 1.06 million, apparently including 282,000 assumed to be accommodated in Lehigh Acres, an allocation ratio of 2.11. Assuming that the County's 2010 Overlay analysis included Lehigh, it can be roughly compared to the Figure 14B analysis and the DCA's preferred "maximum theoretical residential potential" analysis by removing the Lehigh component from each. Subtracting the Lehigh component from the County's 2010 Overlay population accommodation analysis results in a 2010 population accommodation of 778,000. Removing the Lehigh component from Figure 14B results in 2020 population accommodation of 1,229,662. Removing the Lehigh component from the DCA's analysis results in 2020 population accommodation of 2,008,927. Meanwhile, the County's projection of future increased by only about 70,000 between 2010 and 2020 for the entire unincorporated county. RGMC Alternative 2010 Overlay Accommodation Analysis and Comparision. RGMC proposes its own alternative analysis for comparing the population accommodated under the 2010 Overlay to the population accommodated without it. Using the County's population projection for 2020 of 626,860 in the unincorporated county and the accepted 2.09 people per unit, it can be estimated that approximately 300,000 units will be needed in the year 2020. Subtracting the 127,000 units existing in 1990, approximately 173,000 additional units will be needed over the 30 years from 1990 to 2020 to accommodate the expected population, or approximately 5,800 additional units per year. At that average rate, 116,000 units would be added by the year 2010 (5,800 units per year times 20 years). Adding the new units to the 127,000 units existing in 1990 results in a total of approximately 244,000 units in 2010. Since it is agreed that the Overlay was designed to accommodate, and accommodated, approximately the population expected in the year 2010, it can be estimated that the Overlay accommodated approximately 244,000 units. In the sense that all units accommodated under the 2020 FLUM without the Overlay are available for development before 2010, a rough comparison can be made between the population accommodated under the 2010 Overlay and the population accommodated according to the other analysis methodologies: according to Figure 14, the amended 2020 plan accommodates 384,045 units for the year 2020; according to Figure 14A, the amended 2020 plan accommodates 634,243 units for the year 2020; according to Figure 14B, the amended 2020 plan accommodates 759,086 units for the year 2020; and according to the DCA's preferred "maximum theoretical residential potential" methodology, the amended 2020 plan accommodates 1,201,973 units for the year 2020. Calculation and Use of the "Allocation Ratio". The technique of determining a residential density allocation ratio was described in an article entitled "Expanding the Overallocation of Land Use Categories," which appears in a June, 1995, publication of the Department of Community Affairs called "Community Planning." "Community Planning" is published by the Department of Community Affairs "to provide technical assistance to Florida's counties and cities and implement any requirements of Florida's growth management laws." The article announces how the Department reviews the question of "overallocation" in determining whether a plan is in compliance with statutory and rule requirements regarding urban sprawl. According to the article, the Department suggests that a comprehensive plan should allocate up to 125 percent of the amount of land needed to accommodate the projected future population. The article does not explain how the "allocation ratio" should be calculated. The Sheridan Final Order seems to say that maximum densities should be assumed. See Finding 11, above. But neither the "Community Planning" article nor the Sheridan Final Order indicate what other assumptions should be made. The "Community Planning" article and the Sheridan Final Order also do not specify whether, in calculating the allocation ratio, population accommodation capacity should be compared to the total expected population or to the incremental growth expected in the population. The DCA has accepted a 1.25 allocation ratio applied to the total expected population as being reasonable. A major treatise in this area known as Urban Land Use Planning, Fourth Edition, by Kaiser, Godchalk, and Chapin, suggests that an allocation ratio of up to 2.05 can be considered reasonable; however, when doing so, the authors were evaluating plans with a closer planning horizon (one to five years), and they were comparing the population accommodation capacity to the incremental growth expected in the population. When calculating an allocation ratio for a 20-year planning horizon, they suggest that a 1.20 allocation ratio that compares population accommodation capacity to the incremental growth expected in the population would be reasonable. By accepting a 1.25 allocation ratio that compares the population accommodation capacity to the total population expected on a 25-year planning horizon, the DCA seems to have been misapplying the allocation ratio analysis. Clearly, an accommodation ratio comparing the population accommodation capacity to the incremental growth expected in the population would be much than one comparing to to the total population expected. There was no data and analysis as to exactly how much higher, and it is difficult to say based on the record in this case. However, an example of the difference between the too methodologies is suggested by one of RGMC's alternative analyses. It is known that approximately 300,000 units of residential development will be needed for the population expected in the year 2020. See Finding 36, above. The evidence was that there were approximately 143,000 units existing in 1995, so approximately 157,000 additional units will be needed by the year 2020 to accommodate the expected population. Meanwhile, using the County's Figure 14 assumptions, the FLUM without the Overlay makes 384,045 units available for development by the year 2020, or an accommodation of an additional 241,045 units over what was in existence in 1995. Comparing incremental accommodation for growth to the incremental population growth expected by the year 2020 would result in an "accommodation ratio" of approximately 1.54, versus the ratio of 1.28 calculated in Figure 14 comparing to total population expected. By way of further examples, using the same method of comparison: Figure 14A's 2.11 "accommodation ratio" would become a ratio of 3.13, comparing incremental accommodation for growth to the incremental population growth expected by the year 2020; Figure 14B's 2.53 "accommodation ratio" would become a ratio of 3.92; and the DCA's "accommodation ratio" of 4.01 would become a ratio of 6.75. It should be noted that the Urban Land Use Planning treatise also speaks of the use of the allocation ratio as a safety factor to provide a choice of location for housing type and to avoid artificially increasing land and housing prices. Rather than being a device merely to avoid the overallocation of land, the safety factor also is said to be necessary to ensure that enough land is allocated and that the limitations of forecasting approaches do not exacerbate the need for affordable housing. It also should be noted that neither the "Community Planning" article nor the Sheridan Final Order specify that allocation and urban sprawl issues should be determined from the simple calculation of a residential density allocation. To the contrary, the Sheridan Final Order would indicate that, once the allocation ratio is obtained, full consideration should be given to all pertinent factors "in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis." Analyses Not Conducted. The plan amendments do not only eliminate the 2010 Overlay. They also decline to retain the Overlay concept and extend it another ten years to the year 2020. There is no data or analysis in this case comparing the population accommodated by the FLUM without any Overlay to the population that would be accommodated in the year 2020 if the Overlay were extended another ten years to 2020. Such data and analysis would most clearly illuminate the impact of eliminating the 2010 Overlay, and abandoning the Overlay concept, on the residential allocation of the plan for the year 2020. There may be tens of thousands of, up to perhaps almost a hundred thousand, residential units in DRI's that have been approved but not yet built. There was inadequate data and analysis of how many of the residential units that will be needed by the year 2020 can be supplied in these DRI's. Lehigh Acres. Clearly, Lehigh Acres presents a special problem for Lee County and the DCA. Lehigh Acres was platted in the 1950s and 1960s. It covers approximately 97 square miles, which is slightly more than 62,000 acres. Since its inception, Lehigh has had all the attributes of urban sprawl. It is a large, sprawling, almost entirely residential community that was created in an area remote from urban services. It is characterized by grid patterns of development, a poorly-designed transportation network with large numbers of small local roads and no four-lane roads, huge amounts of land allocated to residential development and a relatively small amount of land allocated to commercial development. The roads in Lehigh are built. Virtually all of Lehigh has been subdivided into relatively small single family residential homesites, and almost all of these homesites have been sold to buyers all over the world. By virtue of the platting and sale of the land into homesites, Lehigh is a vested community. Over the years, the County has considered a number of potential solutions to the Lehigh Acres dilemma. Ultimately, the County decided to take a multi-pronged approach: (1) creating restrictions on additional subdivision and attempting to reduce densities to no more than four units per acre; (2) continuing the privately-funded infrastructure overlay as the means of providing infrastructure in Lehigh; and (3) utilizing sector planning to work toward a better transportation system and larger areas of commercial allocation to create a more balanced community. Based on the new treatment of Lehigh Acres, the County engaged in different assumptions about how Lehigh will build out. In 1989, Lehigh was shown as "central urban" and "urban community," together with the rest of the Lee Plan future land use categories. Under the 2010 Overlay, the County purported to reduce acreage allocations in Lehigh, but in fact there was little impact on residential potential due to vesting. In the EAR-based amendments, Lehigh is shown under "Vested Community," a separate land use category. Through the vested community category, the County attempted to restrict additional subdividing of lots and, with a few limited exceptions, set a maximum density of four units per acre. Based on the different treatment of Lehigh in the Plan, the County projected a population for Lehigh based on the amount of growth actually expected to occur by Year 2020. To do this, the County utilized eight different methodologies and averaged the projections to come up with a 2010 population for Lehigh of 95,906. These assumptions are reflected in the County's Figures 14 and 14A. Neither the Department's rules nor the "Community Planning" article provide specific guidance as to how vested areas are to be treated in making a calculation of a plan's "allocation ratio." The vast area of Lehigh has the capacity to absorb virtually all the anticipated future population growth in unincorporated Lee County through the year 2020. In fact, it may be appropriate for Lee County to increase overall density in Lehigh if necessary to support the infrastructure and transportation needed to convert Lehigh Acres into a more balanced, multi-use development. Lee County's approach to Lehigh essentially was to attempt to satisfy the Department's desire for an acceptable "allocation ratio" by estimating how many residents will actually live in Lehigh by 2020, assuming the Plan's treatment of Lehigh, and treating those estimates as Lehigh's population accommodation. By studying historic rates of growth, the Lee Planning Division believes that number will be approximately 96,000 people. No evidence was presented by the Department or any intervenor in contradiction of this estimate. The results of the County's approach to Lehigh are reflected in the County's Figures 14 and 14A. Another approach would be to attempt to reduce residential development in other parts of the County. It would be poor planning to reduce densities "across the board" throughout the County just to achieve a lower allocation ratio. Such an approach could direct population concentration away from urban areas into poorly-served rural areas, thereby discouraging the efficient use of land and encouraging sprawling uses. Depending on the densities, it could direct growth to remote areas of the county. Additionally, if Lee County attemped to limit residential growth based on incorrect assumptions regarding future densities, it could seriously underallocate land uses. Underallocation can greatly inflate land costs to the detriment of the general public. On the other hand, a better approach might be to couple sector planning in Lehigh with a reduction in densities in certain other parts of the County. If successful, such an approach could both create more balanced development in Lehigh Acres and direct future growth to Lehigh and away from coastal high hazard areas (CHHA), DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Commercial Allocations. The 2020 Lee Plan, without the 2010 Overlay, has some guidance for the location of commercial development, especially retail commercial. But it does not have percentage distributions or other objective measurement of the distribution of commercial and other uses allowed in its many mixed land use districts. Policy 6.1.2 of the 2020 Lee Plan consists of site location criteria which apply to retail commercial development, such as shopping centers, restaurants, gas stations, and other commercial development generating large volumes of traffic. Non-retail commercial development, such as office, hotel and motel or wholesale commercial development, may be developed at the identified intersections or anywhere else in the land use categories which allow commercial development. Even retail commercial can be developed at locations which do not meet the location criteria under discretion granted to the Board of County Commissioners. According to Lee County's EAR, the Commercial Site Locations Standards Map (Map 16) identifies 52 full intersections and 15 half-moon intersections which comply with the site location standards for Community Commercial and Neighborhood Commercial. They represent 9,520 acres of land designated for retail commercial development. Using the standard planning conversion rate of 10,000 square feet per acre, average, there is room for approximately 95,000,000 square feet of commercial development in the commercial sites depicted on Map There also may be other intersections which meet the criteria for Community Commercial or Neighborhood Commercial but are not shown on Map 16. In addition, there are numerous intersections which meet the criteria for Minor Commercial which are not shown on Map 16. Map 16 also does not include Regional Commercial development. The report by Thomas H. Roberts & Associates on Commercial Land Use Needs In Lee County (Jan. 10, 1987), indicates that the retail space ratio in Lee County is 26 square feet per capita. Just counting the 95,000,000 square feet of retail commercial development allowed in the land shown on Map 16, the 2020 Lee Plan has enough retail commercial capacity to accommodate 3.7 million people. Without even considering the non-retail commercial uses that can be developed at any location in the several land use districts which allow commercial uses, or the unknown amount of retail commercial that can be developed at the numerous intersections which meet the Minor Commercial location criteria, the 2020 Lee Plan without the 2010 Overlay allows commercial development far in excess of the amount needed to accommodate the projected 2020 population. Industrial Allocation Policy 7.1.4 in the 2020 Lee Plan provides: The [FLUM] shall designate a sufficient quantity of land to accommodate industrial development that will employ 3 percent of the county's population in manufacturing activities by the year 2010. The 2020 FLUM, without the 2010 Overlay, designates 6,062 acres in the Industrial Development category. Three percent of the 2020 County population represents approximately 19,000 people. The 1984 Roberts industrial land analysis for Lee County suggested a ratio of seven industrial workers per acre for industrial related activities. Most industrial land uses employ more workers per acre, and the national average is about 17 employees per acre. But even using the ratio suggested by the Roberts analysis, Lee County would need only approximately 3,000 acres of industrial land to accommodate three percent of the 2020 County population in industrial employment. Analysis in the EAR indicates that enough additional industrial land is needed to serve the needs of municipal populations that probably cannot or will not be supplied within the cities themselves and that this additional land accounts for the apparent excess in industrial lands allocated in the county. However, it is not clear from the data and analysis how this determination was made. In addition, light industrial development is permitted in several other mixed land use categories. For example, the existing approximately 2,800 acres of Airport Commerce (AC) located to the northwest of the airport is intended to include light industrial activities. There was no data or analysis as to how much additional industrial use will be made of land in those categories. There are no percentage distributions or other objective measurements of the distribution of land uses in the mixed land use districts that allow light industrial use. The Mixed Land Use Districts. As has been seen, the Lee Plan without any Overlay makes extensive use of mixed land use districts without percentage distributions or other objective measurements of distribution among uses. Much of the dispute between the parties as to residential accommodation and allocations of land for commercial and industrial uses results from the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use categories. Although the County predicts development of only a percentage of these districts as residential, it remains possible for much larger percentages to be developed residential. On the other hand, it is possible for practically all of mixed land use districts to develop commercially or even industrially. The 2010 Overlay attempted to address the lack of percentage distributions or other objective measurements of distribution among uses in the plan's mixed land use districts by limiting the acreage that could be developed in particular uses by the year 2010. Without the Overlay concept, no percentage distributions or other objective measurements of distribution among uses remain in the plan. Because of the plan's extensive use of mixed use districts, the County's ability to control development through the plan is seriously undermined. Other Urban Sprawl Considerations. Unincorporated Lee County contains approximately 685 square miles. Lehigh Acres and the DRGR areas, combined, are approximately 199 more square miles, 29 percent of the total area of unincorporated Lee County. Except for the growth that will occur in the Vested Community of Lehigh, much of the future growth in Lee County will occur in the I-75, U.S. 41 corridor, which is oriented in a generally North-South direction and contains most of the urbanized areas of the County, including the City of Fort Myers. Because this area is already largely urbanized, most of the growth in it will result in either the expansion of existing urbanized areas or in-fill between existing urban areas. Certificated water and sewer franchise areas also generally coincide with the north/south urban core in which growth is expected to continue. The presence of water and sewer franchise areas in the north/south urban core and in Lehigh Acres encourages utilization of these areas through the ability to provide urban services. The absence of water and sewer franchise areas in other portions of the County will act as a hindrance to development in areas which are undeveloped and either in conservation or agricultural use. A review of County DRI approvals, together with approved development orders, also appears to indicate a trend toward development in the north/south core. The absence of development orders in most of the outlying areas, indicated as either agricultural, vacant, or conservation use, indicate that probably relatively little growth will occur in those areas. Platted subdivisions also appear to show a trend toward development in the north/south urban core. In general, there also appears to be a correlation between existing land uses and those factors which can reasonably be expected to establish future growth trends in the north/south urban core. Growth in the north/south I-75, U.S. 41 corridor across the county line to the south in Collier County tends to encourage similar growth at the southern end of Lee County. Meanwhile, there are hindrances to development across the county line to the east and southeast by virtue of the presence of agricultural lands and regional wetland systems such as the Corkscrew Swamp and the Everglades. The County has also made use of sector planning. The County's sector plans represent extensive and detailed planning studies which in many cases are reflected in both the FLUM and the policies in the Plan. However, currently there is no sector plan for Lehigh Acres. Policy 1.5.5, creating the Vested Community category for Lehigh, states a sector plan for Lehigh will be developed beginning in 1996. In terms of land uses, the Plan seems to be fairly well functionally related, both in terms of what is shown on the FLUM and the relation between the FLUM and the Plan policies themselves. A good example of this is the commercial site location standards, which establish a strong functional relationship between transportation and regional commercial facilities. There is also a good functional relationship between existing land uses. The Plan mixed use categories appear to recognize and attempt to encourage sound functional relationships between home, work, and shopping. The Plan also has compatibility standards that help maintain functional relationships. However, without the Overlay, the many mixed use categories in the Plan do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts. In terms of land use suitability, the County generally appears to be designating for development those areas which are most suitable for development. However, because it allows development of all kinds throughout the County in excess of what is needed by 2020, the Plan allows development in less suitable areas. A variety of methodologies and assumptions leads to the conclusion that the Lee Plan generally is an urban development plan, not a rural development plan. For instance, under the Figure 14 methodology, 80 percent of the population is directed toward urban land uses, and 12 percent into rural. Under Figure 14B, which unrealistically assumes that all of Lehigh Acres will be built out within the planning time frame, 90 percent of the population is directed to urban areas, and only 10 percent to rural. Even assuming that 100 percent of the land will be used for residential purposes, and that all of Lehigh will build out within the planning time frame, 92 percent is directed to urban areas, and only 8 percent to rural. Finally, even assuming 100 percent of the land to residential at maximum densities, and also that all rural land uses will use the PDDO option at six units per acre, only 4 percent of the population will be directed to rural areas in the FLUM. Notwithstanding the overall patterns of growth in Lee County, it clearly is indicated in the Sheridan Final Order that land in Lee County historically has been used inefficiently and that, without the Overlay, the plan allows inefficiency to continue unabated. This is due in large part to the extensive use of mixed land use categories that do not contain a percentage distribution or other objective measurement of distribution among mixed uses within the mixed use districts, together with the overallocation of land that also results in part from their use. By comparing the FLUM's since 1984 with the current Existing Land Use Map (ELUM) (Lee 56), it is apparent that rural designations have not preserved agriculture. Significant parts of county that have been designated rural since 1984 actually have been developed residential or non-agricultural use. In Range (R) 25 East (E), Township (T) 45 South(S), Sections 31 and 32 are residential, while 33 is a golf course. Similarly, R 25 E, T 47 S, Sections 14, 15 and 23 have developed significantly residential and part of Section 14 is now designated Outlying Suburban. In addition, significant residential development has occurred in areas of Pine Island that have been designated rural since 1984. On the other side of the coin, much of the "New Community" still is in rural use (R 35 E, T 45 S, Sections 1, 2, 3, parts of 10, 11, and 12; R 26 E, Sectons 5-8, 17 and 18.) Some "Industrial Development" land is actually still in rural use or vacant--R 25 E, T 46 S, Section 3 west of I-75, and Sections 4- There is significant land that actually is rural or vacant adjacent to wetlands and Estero Bay in R 24 E, T 45 S (Sections 28, 29, and 31-35), together with Sections 3-5, 8-10, and 15 in R 24 E, T 46 S, that are designated for Suburban or Outlying Suburban uses. Land designated rural, open land or fringe in 1984 has been redesignated for urban uses over the years. A large block straddling Daniels Parkway east of the 6 Mile Cypress Strand has been designated Outlying Suburban. Approximately between Buckingham Road, Orange River Boulevard and I-75, rural land has been redesignated as Rural Community Preserve. Large blocks of land, one at the extreme north end of the county between U.S. 41 and I-75, and the other east of I-75 near the river, have gone from rural to Outlying Suburban. A large amount of what was rural and fringe between Bonita Springs and San Carlos Park, west of U.S. 41, has become Suburban and Outlying Suburban. CHHA and Hurricane Evacuation and Shelter. Objective 75.1 of the amended Lee Plan defines and delineates Coastal High Hazard Areas (CHHA) for the first time. Previously, the plan referred to the Federal Emergency Management Agency (FEMA) "A Zone," which encompasses somewhat more land than the new CHHA. Policy 75.1.4 of the amended Lee Plan, which formerly applied to the "A Zone," states: Through the Lee Plan amendment process, land use designations of undeveloped areas within [CHHA] shall be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. In this round of amendments, the County did not consider either reducing density categories, or assigning the minimum allowable densities in categories with a range of densities, in undeveloped land in the CHHA. In prior rounds of amendments, the County reduced densities in areas that would be inundated by Category 1, 2 and 3 hurricanes (which would include CHHA). Assuming maximum allowable densities together with the other Figure 14A assumptions, the density reductions reduced population accommodation by 13,000 units in those areas. Elimination of the 2010 Overlay opened additional land to immediate development in the CHHA. There was no data and analysis on the amount of new land opened to immediate development or the additional population accommodated in the CHHA that would result. Goal 79 in the Lee Plan, as amended, is to "provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.1 of the Lee Plan, as amended, is to restore evacuation times to 1987 levels by 2000, and to reduce the clearance time portion of evacuation time to 18 hours or less by 2010. Previously, the plan's objective was to achieve 1987 evacuation times by the year 1995. Lee County has among the best hurricane planning efforts in southwest Florida. Nonetheless, as of the time of the final hearing, evacuation times still exceeded 1987 levels, and clearance times exceeded 18 hours. Little progress had been made toward the previous objective to achieve 1987 evacuation times by the year 1995. That is why the objective was extended five more years until the year 2000. It may be that the 2010 Overlay was not designed with hurricane evacuation times in mind. It also is true that the County's evacuation plans are updated every three years based on actual development data. But it also is true that additional development in the CHHA due to elimination of the 2010 Overlay may make it more difficult to achieve Objective 79.1, even as amended. Objective 79.2 of the Lee Plan is to make adequate shelter space available by the year 2010 "for the population in the Hurricane Vulnerability Zone at risk under a Category 3 storm." There was no data and analysis of the impact of eliminating the 2010 Overlay on the County's ability to achieve either Objective 79.1 or Objective 79.2. There also was no data and analysis of the impact of amending Objective 75.1 and 75.1.4 to reduce the size of the coastal area subject to consideration for land use density reductions on the County's ability to achieve either Objective 79.1 or Objective 79.2. Change of Alico Property from DRGR to AC. Another significant FLUM amendment in the EAR-based amendments was to change the designation of 1400 acres of property owned by Alico, Inc., from DRGR to Airport Commerce (AC). Uses allowed in the AC district include light manufacturing and assembly, warehousing, distribution facilities, ground transportation and airport related terminals or transfer facilities, and hospitality services. Suitability. Policy 1.4.5 of the plan, as amended, defines DRGR as "upland areas that provide substantial recharge to aquifers most suitable for future wellfield development" and as "the most favorable locations for physical withdrawal of water from those aquifers." Although previously designated DRGR, more recent data and analysis calls this designation into question. The amendment property does provide some recharge to both the water table (surficial) aquifer and the underlying Sandstone aquifer, but it does not provide above-average groundwater recharge for either aquifer (or any recharge to any of the deeper aquifers). In addition, it is not a good site for the development of a wellfield in either the water table or the Sandstone aquifer. The water table aquifer is not especially thick, and there are too many wetlands on the site for production from the water table aquifer. (Pumping from the water table aquifer next to the airport also could be problematic in that the stability of the soil under the airport could be affected. (Cf. Finding 100, below.) In the Sandstone aquifer, groundwater flows away from the site, making it unsuitable for production. Despite the questions raised by the new data and analysis, the amendment property may still be suitable for designation as DRGR. But that does not necessarily make it unsuitable for AC use. In terms of location, the amendment property is perfectly suited to AC use. I-75 and other AC-designated property is to the immediate west of the amendment property. The Southwest Florida International Airport is to the immediate north of the amendment property. A second runway and a new cargo handling facility are planned for construction to the south of the existing airport runway. When built, the new facilities will practically be touching the northern boundary of the amendment property, and the proposed new south airport access will cross the amendment property and intersect Alico Road, which is the southern boundary of the amendment property. Commercial and industrial use on the property would not pose an unreasonable threat to contaminate either existing or future potable water wells. Theoretically, stormwater from the amendment property could contain contaminants which could eventually migrate to a drinking water well. But the threat of such contamination is small. Permitting criteria adopted and imposed by the South Florida Water Management District will require all construction on this site to conform to surface water quality standards through Chapter 373, Florida Statutes, and permitting rules of the Water Management District within Chapter 40, Florida Administrative Code. These rules will require on-site detention and retention of stormwater which will greatly reduce the threat of surface contaminants leaving the property. Additionally, all surface water runoff from the property, and most groundwater, will be intercepted by the Alico Road Canal, which drains in a westerly direction away from any existing drinking water wells. If any contaminants from the amendment property were to enter the groundwater, avoid the Alico Road Canal and leave the property, they would have to migrate a considerable distance to reach a potable water wellhead. The only wellfield pumping, or planned to pump, from the water table aquifer which contaminants possibly could reach would be the existing Gulf Utilities wellfield approximately one mile and a half southeast of the amendment property. Contaminants within the groundwater move at a slower speed than the water itself. Most contaminants move at a much slower speed than the water. Thus, the chances are very slight that contaminants from the amendment property would threaten the Gulf Utilities wellfield. Any metals in the groundwater would attach to soil particles and migrate extremely slowly. Other potential contaminants would eventually break down within the soil as they slowly migrated away from the site. It was estimated that the travel time from the closest portion of the amendment property to the Gulf Utilities well field would be in the neighborhood of 50 to 100 years. If any such contaminants did reach the wellfield they would be in such dilute concentrations that they would pose no health hazard. The only other wellfield that is reasonably close to the proposed site is the Florida Cities well field to the northeast. This wellfield taps the Sandstone aquifer. The Sandstone aquifer is separated from the water table aquifer by an approximately 40 foot thick semi-confining layer. This layer is composed of silt and clay which provides hydraulic separation between the aquifers. There are no known breaches of the semi-confining layer in this area. The direction of flow and the nature of the semi-confining layer also make it extremely unlikely that contaminants from activities on the amendment property and discharged from the site by stormwater could migrate to the Florida Cities water wellfield. The groundwater in the water table aquifer flows generally southwest, and the confining layer has low leakance values. Additionally, safety measures required for the development of the amendment property include the installation of monitoring wells and the requirement to use the best environmental management practices. The data and analysis includes panther sitings in the vicinity of the amendment property. There also is evidence that the amendment property is part of land that has been labeled as "Panther Priority 2." The significance of this label was not clear from the evidence. In any event, while part of the "Panther Priority 2" land, the amendment property clearly also is surrounded by uses not particularly suited for panthers. Currently, rock mining is occurring on property to the east and to the south of the amendment property. Rock mining on the amendment property itself also is allowed under its previous DRGR designation. The airport is immediately to the north, and both other AC property and I-75 are immediately to the west. In light of those developments, the "Panther Priority 2" designation does not make the amendment property unsuitable for AC designation. Need. The County has a legitimate need to diversify its economy so that it is not so dependent on tourism. It is the County's perogative to attempt to develop its regional airport into an international trade center. In view of the suitability of the amendment property for AC, and its projected role in furthering the County's plans to develop its regional airport into an international trade center, the amendment property should be viewed as a valuable economic resource in need of protection. It is appropriate, when trying to protect a resource, to plan for the needs of generations to come. If the amendment is not approved, there is a good chance that the land eventually will be used for a rock mine. Residential use in that location is incompatible with airport noise. A public gun range is a permissible use of DRGR property, but there are no plans for a public gun range on the amendment property, and such a use also would not be compatible so close to the airport and would be unlikely. Although agricultural use as pasture is possible, ultimate use of the property for pasture seems less likely than rock mining. As previously mentioned, the land immediately to the east of the subject parcel and to the south of the subject parcel is being utilized as rock pits. If the amendment property eventually is used for rock mining, the land would be excavated into what becomes deep lakes. In all likelihood, such a use would permanently preempt the land in question from being a commercial resource that could be utilized in conjunction with the airport. Of the 1400 acres of amendment property, approximately 800 acres are jurisdictional wetlands; only about 600 acres of uplands actually can be used for AC purposes. Meanwhile, approximately 173 acres of industrial land has been rezoned to other uses within Lee County between 1990 and the date of the hearing. Another 300 acres of AC are to be incorporated into the new airport expansion. But there was no data or analysis as to how much of those 473 acres consist of wetlands. Utilizing the 1984 Roberts methodology, the County has analyzed the need for industrial land in the County and has concluded that the addition of the amendment property is necessary to meet those requirements. However, as previously mentioned, it is not clear how the County's analysis was conducted or what the actual needs for industrial land in the County are. In addition, several mixed land use categories permit light industrial use but do not establish percentage distributions or other objective measurements of the distribution among the mixed uses within those categories. Taken as a whole the data and analysis does not establish that the AC amendment is necessary to meet the need for industrial land in the County. Adequate data and analysis to establish those needs is necessary to determine whether other land where industrial use is permitted should be redesignated if the AC amendment is to be adopted. As previously discussed, Lee County has much more land designated for commercial development than will be needed to accommodate the projected 2020 population. See Findings 58-68, above. In support of their position that the AC map amendment is needed in order to meet the demand for airport-related industrial and commercial development that will be generated by the expanding Southwest Florida International Airport, Lee County and Alico point out that international airports serve a larger area than a single County, and that a larger AC district near the Airport will serve the Southwest Florida region. With its new runway and larger terminal with new cargo handling facility, the Airport Authority intends, and the County would like to encourage, a large increase in airfreight handled by the Airport by 2020. Alico prepared a Response to DCA's ORC, which attempted to compare the acreage of approved, large-scale commercial and industrial development near the Orlando International Airport to the amount of acres proposed for Airport Commerce near the Southwest Florida International Airport. However, the Alico Response failed to take into account the amount of approved development near the Orlando Airport which is vacant. According to the Alico Response, the Orlando International Airport handled 233,587 tons of airfreight in 1994. Also according to the Alico Response, 7,152 acres of industrial and commercial development, including ten DRI's, are located near the Orlando Airport. The ten DRI's located near the Orlando Airport include 55,464,770 square feet of approved industrial and commercial development. But as of June of 1995, only 3,386,744 square feet of industrial and commercial development, or 6.11 percent of the approved industrial and commercial square footage, had been constructed. Applying the percentage of approved industrial and commercial in DRI's actually developed by 1995 (6.11 percent) to the acreage approved for industrial and commercial (7,152 acres), it can be determined that 440 acres of existing industrial and commercial development were supporting the 233,587 tons of airfreight handled by the Orlando Airport in 1994. Based upon the Orlando Airport experience, it would appear that each acre of industrial and commercial development near an airport supports 534.54 tons of airfreight each year. The Southwest International Airport projects that 196,110 tons of airfreight will be handled by the Airport by 2020. Dividing the projected 2020 tonnage by the 534.54 tons of airfreight per acre from the Orlando Airport experience, it would appear that the air freight activities projected for the Southwest Florida International Airport by the year 2020 will support only about 367 acres of AC. The Lee Plan FLUM already includes approximately 2800 acres of AC located to the northwest of the Airport. (It is not clear whether the 300 acres consumed by the runway expansion should be deducted from the 2850 acres of AC said to currently exist.) The existing AC district is essentially undeveloped. The AC which already exists to the northwest of the Airport is more than sufficient to support the airfreight which the Airport expects to handle by 2020. Zemel FLUM Amendment. Background. The Zemels own approximately 8600 acres of land in northwest Lee County. The 1990 Comprehensive Plan amendments which resulted from the settlement between Lee County and DCA, designated Zemel property as DRGR with a residential density of one unit per ten acres. The DRGR designation for the Zemel property was determined to be in compliance with the Growth Management Act. Zemel v. Lee County & DCA, 15 FALR 2735 (Fla. Dept. Comm. Aff. 1993), aff'd, 642 So. 2d 1367 (Fla.1st DCA 1994). Based in part on data and analysis which were not available at the time of adoption of the DRGR category, a circuit court determined that the Zemel property did not meet the criteria for inclusion in the DRGR category. The circuit court ordered that: The property is hereby restored to the Rural land use classification on the Future Land Use Map of the Lee Plan, including restoration of the subject property's density to 1 du/acre and use of the Planned Development District Option for the property. This action shall not preclude the County from amending its plan, including the 2010 Overlay, as it pertains to the Zemel property, pursuant to Chapter 163, Fla. Stat., subject to constitutional limita- tions and other requirements of law. Placement of Zemel Property in Open Lands Classification The 1994 EAR-based amendments changed the land use designation of the Zemel property to Open Lands. Open Lands is a new category created by the EAR- based amendments in Policy 1.4.4. The residential density allowed in the Open Lands category is one unit per ten acres, except a density of one unit per five acres is permitted if the planned development process is used to prevent adverse impacts on environmentally sensitive lands (as defined in Policy 77.1.1.4). (Commercial and industrial uses are permitted in the Open Lands category in accordance with the standards in the Rural category.) Of the 8,600 acres owned by Zemel, approximately 1,900 acres are wetlands and 6,700 acres are uplands. Lee County chose the Open Lands category for the Zemel property because it was the least intensive land use category available after the circuit court determined that the DRGR category was not appropriate, and because the County did not wish to exacerbate the overallocation of the FLUM. According to new Policy 1.4.4: Open Lands are upland areas that are located north of Rural and/or sparsely developed areas in Township 43 South. These areas are extremely remote from public services and are characterized by agricultural and low-density residential uses. It was not proven that the Zemel property does not meet the Policy 1.4.4 definition of Open Lands. The Zemel property clearly is in Township 43 South. It is north of areas that can be said to be "sparsely developed." The Zemel property clearly is characterized by agricultural use. Finally, although some of the Zemel property is not "extremely remote" from some public services, all of the Zemel property can be said to be "extremely remote" from at least some public services, and some of the Zemel property can be said to be "extremely remote" from all public services. Placement of the Zemel property in the Opens Lands category was based on adequate data and analysis. To the extent that data and analysis in the EAR may have been lacking, the evidence at final hearing included adequate data and analysis. Using the Figure 14 methodology, the County calculated that Open Lands category would accommodate 2,073 people, as compared to 8,293 people at the Rural density. However, assuming development of all of the Zemel property at the one du/ac standard density allowed by the Lee Plan for Rural, 14,003 people (1 du/ac x 6700 upland acres x 2.09 persons/unit) would be accommodated. In the case of the Zemel property, such an assumption would be less unrealistic than in many other parts of the County since it is a large, vacant tract. The evidence also was that the Zemel property is one of the few parcels of land in the County in which use of the PDDO is a realistic possibility. Assuming maximum densities under the PDDO, the Zemel property under the Rural designation could accommodate 84,018 people (6 du/ac x 6700 upland acres x 2.09 persons/unit). Under the Open Lands category, even at the maximum density allowed for planned developments, the Zemel property could accommodate only 2,801 people (1 du/5 ac x 6700 upland acres x 2.09 persons/unit). Dependence of Open Lands on Deletion of Overlay Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. Although all of the parties now agree that the attempted deferral of this decision was "ultra vires," the evidence was that one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. Specifically, there was evidence that the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," was intended to remain together with the amendments which delete the FLUM 2010 Overlay, and to either become effective together or not at all. Otherwise, there would be no development authorized in property redesignated "Open Lands" because there was no land use category called "Open Lands" at the time of adoption of the 2010 overlay, and no express authorization for development of any kind in "Open Lands." Planning Timeframe. Clearly, the EAR-based Lee Plan amendments are intended to plan through the year 2020. The year 2020 was chosen for the amendments to enable the County to make use of the best available demographic projections being generated by the Metropolitan Planning Organization for that time frame. The Parks, Recreation and Open Space Element of the plan, as amended, retains Map 11. Map 11 depicts "Future Recreational Uses within Generalized Service Boundaries." It is the map that was generated in 1989 and used in the 1989 and subsequent plans for the year 2010. However, it was not proven that the map does not accurately depict "Future Recreational Uses within Generalized Service Boundaries" for the year 2020. The County concedes that the Community Facilities and Services Element of the plan, as amended, projects waste generation and recycling rates only from 1991 to 2015. The County contends that these projections are easily extrapolated to the year 2020, and no party disputes this. The County's response to the DCA's ORC report indicates that the Hurricane Shelter/Deficit analysis for the Conservation and Coastal Management Element is for shelter needs to the year 2000. However, the County cannot accurately project shelter needs much further in the future. The evidence is that the better practice is to plan for shorter periods of time and continually update the projections. This is what the County does. It was not proven that the County is planning for the wrong timeframe or that its plan is defective for that reason. Other alleged uses of the wrong planning timeframe actually arise from questions as to the allocation of land to meet the needs of the County through the year 2020. There is no question whether the County's intent is to plan for the year 2020. The dispute is whether land has been overallocated. Other Alleged Internal Inconsistency. Amended Objective 100.1 in the Housing Element uses data for the County, including municipalities, in projecting the number of housing units needed for the 2020 timeframe. It is true that EAR Figures 14, 14A and 14B, which analyze the FLUM, identify the number of units which may be accommodated for the unincorporated area. But EAR Figures 12 and 13, which also analyze the FLUM, are directed to the entire county, including municipalities. Besides, it is clear that the County understands its obligation is only to implement affordable housing with respect to the unincorporated county. Water Supply. The Regional Water Supply Master Plan (RWSMP) serves as supporting data for several amended policies in the Potable Water sub-element of the Community Facilities and Services Element. The purpose of the RWSMP was to ensure an adequate, reliable and cost-efficient supply of potable water to meet the current and future needs of Lee County to the Year 2030 and beyond, considering both economic and environmental factors. The County's reliance on implementation of the RWSMP for this purpose is justified. Preparation of the plan was a very complex undertaking. In preparing the population projections on which the Regional Water Supply Master Plan relies, the County's consultant attended the technical staff meetings of the individuals with the Metropolitan Planning Association (MPO) charged with preparing the MPO population projections. The MPO Countywide population projections utilized in the RWSMP were prepared by estimating the number of permanent residents and taking into account a number of other economic characteristics and social characteristics such as the number of children per household, historic and expected natural and State trends, and the degree to which these trends will affect the future of Lee County. The Lee Plan, as well as the Comprehensive Plans of the other governmental jurisdictions in Lee County, were utilized in preparing the RWSMP. It was a plainly spelled out requirement for preparation of the Master Plan that it had to be consistent with the Comprehensive Plans of the County and cities in Lee County. The MPO population projections are reasonably accurate, and they are the best available data for purposes of planning water supply. The MPO projections are preferable to the "maximum theoretical" population accommodation used in the DCA's residential allocation analysis. Regardless of the appropriate analysis for purposes of determining whether a plan overallocates land, it would not be appropriate to plan water supply based on unrealistic population projections. The RWSMP uses MPO 2020 population projections that are somewhat different from, but reasonably close, to the 2020 population projections reflected in Figure 14 and used to support the FLUE of the Lee Plan. The special purposes of the RWSMP projections justify the differences. Besides, the differences are not large enough to prove beyond fair debate that the plan is not internally consistent. Wetlands Protection. Prior to the County's adoption of the EAR-based amendments, Goal 84 in the Conservation and Coastal Management Element of the Lee Plan and its objectives and policies included guides for local land development regulations in the protection of wetlands by establishing allowable land uses and their densities, and by establishing design and performance standards for development in wetlands. The County modified Policy 84.1.2 (renumbered 84.1.1) in part by deleting a prohibition against the construction of ditches, canals, dikes, or additional drainage features in wetlands. Ditches, canals and dikes could be constructed in wetlands to have beneficial effects. For example, a ditch could be built to increase the hydroperiod of a wetland and result in a benefit. A dike could enhance a mitigation area, which would also result in environmental benefits. Thus, the repeal of this prohibition could benefit wetlands. The 1984 data and analysis contained in the EAR recommended that the prohibition be deleted and instead suggested the use of performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. The EAR-based amendments to the Lee Plan do not include performance standards for the construction of ditches, canals, dikes, or other drainage features in wetlands. Instead, the County has modified Policy 84.1.1 (renumbered 84.1.2) in part by deleting the following language: Wetland regulations shall be designed to protect, conserve, restore, or preserve water resource systems and attendant biological functions, including: Preventing degradation of water quality and biological productivity. Preventing degradation of freshwater storage capabilities. Preventing damage to property and loss of life due to flooding. Preventing degradation of the viability and diversity of native plants and animals and their habitats. Assuring the conservation of irretrievable or irreversible resources. In place of those performance standards, the EAR-based Policy 84.1.2 provides: The county's wetlands protection regulations will be amended by 1995 to be consistent with the following: In accordance with F.S. 163.3184(6)(c), the county will not undertake an independent review of the impacts to wetlands resulting from development in wetlands that is specifically authorized by a DEP or SWFWMD dredge and fill permit or exemption. No development in wetlands regulated by the State of Florida will be permitted by Lee County without the appropriate state agency permit or authorization. Lee County shall incorporate the terms and conditions of state permits into county permits and shall prosecute violations of state regulations and permit conditions through its code enforcement procedures. Every reasonable effort shall be required to avoid or minimize adverse impacts on wet- lands through the clustering of development and other site planning techniques. On- or off-site mitigation shall only be permitted in accordance with applicable state standards. Mitigation banks and the issuance and use of mitigation bank credits shall be permitted to the extent authorized by applicable state agencies. As a part of the EAR-based amendments, the County also modified Policy 84.1.4 by deleting language that addressed permitted uses in wetlands and their densities, but that issue is now covered under renumbered Policy 84.1.1. The amendments added to Policy 84.1.4 the following provision: Land uses in uplands will be regulated through the implementation of the Land Development Code to avoid degrading the values and functions of adjoining and nearby wetlands. New Policies 84.1.2 and 84.1.4 in effect defer performance standards covering development in wetlands to the state and water management district permitting processes. The Lee amendments in part are an attempt to avoid duplicating what state agencies accomplish through their permitting programs. The evidence is that the state and water management district permitting processes include newly adopted Environmental Resource Permit (ERP) rules. These rules consider the type, value, function, size, condition and location of wetlands in determining how to protect them. The ERP rules also require proposed development to avoid or eliminate wetland impacts or, if not possible, to minimize and mitigate for them. The ERP rules also require consideration of the cumulative and long-term adverse impacts of development on wetlands in a comprehensive manner within the same water basin. The DEP and the Southwest Florida Water Management District also have adopted supplemental ERP rules covering only the jurisdiction of that water management district, which includes Lee County. By including a requirement that every state environmental permit shall be incorporated into county permits and that violations of a state permit also are violations of the county permit, the Lee Plan commits the County to assist the State in enforcing environmental permits in Lee County. Through this new emphasis on compliance and enforcement, Lee County will be providing valuable assistance to state environmental protection. Lee County's efforts will assist those agencies by devoting staff to compliance and enforcement efforts. Prior to the EAR-based amendments, the County had two wetland land use categories under the Lee Plan. These were described as the Resource Protection Areas (RPA) and Transition Zones (TZ). Guidelines and standards for permitted uses and development in the RPA and TZ were found in the policies under Objective 84.1 and 84.2, respectively. As a part of the EAR-based amendments, the County replaced the RPA and TZ categories with a single Wetlands category. This new Wetlands category includes all lands that are identified as wetlands under the statewide definition using the state delineation methodology. The County's definition of "wetlands" in the plan amendments covers more area than the areas previously known as "resource protection" and "transition zones." To that extent, the present amendments to the Lee Plan give greater protection to wetlands than the previous version of the Lee Plan. The Lee Plan, as amended, also contains other GOP's. Taken together, the GOP's ensure the protection of wetlands and their natural functions. Reservation of Future Road Right-of-Way. As a part of the EAR-based amendments, the County has deleted or amended certain policies in the Traffic Circulation Element of the Lee Plan regarding the acquisition and preservation of rights-of-way. Deleted Policy 25.1.3 provided that the County would attempt to reserve adequate rights-of-way for state and county roads consistent with state and county plans. The County also deleted Policy 21.1.7, which addressed the possibility of acquiring future rights-of-way through required dedications of land. Policy 21.1.7 provided: The previous policy encouraging the voluntary dedication of land for future right of way needs shall not be construed so as to prohibit the adoption of regulations requiring such dedication. However, any such regulations must provide for a rational nexus between the amount of land for which dedication is required and the impact of the development in question, and must also provide that such dedication, when combined with other means which may be used to offset the impact of development (such as, for example, the imposition of impact fees), does not exceed the total impact of the develop- ment in question upon the county's transportation network. The "previous policy encouraging the voluntary dedication of land for future right of way needs," referenced in Policy 21.1.7, above, was Policy 21.1.6, which has been renumbered 21.1.5. As modified, that policy provides: In order to acquire rights-of-way and complete the construction of all roads designated on the Traffic Circulation Plan Map, voluntary dedications of land and construction of road segments and inter- sections by developers shall be encouraged through relevant provisions in the development regulations and other ordinances as described below: Voluntary dedication of rights-of-way necessary for improvements shown on the Traffic Circulation Plan Map shall be encouraged at the time local development orders are granted. In cases where there are missing segments in the traffic circulation system, developers shall be encouraged to also construct that portion of the thoroughfare that lies within or abuts the development, with appropriate credits granted towards impact fees for roads. However, site-related improvements (see glossary) are not eligible for credits towards impact fees. Policy 21.1.7 provided policy guidance for LDRs in establishing required dedication of future rights-of-way as a means of acquisition, if the County chose to use that measure. Policy 21.1.6 (renumbered 21.1.5) provides policy guidance for LDRs in establishing voluntary dedication of future rights- of-way as another means of acquisition. By deleting Policy 21.1.7, the Lee Plan, as amended, is left with a policy that establishes only the voluntary dedication measure as a means towards acquiring future rights-of-way to facilitate the construction of roads designated on the Traffic Circulation Plan Map of the Lee Plan. The County has made these changes because legally it appears that reservation of future right-of-way may no longer be a viable option after the decision in Joint Ventures, Inc., v. Dept. of Transportation, 563 So. 2d 622 (Fla. 1990). The County's plan does more than just encourage voluntary dedication of rights-of-way. There are numerous policies in the Lee Plan that, taken together, adequately address the acquisition and preservation of rights-of-way. The following policies relate and achieve right-of-way protection: Policy 1.3, 1.6, 4.1.1, 4.1.2, 6.1.5, 16.3.5, 21.1.5, Objective 21.2, Policies 21.2.1, 21.2.3, 21.2.5, 21.2.6, 21.2.7, Policy 23.1.2, 23.1.4, 23.2.3, Policy 25.1.1, and 25.1.3. Under these policies, all new projects receive a review for voluntary dedication as against the Lee County official trafficways map and the facility need identified for the planning horizon of the future traffic circulation element and map. In addition, all new developments are required to mitigate off-site impacts through a payment of impact fees. They are also required to address and mitigate site-related impacts through the provision of site-related improvements at the developer's expense. Payment of impact fees and additional revenues generated through mitigation of site-related impacts, both generate revenues for the capital improvements programming process for purchase of rights-of-way. Accomplishing necessary site-related improvements pursuant to the Lee County program also frequently results in County acquisition of rights-of-way at the developer's expense. Mitigation of site-related impacts, as well as payment of proportional share and impact fees, are generally accomplished through Policy 1.8.3, Subsection 1, Policy 2.3.2, Objective 3.1, Policy 3.1.3, Policy 7.1.2, Policy 14.3.2, Objective 22.1, 23.1, and the policies thereunder, Policy 23.1.1, 23.1.3-.7, 23.2.6, Objective 24.2, Policy 25.1.2, Objective 28.2, and Policy 70.1.1, Subsection A-7. The County's primary method of acquisition of rights-of-way is through the Capital Improvements Element. The Capital Improvements Element does include projected costs to purchase needed rights-of-way. The Lee County Capital Improvements Program is accomplished through Goal 70 of the Lee Plan, which expressly includes acquisition of rights-of-way. Objective 77.3 - Wildlife. Before the EAR-based changes, Objective 77.3 of the Lee Plan was to: "Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system . . .." In pertinent part, the EAR-based amendment deleted the phrase "current complement of." The change does not alter the meaning of the objective. The concept of a baseline expressed by the deleted phrase also is inherent in the words "[m]aintain and enhance" and remains in the amended objective. Policy 77.11.5 - Endangered and Threatened Species. The EAR-based amendments deleted Policy 77.11.5, which stated: Important black bear and Florida panther use areas shall be identified. Corridors for public acquisition purposes shall be identified within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Data and analysis supports the deletion of the first two sentences. The use areas and public acquisition corridors have been identified. To reflect the new data and analysis, Policies 77.11.1 and 77.11.2 also were amended to provide for updating of data on sitings and habitat for these species and to encourage state land acquisition programs. The last sentence of former Policy 77.11.5 has been transferred and added verbatim to Policy 77.11.2. Related Policy 77.11.4 was also amended to reflect new data and analysis and to provide that, instead of just encouraging the acquisition of the Flint Pen Strand, the County shall continue an acquisition that is in progress. The Adoption Ordinance. As mentioned in connection with the Zemel amendment, Section 10 of the Lee County Ordinance 94-30, which adopted the plan amendments in issue in this case, purported to defer, until after the conclusion of these proceedings, the decision as to which adopted plan amendments would become effective. All of the parties now agree that the attempted deferral of this decision was "ultra vires." All of the parties except for the Zemels agree that, under Section 8 of the ordinance, the "ultra vires" part of the adopting ordinance is severable from the rest of the ordinance, which remains valid. The Zemels take the positions (1) that the state circuit courts have exclusive jurisdiction to determine whether the remainder of the ordinance is valid and (2) that the remainder of the ordinance is invalid. Section 8 of Ordinance 94-30 provided: [I]t is the intention of the Board of County Commissioners . . . to confer the whole or any part of the powers herein provided. If any of the provisions of this ordinance shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining provision of this ordinance. It is hereby declared to be the legislative intent of the Board of County Commissioners that this ordinance would have been adopted had such unconstitutional provisions not been included therein. The evidence was that, notwithstanding Section 8 of Ordinance 94-30, one purpose of Section 10 of the ordinance was to insure that intended packages of amendments would remain together and either become effective together or not at all. As discussed in connection with the Zemel amendment, the evidence was that one such package consisted of the amendments to the FLUM and to FLUE Policy 1.4.4, changing the land use designation of certain property to "Open Lands," and the amendments which delete the FLUM 2010 Overlay. There also was some less compelling evidence that amendments creating the Commercial Site Location Standards Map, FLUM 16, were intended to remain together with the amendments which delete the FLUM 2010 Overlay. No other examples of similar "packages" of plan amendments was shown by the evidence or argued by any party. RGMC's Standing. The Responsible Growth Management Coalition, Inc. (RGMC), was formed in 1988 to insure compliance with Chapter 163, Florida Statutes, and F.A.C. Rule Chapter 9J-5 and to conserve resources. RGMC has offices in Lee County and conducts educational programs in Lee. In addition, at the time of the hearing, RGMC had 157 members residing throughout Lee County, most or all of whom own property in Lee County. RGMC participated in the process leading to the adoption of the Lee plan amendments in issue in this case and submitted oral or written comments, recommendations or suggestions between the transmittal hearing and adoption of the plan amendments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order finding that the Lee Plan amendments are not in compliance and requiring as remedial action: That the FLUE's mixed land use categories be amended to include percentage distribution or other objective measurements of the distribution among allowed uses, whether by use of an appropriate 2020 Overlay or by other appropriate means. That a sector plan be adopted for Lehigh Acres, including appropriate plans for provision of infrastructure, to create more balanced development in Lehigh and, to the extent possible, to direct future population growth to Lehigh and away from CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. Such a sector plan could include minimum densities and target densities to support mass transit along transit corridors in Lehigh. That consideration be given to increasing densities in central urban areas and along transit corridors while at the same time reducing densities or adopting other plan provisions, such as the prohibition of certain kinds of development, to afford more protection to CHHA, DRGR and other environmentally sensitive areas, and Open Lands and Rural land (especially rural lands not situated so as to be potential future urban infill or expansion), including important wildlife habitat. One example would be the prohibition, or staging, of non-farm development in some or all rural areas. That, in accordance with Policy 75.1.4, undeveloped areas within CHHA be considered for reduced density categories (or assignment of minimum allowable densities where density ranges are permitted) in order to limit the future population exposed to coastal flooding. That the data and analysis supporting the remedial amendments account for units approved but not built and include both a population accommodation analysis based on maximum densities and an explanation of how the GOP's in the remedial amendments justify the resulting allocation ratio. That the remedial amendments include data and analysis of the impact of the resulting plan, as amended, on hurricane evacuation and clearance times and shelter planning, especially if, as part of remedial amendments, the 2010 Overlay is removed (or replaced). That the remedial amendments be based on data and analysis as to the need for commercial and industrial land, including the Alico amendment property. That the data and analysis extrapolate solid waste projections to 2020. That the sub-elements of the Community Facilities and Services Element (and other parts of the plan, as appropriate) be consistent with and based on data and analysis of future population predictions in light of any remedial amendments to the FLUE and FLUM. RECOMMENDED this 31st day of January, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0098GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: DCA's Proposed Findings of Fact. 1-17. Accepted. 18. There is a legal issue whether Ordinance 94-30 was adopted validly; otherwise, accepted. 19.-28. Accepted. Conclusion of law. Rejected in part: plan includes "guides" (but no "objective measurements"); and Commercial Site Location Standards Map 16 implies that other uses are required elsewhere in the districts where these sites are located. Otherwise, accepted. Last sentence, rejected. (Assumptions are in part "based on" the GOP's, but they also assume less development than permitted by the GOP's.) Otherwise, accepted. Accepted. Characterization "conservative" rejected as argument; otherwise, accepted. 34.-35. Accepted. 36. Accepted as being theoretically possible, but not likely to happen. 37.-38. Accepted. 39. Accepted as approximation of maximum theoretical residential capacity. 40.-46. Accepted. (However, as to 45 and 46, these numbers do not take into account industrial land needed to serve municipal populations that probably cannot or will not be supplied within the cities themselves.) First sentence, conclusion of law. Second sentence, rejected as not proven by a preponderance of the evidence. (The plan is "based on" the population projections, but allocates more land than needed to accommodate the population.) First sentence, conclusion of law; second sentence, accepted. 49.-50. Conclusions of law. 51.-52. First sentence, conclusion of law; rest, accepted. 53. First sentence, conclusion of law; second and third sentences, rejected as not proven by a preponderance of the evidence; last sentence, accepted. 54.-55. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 56. First sentence, conclusion of law; rest, accepted. 57.-58. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, accepted; third, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. First sentence, conclusion of law; second, rejected as not proven by a preponderance of the evidence; third, accepted (but does not prove non- compliance with the state plan.) First sentence, conclusion of law; rest, rejected as not proven by a preponderance of the evidence. 63.-64. Accepted. As to b.1. not timely raised; accepted as to b.2. (but easily extrapolated five more years to 2020); otherwise, rejected as not proven beyond fair debate. First two sentences of a. and b., accepted; otherwise, rejected as not proven beyond fair debate. (As to b., the discrepancies are not significant enough to create "internal inconsistency.") First sentence, rejected as not proven beyond fair debate; rest, accepted. Rejected as not proven by a preponderance of the evidence that deletion of the Overlay "accelerated development." (Rather, it allows--and, under certain conditions, would result it--development of more acreage sooner.) First sentence, accepted; rest, conclusion of law. First sentence, accepted; second, rejected as not proven beyond fair debate. First and third sentences, accepted; rest, rejected as not proven by a preponderance of evidence. (The population projections are easonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) Last sentence, rejected as not proven by a preponderance of evidence. (The RWSMP population projections are reasonably close to the Figure 14 projections. See also 66., above.) First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. See also 71., above. 74.-77. Accepted. 78. 2850 rejected as somewhat high (does not take into account some acreage removed from AC); otherwise, accepted. 79.-81. Accepted. 82.-83. Accepted. However, last sentences assume: (1) accurate inventory of developed acres in Orlando comparable to the land uses in AC under the Lee Plan; (2) 2850 acres of AC; and (3) developability of all AC acreage--including wetlands--for AC use. Those assumptions are not, or may not be, reasonable. 84. Rejected as not proven by a preponderance of evidence. See 82.-83. 85.-87. Accepted. However, as to 87., it is noted that the words "area," "surrounded by," and "nearby" are imprecise. Accepted; however, the degree of the sandstone aquifer's "susceptibility" to impacts depends on many factors. Last sentence, rejected as not proven by a preponderance of evidence that existing sources cannot produce any more; however, proven that new sources will be required, and otherwise accepted. Accepted. Last sentence, rejected as not proven by a preponderance of evidence that groundwater moves "to" the existing and planned wellfields. Otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence; rest, accepted. Fourth sentence, rejected as not proven by a preponderance of evidence; rest, accepted. First sentence, accepted; second, rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 97.-98. Accepted. Characterization of methodology as "flawed" rejected as not proven by a preponderance of evidence. (It depends on the use being made of the results of the methodology.) Otherwise, accepted. Accepted. Last sentence, legal conclusion. (Legally, it appears that reservation of future right-of-way may no longer be a viable option, and the County's amendments presume that it is not.) Rest, accepted. 102.-105. Accepted. 106. Rejected as not proven by a preponderance of evidence that voluntary dedication is not "effective" as one of several policies. Otherwise, accepted. 107.-108. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. Accepted. Second and third sentences, rejected as not proven by a preponderance of evidence that the state regulations are supposed to serve as "guidelines" or "guidance" for LDR's; rather, they are to serve in the place of duplicative County LDR's on the subject. Otherwise, accepted. Accepted. (However, appropriate comprehensive planning for wetlands occurs in other parts of the plan; the state regulations take the place of performance standards that would be duplicated in plan provisions and LDR's.) Last sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. Rest, accepted. (However, state regulations apply to some uplands that adjoin or are near to wetlands.) First sentence, accepted. (They don't guide the establishment of design and performance standard kinds of LDR's for any development in any wetlands; the state regulations take the place of design and performance standards that would be duplicated in plan provisions and LDR's.) Second sentence, rejected as not proven by a preponderance of evidence (that they are the "core wetland policies in the plan.") Third sentence, rejected as not proven by a preponderance of evidence and as conclusion of law. RGMC's Proposed Findings of Fact. 1.-8. Accepted. 9. Conclusion of law. 10.-15. Subordinate; conclusion of law; argument. 16. Accepted but subordinate. 17.-18. Rejected as not supported by record evidence. 19.-35. Accepted. 35(a). Conclusion of law. 36.-40. Accepted. 40(a). Conclusion of law. 41. Accepted. 41(a). Conclusion of law. 42.-44. Accepted. Accepted; however, the option to consider assignment of the minimum of a range of densities is in parentheses after the primary option to consider reducing densities. Largely argument. The objective and policy is "triggered" by any plan amendment, before and after the change from "A Zone" to "CHHA." See 47. Accepted. 47(a). Rejected as not proven beyond fair debate. (It is a question of internal consistency.) Accepted. 48(a). Argument and recommended remediation. Accepted. 50.-59. County motion to strike granted. (Issue not raised timely.) 60.-62. Accepted. See rulings on DCA proposed findings. County motion to strike granted. (Issue not raised timely.) 65.-66. Rejected as not proven by a preponderance of evidence. (The population projections are reasonably accurate and certainly more realistic than the "maximum theoretical" populations used in the DCA's residential allocation analysis.) 67.-73(a) County motion to strike granted. (Issue not raised timely.) See rulings on DCA proposed findings. Accepted. Rejected as not proven by a preponderance of evidence. 77.-78. 2800 rejected as somewhat high (does not take into account some acreage removed from AC); 1000 rejected as 400 low; otherwise, accepted. 79.-81(a). Accepted. Rejected as not proven by a preponderance of evidence. 82(a). Accepted. Conclusion of law. Rejected as not proven by a preponderance of evidence. Accepted. Accepted but "between" is imprecise. Accepted, but not likely. Accepted that two are mutually exclusive; otherwise, rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence. Rejected as not proven beyond fair debate. Accepted. Rejected as not proven by a preponderance of evidence that the lands are "adjacent"; otherwise, accepted. 93.-94. Accepted. Rejected as not proven beyond fair debate. Rejected as not proven by a preponderance of evidence. Accepted. Rejected as not proven by a preponderance of evidence. See rulings on DCA proposed findings. Rejected as not proven by a preponderance of evidence that it is "the reasonable professionally acceptable methodology." Rejected as unclear and as not proven by a preponderance of evidence. (Whether it is appropriate to apply a safety margin factor just to projected new growth can depend on the safety margin factor used and how far out the projection.) Rejected as unclear and as not proven by a preponderance of evidence. Rejected as being hypothetical argument. (Also, the ratios do not convert to percentages, i.e., 25:1 does not convert to a safety margin factor of 25 percent.) 104.-111(a). Rejected as not proven by a preponderance of evidence that "overallocations" occur in the earlier years of the planning timeframe; the relevant inquiry relates to the planning horizon. Also, as to 111., the reference should be to the year 2020. (Also, again the ratios do not convert to percentages.) Otherwise, accepted. 112.-118. Accepted as being paraphrased from part of the Sheridan Final Order. 119.-128. Accepted as being the adjustments to Figure 14B to yield unrealistic "maximum theoretical" capacity. 129.-130. Conclusions of law. 131. Accepted. 132.-133. Rejected as not proven by a preponderance of evidence. (The plan does not "propose development"; its projections on which the County bases its facilities and services are more realistic that the "maximum theoretical" capacity projections.) Also, these specific issues were not timely raised, and County motion to strike granted. 134. Accepted. 135.-140. Descriptions of what the various FLUM's show and what development has occurred over the years, accepted as reasonably accurate. Rejected as not proven by a preponderance of evidence that there were either official or unofficial "urban expansion lines." (It was not clear from the evidence whether the so-called "Proposed EAR Urban Boundary" shown on Lee Exhibit 53 was either an official or an unofficial "urban expansion line," and there was no other evidence of any "urban expansion lines.") Also, rejected as not proven by a preponderance of evidence that there was a "failure to maintain" them, or that the Southwest International Airport or the Westinghouse Gateway DRI "breached" the alleged "1988 urban expansion line." (The Westinghouse Gateway DRI was vested prior to 1984, and the regional airport development appears on FLUM's prior to 1988.) Also, development that occurred in earlier years is not particularly probative on the issues in this case (in particular, the amendment eliminating the Overlay). 141.-142. Accepted. 142(a). Rejected as not proven by a preponderance of evidence. Also, the specific issue of failure to establish an "urban expansion line" is not raised by amendments at issue in this case (in particular, the elimination of the Overlay), and was not timely raised by any party. 143.-146. Densities in land use categories, accepted as reasonably accurate. The rest is rejected as not proven by a preponderance of evidence. The plan provisions (or lack of them) in question have been determined to be in compliance. Primarily, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage of non-urban land uses prior to 2010. They also do not extend the Overlay to 2020. 147.-150. Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. 150(a). Rejected as not proven by a preponderance of evidence; also, conclusion of law. Conclusion of law. In part, accepted; in part conclusion of law. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, failure of the plan to include objective measures for distribution of uses in mixed land use districts contributes to the overallocation without the Overlay. Rejected as not proven by a preponderance of evidence; also, conclusion of law. 154.-160. Accepted. Rejected as not proven by a preponderance of evidence. (It remains to be seen how effective they will be in the long term.) Accepted. For the most part, the plan provisions (or lack of them) in question have been determined to be in compliance; however, with deletion of the Overlay, the amendments at issue open up for development in accordance with these plan provisions more acreage in potential wildlife habitat and corridor areas prior to 2010. (They also do not extend the Overlay to 2020.) See rulings on DCA proposed findings. 164.-168. Rejected because issues not raised timely. 169. Rejected as not proven by a preponderance of evidence and as conclusion of law. 170.-174. County motion to strike granted. 175.-179. Accepted. 180.-182. Conclusions of law. 183.-184. Rejected as not proven beyond fair debate. 185. Accepted. 186.-188. Rejected as not proven by a preponderance of evidence. 189. First clause, rejected (see 186.-188.); second clause, accepted. 190.-191. Rejected as not proven by a preponderance of evidence. 192.-193. Rejected as not proven beyond fair debate. 194. Conclusion of law. 195.-196. Rejected as not proven by a preponderance of evidence. 197.-198. Except for typographical errors, accepted. (However, the last sentence of former Policy 77.11.5 was transferred verbatim to amended Policy 77.11.2.) Rejected as not proven by a preponderance of evidence to be the entire justification. (Also justified by updated data and analysis--namely, that the habitats have been identified and mapped--and by amended Policies 77.11.1 and 77.11.2, which respond to the new data and analysis.) Argument. 201.-204. Cumulative. (See 154.-157.) 205.-206. Rejected as not proven by a preponderance of evidence. 207.-208. Accepted. Accepted (although not demonstrated by Lee Exhibit 49). Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as not clear from the evidence that the Zemel property is connected to and part of the Cecil Webb Wildlife Management Area. Otherwise, accepted. 213.-216. Accepted. 217.-218. Not an issue; but, if an issue, rejected as not proven by a preponderance of evidence (which is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 219.-222. Not an issue; but, if an issue, rejected as not proven beyond fair debate (which, again, is not to say that it was proven that the land should be designated for higher densities, or that 1 unit per 5 acres or lower densities are not suitable.) 223. Not an issue; but, if an issue, rejected. See 217.-222. Zemels' Proposed Findings of Fact. 1. Accepted; however, relatively little of the Zemel property abuts either U.S. 41 or Burnt Store Road. 2-10. Accepted. Last clause rejected as not proven beyond fair debate; another option would be to amend the definition. Otherwise, accepted. Last clause, rejected as not proven by a preponderance of evidence that they are not "sparsely developed." Otherwise, accepted. 13.-15. Accepted. First sentence, rejected as not proven by a preponderance of evidence; otherwise, accepted. First sentence, rejected as not proven by a preponderance of evidence as to the south; otherwise, accepted but irrelevant to the application of the definition. Accepted; however, not proven by a preponderance of evidence that the Zemel property is not north of "sparsely developed areas." (Emphasis added.) Rejected as not proven by a preponderance of evidence. Accepted. First sentence, rejected as not proven by a preponderance of evidence. Rest, accepted in large part and rejected in part as not proven by a preponderance of evidence. Clearly, at least a good portion of the Zemel property is "extremely remote" from all existing public services. Some portions of the Zemel property are not "extremely remote" from some public services, but not proven by a preponderance of evidence that at least some public services are not "extremely remote" from all portions of the Zemel property. Also, in addition to existing public services, c) and e) also refer to future public services. Rejected as not proven by a preponderance of evidence that no agricultural activities have been profitable (only that row crop farming has not); otherwise, accepted. Last sentence, not proven by a preponderance of evidence; otherwise, accepted. Rejected as not proven by a preponderance of evidence. Rejected as not proven by a preponderance of evidence (as to second and third sentences, because of the existence of the Open Lands category.) Accepted (although there also are other data and analysis in the record). First sentence, rejected as not proven by a preponderance of evidence. (Not all of the statements are "conclusory".) Second, accepted. Third, rejected; see 21., above. 28.-29. Accepted. (However, as to 29., it refers to existing access.) First sentence, accepted. A. - rejected as not proven by a preponderance of evidence that the analysis "fails to recognize" the roads in northern Cape Coral (although it clearly does not mention them); otherwise, accepted. B. - rejected as not proven by a preponderance of evidence that the analysis "appears to ignore" the water line along U.S. 41 (although it clearly does not mention it); otherwise, accepted. C. - accepted; however, the "proximity" is to a point on the periphery of the property. Last sentence, rejected as not proven by a preponderance of evidence. Accepted. Second sentence, rejected as not proven by a preponderance of evidence except using the County's methodology. Otherwise, accepted. 33.-34. Accepted. Second sentence, rejected as not proven by a preponderance of evidence. (The County in effect "borrowed" the DCA's data and analysis.) Rest, accepted. Accepted, assuming the County's methodology; however, there also are other concerns. Accepted. First sentence, accepted; rest, rejected as not proven by a preponderance of evidence. As to the second, there is rural land to the northwest; as to the third, there also is resource protection land in Charlotte County to the north, and the "enclave" is large; as to the fourth, no I-75 boundary would appear to apply to Township 43 even if it might appear to apply to the south. Rejected as not proven by a preponderance of evidence. (The analysis compares the costs and difficulty in Yucca Pen to Lehigh and Cape Coral; in terms of such a comparison, the differences are significant.) 40.-45. Accepted. County's Proposed Findings of Fact. 1.-2. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence; third, accepted (assuming "actual bona fide business" means a for-profit commercial enterprise.) Accepted. Rejected as contrary to the greater weight of the evidence that the DCA "agreed with and relied on" the County's analysis. (The DCA utilized the analysis for purposes of its objection.) Otherwise, accepted. Accepted. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence that the determination was "on a largely subjective basis" (although some determinations necessarily were at least partly subjective); otherwise, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the Overlay was designed "without policy considerations" or that historic growth trends were "simply extrapolated." (The policy considerations already in the plan were utilized, and an effort was made to predict growth in light of those policy considerations. It is true, however, that the Overlay was not designed to further direct growth patterns within the planning districts and subdistricts.) Accepted (but not particularly probative). 11.-14. Accepted. Rejected in part as contrary to the greater weight of the evidence to the extent that it implies that the impact of the plan was not taken into consideration in predicting future population. See 9., above. Otherwise, accepted. Firsts sentence, accepted. As to second and third, not clear from the evidence what if anything was submitted in the way of data and analysis for the remedial amendments. They were not introduced in evidence or referred to by any party. As to the last sentence, it is not clear from the evidence exactly how the 2.11 factor was derived or whether it took into account the 2010 population accommodation for Lehigh (282,000 people in this analysis). (T. 1267-1269.) If the 507,000 units of accommodation did not include Lehigh, the total accommodation of 1.06 million also could not have included Lehigh. Accepted. First three sentences, argument. Rest, accepted. 19.-20. Accepted. 21. Rejected as unclear what "that allocation" refers to. (Accepted if it means "up to 125 percent"; rejected as contrary to the greater weight of the evidence if it means "200 percent.") 22.-23. Accepted. First sentence, accepted; second, conclusion of law. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. Rejected as contrary to the greater weight of the evidence. Subordinate. Rejected as contrary to the greater weight of the evidence. (In addition, a more meaningful comparison would be between the adopted EAR 2020 plan without a 2010 Overlay and a 2020 plan with an overlay extending the 2010 Overlay out another ten years.) Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted (as accurate recitation of testimony) but subordinate to facts contrary to those found. 30.-32. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (As to first sentence, see Sheridan Final Order.) Accepted. First and last sentences, accepted. Rest, rejected as contrary to the greater weight of the evidence. Such an approach would direct population to Lehigh, which might be the best thing to do. (At this point in time, development of Lehigh under a good Sector Plan might be able to change what was classic urban sprawl under past conditions into well-planned growth under present and future conditions.) It might also direct population to other, non- urban areas if densities were not low enough in them. Finally, Nelson suggested other ways of bring the plan into compliance without the Overlay. 38.-42. Accepted. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence. The County did not seek to "match the available land to meet that growth"; rather, it checked to see if what was on the FLUM would "accommodate" (i.e., hold) the population projected for 2020. Last sentence, rejected in that RGMC challenged the opinion in its response to this proposed finding; otherwise, accepted. Rejected that the County "cannot alter the future development" of Lehigh or that Lehigh is "beyond the reach of" the comprehensive plan; otherwise, accepted. The 199 acres is part of the 685 acre total. Otherwise, generally accepted. However, significant additional growth can be expected in coastal areas, and there is rural land both within and outside the so-called "I-75, U.S. 41 corridor"; presumably, the existence of this land is the reason the finding is couched in the terms: "the remaining area . . . is largely . . . along the I-75, U.S. 41 corridor"; and "all future growth . . . will predominantly occur." First and third sentences, conclusion of law; second, accepted. Conclusion of law. First sentence, accepted but subordinate; also, the rule citation is incorrect; in addition, they testified to the effect of removing the Overlay. Second sentence, conclusion of law. Accepted. (The effect of the Overlay is in the extent of the indicators that exist.) Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted; third, conclusion of law; fourth, accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. First sentence, accepted; second, conclusion of law. First sentence, accepted. Second, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is "clear"; also, conclusion of law. 58.-60. Accepted. Rejected as contrary to the greater weight of the evidence. (The same conditions exist without the Overlay.) Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. First sentence, rejected; second, accepted. Rejected as contrary to the greater weight of the evidence that the Overlay did not have any "true policy bias or consideration built into it"; otherwise, accepted. Accepted. (However, the same conditions exist without the Overlay.) 68.-71. Accepted. Rejected as contrary to the greater weight of the evidence that "removing Cape Coral . . . reduces the FLUM capacity"; rather, it represents a change in the methodology of evaluating the FLUM capacity. Otherwise, accepted. Accepted. 74.-78. Accepted. However, it appears that the County's treatment of Lehigh essentially was a device to enable it to have the projected population in the year 2020 treated as if it were the capacity of Lehigh in the year 2020. 79.-81. First sentence of 79, unclear; rest, accepted. However, only certain retail commercial are restricted to the locations on Map 16; others can go either there or elsewhere. 82.-85. Conclusion of law. First sentence, conclusion of law; rest, accepted. Accepted. Rejected as contrary to the greater weight of the evidence that the ELUM "represents the growth trends" (rather, it shows what is there now) or that, except for Lehigh, growth only "is occurring in the north/south core." Otherwise, accepted. Accepted. First and last sentences, rejected as contrary to the greater weight of the evidence. ("Barrier" is too strong; "obstacle" or "hindrance" would be accepted.) Otherwise, accepted. 91.-95. Generally, accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence and as conclusion of law that they are "objective measures" and "responsive to . . . 5(c)"; otherwise, accepted. Accepted. First sentence, accepted; second, accepted (although some higher, urban densities are in coastal areas, and there remains some rural land in the so-called "north/south core"); third, rejected as contrary to the greater weight of the evidence that a "large impact" is "clear"; fourth, rejected as contrary to the greater weight of the evidence that the "segmentation" is absolute but otherwise accepted. Except for Lehigh, generally accepted. (What is missing are "objective measures.") Generally, accepted. First sentence, conclusion of law; second, rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence that it is "nearly identical." Third sentence, rejected as contrary to the greater weight of the evidence that it necessarily is not excessive. The evidence was that it is not necessarily excessive, but it could be depending on many factors, including whether it was calculated based on total capacity on the planning horizon or incremental growth during the planning timeframe, and the length of the planning horizon. Otherwise, accepted. First two sentences, accepted; last two, rejected as contrary to the greater weight of the evidence. 107.-108. Accepted. 109. First sentence, rejected as contrary to the greater weight of the evidence; second, accepted. 110.-117. Rejected as contrary to the greater weight of the evidence. The effect of removing the Overlay is to allow more development sooner throughout the County. The effect of the increased development would depend on how it occurs. As to 116 and 117, one purpose of the Overlay was to require a mix of uses in mixed land use districts. First sentence, rejected. See 110-117, above. Rest, accepted. Cumulative. Last sentence, subordinate argument; except for apparent typographical error in third sentence, rest accepted. Last sentence, rejected as unclear from the evidence why there has been no agricultural use; otherwise, accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. ("Significance" depends on other factors as well, including the amount of acreage in other mixed land use categories that allow light industrial.) Assuming that the "127 additional acres" refers to uplands, the rest is accepted. 124.-125. Rejected as contrary to the greater weight of the evidence and, in part, conclusion of law. There was no evidence of any serious risk of a taking. If these were legitimate reasons to redesignate the Alico property AC, it would be questionable if any DRGR would survive. First sentence, accepted (assuming the County's efforts are otherwise "in compliance"; second, subordinate argument; third, cumulative. Accepted. (However, the County's analysis does not include acreage in other mixed land use categories that allow light industrial.) First four sentences, accepted but irrelevant; penultimate, rejected as contrary to the greater weight of the evidence that it is "safe to assume"; last sentence, accepted. First two sentences, accepted; third, rejected as contrary to the greater weight of the evidence that mining would "permanently preempt" commercial use, but accepted that subsequent commercial use would be much less likely; fourth sentence, accepted (except for typos); last sentence, accepted. Second sentence, rejected as not clear that it "won't be available," but accepted that it may not, depending on when it is "needed." Rest, accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence that it is "clear" but accepted that it probably "will not pose a significant threat"; third and fourth, accepted; fifth, rejected as contrary to the greater weight of the evidence that there is no recharge, but accepted that recharge is not better than average; rest, accepted. Accepted (with the understanding that the last sentence refers to surface water runoff). First sentence, accepted; second and third, rejected as contrary to the greater weight of the evidence that the Gulf Utilities-San Carlos wellfield is the only wellfield in the water table aquifer (otherwise, the third sentence is accepted). 134.-136. Accepted. Accepted. Last sentence, rejected as contrary to the greater weight of the evidence. (There also were other internal consistency issues concerning the date.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. 140.-141. Accepted. 142. Irrelevant; issue not timely raised. 143.-144. Accepted. First sentence, accepted (in that DCA and RGMC did not prove internal inconsistency beyond fair debate); second, third and fourth sentences, accepted (but do not rule out the possibility of impacts from removal of the Overlay); rest, rejected as contrary to the greater weight of the evidence. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 147.-149. Accepted. First two sentences, argument; third, rejected as contrary to the greater weight of the evidence; last, accepted. First sentence, rejected as contrary to the greater weight of the evidence in that a reduction in densities is not necessarily positive; rest, accepted. 152.-155. Accepted. First sentence, accepted (assuming it refers to the deleted first sentence of former Policy 84.1.2, now 84.1.1); second, rejected as contrary to the greater weight of the evidence since its context requires the opposite interpretation. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that the report "specifically recommends the amendment . . . in the fashion that Lee County has done." Otherwise, accepted. 159.-160. Accepted (159, based on the plan language and Joyce testimony, as well as the Deadman testimony.) First sentence, accepted; second, conclusion of law. Rejected as contrary to the greater weight of the evidence; conclusion of law; subordinate. Accepted; subordinate. Accepted. Rejected as contrary to the greater weight of the evidence that the circuit court judgment was based entirely on new data and analysis; otherwise, accepted. 166.-169. Accepted. Conclusion of law. Rejected as contrary to the greater weight of the evidence. (Use of the "allocation ratio" is being determined in this case.) Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order can be said to be a DCA "publication." Otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that Joint Exhibit 17 gives some indication of how to apply an "allocation ratio"; accepted that Joint Exhibit 17 does not fully explain how to apply the "allocation ratio." Accepted. Rejected as contrary to the greater weight of the evidence to the extent that the Sheridan Final Order constitutes such evidence. Accepted. Rejected as contrary to the greater weight of the evidence. Atlantic Gulf's Proposed Findings of Fact. 1.-3. Accepted. 4. Accepted (but do not rule out the possibility of impacts from removal of the Overlay). 5.-7. Accepted. 8.-10. In part conclusions of law; otherwise, accepted. (The incorporation of the DEP and SWFWMD permitting requirements only replaces former County permitting requirements; other parts of the amended plan's provisions relating to wetlands protection remain in effect.) Alico's Proposed Findings of Fact. 1.-13. Accepted. Rejected as contrary to the greater weight of the evidence in that the phrase "substantial recharge to aquifers most suitable for future wellfield development" may distinguish DRGR-suitable land from other land by the nature of the aquifer it recharges, not by the relative amounts of recharge. However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that it is in the "area" of "most favorable locations for physical withdrawal of water from those aquifers." However, the suitability of the AC amendment property for DRGR is questionable, and redesignation to AC is not prohibited. 16.-19. Accepted. Accepted (assuming it refers to the DCA submitting); subordinate. Accepted. 22.-24. Subordinate argument and conclusion of law. 25.-34. Accepted. 35.-36. Accepted; subordinate. Last sentence, accepted; rest, subordinate argument and conclusion of law. Accepted (except, in s. and u., it should read "Six Mile Cypress Basin.") Rejected as contrary to the greater weight of the evidence that the list is not exhaustive ; otherwise, accepted. 40.-41. Accepted. Rejected as contrary to the greater weight of the evidence in that Policy 7.1.1 just says applications are to be "reviewed and evaluated as to" these items; it does not say that "negative impacts" must be "avoided." Rejected as contrary to the greater weight of the evidence in that Goal 12 and Standard 12.4 under it are renumbered under the current amendments as Goal 11 and Standard 11.4; otherwise, accepted. Rejected as contrary to the greater weight of the evidence in that former Standard 14.1 has been transferred to Policy 7.1.1. under the current amendments. See 40 and 42, above. Accepted. First sentence, rejected as contrary to the greater weight of the evidence that former designation as DRGR is the only reason why water quality and quantity issues arise; second, cumulative. Cumulative. First two sentences, cumulative; rest, accepted. First two sentences, accepted; rest, cumulative. First sentence, unclear which fact is "in dispute"; rest, accepted. (The AC amendment property probably would not be developed as a producing wellfield.) First sentence, accepted; second, cumulative. First two clauses of first sentence, accepted; rest, conclusion of law. First sentence, cumulative; rest, accepted. First sentence, accepted; second, conclusion of law. 55.-56. Cumulative. 57.-59. Accepted. First two sentences, accepted; rest, cumulative. Accepted. First sentence, rejected as contrary to the greater weight of the evidence; second, third and fourth sentences, accepted; rest, cumulative. First sentence, argument; rest, accepted. Accepted. 65.-66. In part, cumulative; otherwise, accepted. 67.-70. Accepted. First sentence, argument; middle sentences, accepted; penultimate sentence, rejected as contrary to the greater weight of the evidence in that he made no blanket concession, instead conditioning interception on water table levels; last sentence, accepted. First sentence, rejected as contrary to the greater weight of the evidence (that there's no "realistic way" "you" can do it); rest, accepted. 73.-74. Cumulative. Accepted. Cumulative. Accepted; subordinate and unnecessary. Cumulative. Beginning, cumulative; last sentence, subordinate argument. First sentence, accepted; second, rejected as contrary to the greater weight of the evidence in that the influence of additional pumping has not been analyzed; last, accepted. Accepted. First two sentences, conclusion of law; last, accepted. Subordinate argument. First sentence, conclusion of law; second, accepted; third, rejected as contrary to the greater weight of the evidence in that the "performance standards" say to maintain current protection and expand protection "to encompass the entire area." Accepted. (However, it is far from clear that the BMP's referred to in Policy 1.2.2 are the same ones referred to in this proposed finding.) Accepted. 87.-88. Subordinate argument. Cumulative or subordinate argument. Unclear what is meant by "several generations of numbers." Otherwise, cumulative. Cumulative. Accepted but subordinate. Accepted. (However, he also raised the question that the County's analysis did not include acreage in other mixed land use categories that allow light industrial.) 94.-95. Accepted. First sentence, subordinate argument; second, rejected as contrary to the greater weight of the evidence in that they conceded need is not based exclusively on resident and seasonal population, not that it is not based at all on it; third, accepted. First sentence, accepted; rest, subordinate argument. Accepted. Accepted. (Nor was there testimony that there is a need based on population.) Accepted. First sentence, accepted; second, conclusion of law, cumulative, and rejected as contrary to the greater weight of the evidence in that there was evidence of other motivations for providing the information as well. Accepted. (However, the analysis was limited to Orlando, and Nelson's method resulted in no need found.) Subordinate argument; cumulative. Subordinate argument. Accepted. (As to third sentence, neither did any other witness.) 106.-107. Accepted. Last sentence, subordinate argument; penultimate, rejected as contrary to the greater weight of the evidence (or, at least, unclear); rest accepted. Cumulative. 110.-113. Accepted. Cumulative. First sentence, conclusion of law; second, accepted as an excerpt from the dictionary, but argument and conclusion of law that it is the "plain meaning" of the word "need," as used in 9J-5. (Also, citation to Joint Exhibit 11, p. 9, is not understood.) Argument and cumulative. 117.-118. Accepted. 119.-120. Conclusion of law, argument and cumulative. 121. Last sentence, accepted. (It is not clear from the evidence that the designation of the property as "Panther Priority 2" on Lee Exhibit 42, introduced by RGMC, means that the County has identified it as being "in need of conservation.") Rest, conclusion of law, argument and cumulative. 122.-126. Conclusion of law and cumulative. To the extent that accepted proposed findings are not essentially incorporated into the Findings of Fact of this Recommended Order, they were considered to be either subordinate or otherwise unnecessary. COPIES FURNISHED: David Jordan, Esquire Deputy General Counsel Bridgette Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Timothy Jones, Esquire Thomas L. Wright, Esquire Assistant County Attorney Post Office Box 398 Fort Myers, Florida 33902-0398 Thomas W. Reese, Esquire 2951 61st Avenue So. St. Petersburg, Florida 33712 Elizabeth C. Bowman, Esquire Connie C. Durrence, Esquire Hopping Boyd Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Russell P. Schropp, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Charles J. Basinait, Esquire Henderson, Franklin, Starnes & Holt Post Office Box 280 Fort Myers, Florida 33902 Kenneth G. Oertel, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Neale Montgomery, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Steven C. Hartsell, Esquire Pavese, Garner, Haverfield, Dalton, Harrison & Jensen Post Office Drawer 1507 Fort Myers, Florida 33902 Thomas B. Hart, Esquire Humphrey & Knott, P.A. 1625 Hendry Street, Suite 301 Post Office Box 2449 Fort Myers, Florida 33902-2449 Michael J. Ciccarone, Esquire Goldberg, Goldstein, & Buckley, P.A. Post Office Box 2366 Fort Myers, Florida 33902 Greg Smith, Esquire Governor's Legal Office The Capitol - Room 209 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission The Capitol - Room 2105 Tallahassee, Florida 32399-0001
The Issue The issue is whether Citrus County's (County's) small-scale development amendment CPA-09-16 adopted by Ordinance No. 2009- A07 on May 26, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner resides and owns property at 10662 West Halls River Road, Homasassa, Florida, in the southwestern part of the County. According to a County aerial map, the property appears to be 0.68 acres in size and is rectangular-shaped, with the eastern side fronting on the Homasassa River (River), while the western side adjoins West Halls River Road (also known as County Road 490A), a two-lane designated collector roadway for the County. See Intervenor's Exhibit 8. That road dead-ends a mile or so farther to the southwest in a subdivision known as Riverhaven. Petitioner has owned the property since April 1992. Intervenor, a limited liability corporation, acquired ownership of a 47.5-acre parcel in May 2007, which lies directly west-northwest of Petitioner's property and across West Halls River Road. In early 2009, it filed an application with the County seeking a change in the land use on 9.9 acres of the larger parcel from CL to RVP. The smaller parcel's address is 10565 West Halls River Road and is a short distance north of Petitioner's lot. The change in land use was requested because Intervenor intends to place a recreational vehicle (RV) park on the 9.9-acre parcel. On page 10-103 of the Plan's Future Land Use Element (FLUE), the CL land use is described in relevant part as follows: This land use category designates those areas having environmental characteristics that are sensitive to development and therefore should be protected. Residential development in this district is limited to a maximum of one dwelling unit per 20 acres and one unit per 40 acres in the Federal Emergency Management Agency's V-zone. On page 10-112 of the FLUE, the RVP land use is described in relevant part as follows: This category is intended to recognize existing Recreational Vehicle (RV) Parks and Campgrounds, as well as to provide for the location and development of new parks for recreational vehicles. Such parks are intended specifically to allow for temporary living accommodation for recreation, camping, or travel use. After the application was filed and reviewed by the County staff, a report was prepared by the then County Senior Planner, Dr. Pitts, on April 14, 2009, recommending that the application be approved. See Petitioner's Exhibit 5. The report noted that "this site is appropriate for some type of RV Park development subject to an appropriately designed master plan." Id. Although forty-nine RV units could potentially be placed on the parcel, the report noted that due to significant "environmental limitations of the area," the site "may not be able to be designed at maximum intensity for this land use district." Id. The "environmental limitations" are approximately 1.64 acres of wetlands that are located on four parts of the property, wetlands on neighboring properties, and "karst sensitivity." The report noted that these environmental issues would have to be addressed in a master plan to be submitted by the applicant before development. The matter was then favorably considered by the County's Planning and Development Review Board by a 4-1 vote on May 7, 2009. On May 26, 2009, the Board of County Commissioners (Board) conducted a public hearing on the application. By a 3-2 vote, the Board adopted Ordinance 2009-A07, which approved the change on the GFLUM. See Petitioner's Exhibit 2. Petitioner and Intervenor appeared at the hearing and submitted comments regarding the amendment. See County Exhibit 3. Accordingly, both are affected persons and have standing to participate in this matter. Because the size of the parcel was less than ten acres, the map change was not reviewed by the Department of Community Affairs. See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. On June 24, 2009, Petitioner filed with DOAH his Petition challenging the small-scale development amendment. As summarized in the parties' Joint Prehearing Stipulation, Petitioner contends that the map change "is not consistent with [the County's] adopted comprehensive plan because such is incompatible with the character of the properties surrounding the subject property and because such is incompatible with [the] environmentally sensitive nature of the subject property and the properties surrounding the subject property." See Joint Prehearing Stipulation, pages 1-2. More specifically, Petitioner contends the map change is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8. The Subject Property Although its precise dimensions are not of record, from around 1952 until 1985, a golf course was located on a large tract of land west of West Halls River Road, where Intervenor's larger parcel of property is located. Currently, the larger parcel is vacant and undeveloped. The subject property (as well as the entire larger parcel) is classified as CL (Low Intensity Coastal and Lakes), which allows one dwelling unit per twenty acres. Because the property is in the coastal high hazard area (CHHA), the amendment allows five RV units per acre, or a total of forty-nine. In all likelihood, however, the number would be somewhat smaller due to "severe" environmental constraints discussed above. See Finding 5, supra. The new land use also allows a small amount of retail development to serve the RV customers. The 9.9-acre parcel surrounds a one-acre parcel that adjoins West Halls River Road, also owned by Intervenor, and carries a CLC (Coastal and Lakes Commercial) land use designation. A vested eighteen-unit RV park (Sunrise RV Park) has been located on the one-acre parcel since the late 1980s. Except for the small one-acre enclave, the property is bordered on three sides by vacant, unimproved property, all designated as CL. According to Petitioner, Sunrise RV Park has a small number of "dilapidated" trailers and "a bunch of junk stored on the front lawn." This was not disputed. The vacant lot directly south of the larger parcel, comprised mainly of wetlands, is owned by Glen Black, who objects to the map change. Across the roadway, the area north and south of Petitioner's property along the River is classified as CL and is "predominately residential." Besides the residential uses on the River side of the road, Intervenor identified around six non-conforming businesses (mainly former fish camps) that were vested prior to the adoption of the current Plan and that are interspersed with the residential lots. (Under current Plan provisions, they would not be allowed.) Around one-quarter mile or so south of the subject property is the Magic Manatee Marina (Marina) located on a two-acre parcel facing the River.2 A small fish camp with six "rental cottages" lies a few lots north of the Marina. There are also four small condominium buildings with dock facilities (known as Cory's Landing) just north of the fish camp. The aerial map reflects that all other lots south of Petitioner's property are used for residential purposes. Besides the other residential lots north of Petitioner's property, there are nine rental units at a vested "fishing resort" on a parcel slightly less than two acres in size located at 10606 West Halls River Road. Around one-half mile further north at the confluence of the Halls and Homasassa Rivers is a vested restaurant, Margarita Grill. Except for these vested non-conforming uses, all other lots are used for residential purposes, and the entire strip of land adjoining the River is classified as CL. North of Intervenor's 47.5-acre parcel, but not directly adjoining it, and on the western side of West Halls River Road, is a large unevenly-shaped tract of land classified as RVP, on which the Nature's Resort RV Park is located. That facility is authorized to accommodate around three hundred RVs. The entrance to that park from West Halls River Road appears to be at least one-quarter mile or more north of the subject property. Petitioner's Objections Petitioner contends that the amendment is not in compliance because it is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8, which concern environmental and compatibility requirements. These provisions are discussed separately below. Policy 17.2.7 Policy 17.2.7 provides as follows: The County shall guide future development to the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations and the availability of necessary services. Petitioner argues that the subject property is in an extremely sensitive environmental area due to extensive wetlands and a karst sensitive landscape. (Karst is a limestone underground rock structure that is very porous and through which pollutants can easily travel.) He further points out that the property is located within the CHHA. Given these environmental constraints, and the proposed increase in density, Petitioner contends the map change will run counter to the above policy. There are no provisions within the Plan that prohibit the location of an RV park within the CHHA. Policy 17.6.12 imposes numerous requirements for RV parks, including a thirty percent open space requirement, restrictions on densities, wetland protection, upland preservation, clustering, and connection to regional central water and sewer service. These policy restrictions have been implemented by more specific land development regulations (LDRs) that limit the density and intensity of RVs and the types of RVs (e.g., park models) that can be placed in an RV park located within a CHHA. In this case, because the property is in a CHHA, the LDRs impose a five- RV per acre limitation, as opposed to the normal fourteen RVs per acre in non-CHHA areas, and for evacuation purposes, park models are prohibited. Further, the RV park must be served by regional central water and sewer services. All land in the County west of U.S. Highway 19, including the subject property, is karst sensitive. As such, any development west of U.S. Highway 19 must meet certain design standards to ensure that the water supply is not threatened. The County says that these concerns must be addressed during the site approval (development) process. The record shows that there are four jurisdictional wetland sites on the parcel totaling 1.64 acres. There are also wetlands on the surrounding property. Because of these environmental constraints, Dr. Pitts (the former County Senior Planner) stated that it is "highly unlikely" that Intervenor "can develop at 49 units." He further pointed out that while it is "certainly possible to do it at a smaller number," there would be one hundred percent wetland protection through setbacks both to wetlands on the subject parcel, as well as the surrounding area, a thirty percent open space requirement on the site, a ten percent area dedicated to recreational uses, and minimum buffers on the side of the property facing West Halls River Road. For RV parks, pertinent LDRs adopted to implement the Plan require that the developer avoid all wetlands. Policy 17.2.7 expresses a County planning decision that future development be directed to "the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations." (Emphasis added) According to Dr. Pitts, the subject property has "severe" environmental limitations, and that "it will be difficult to design the site [in a way] that meets the standards of the comprehensive plan and the land development code." Notwithstanding the other provisions within the Plan and LDRs that place limitations on RV park development in an effort to satisfy environmental constraints, see Finding 18, supra, the subject property is clearly not "the most appropriate area, as depicted on the GFLUM" for new development, nor is it an area "with minimal environmental limitations." In fact, the amendment does just the opposite -- it directs new commercial development to an area with severe environmental limitations. Therefore, the greater weight of evidence supports a finding that the map change is internally inconsistent with Policy 17.2.7. Policy 17.2.11 Petitioner next contends that the plan amendment is contrary to the Plan's basic strategy of protecting environmentally sensitive areas, as set forth in FLUE Policy 17.2.11, which reads as follows: Consistent with the Plan's basic strategy for protection of environmentally sensitive areas, the following guidelines shall apply to all development in the Coastal, Lakes, and Rivers Region: No increase in residential density should be approved except for Planned Development standards already contained in the Plan. No additional high intensity non-residential land uses shall be approved for this region. Specifically new GNC [General Commercial] and IND [Industrial] districts shall be avoided. The subject property is within the Coastal Region and therefore subject to these guidelines. See Intervenor's Exhibit 3, page 10-3. On page 10-150 of the FLUE, the narrative text states in part that "with increasing development activity and growth in the coming years, existing restrictions on the density/intensity of land use should be maintained and enhanced to provide additional protection to this sensitive region." According to the Plan, a "GNC district allows potentially high density/intensity development" and "should not be located in areas of the County deemed to be environmentally sensitive areas." See Intervenor's Exhibit 3, page 10-110. It further provides that "[n]o new GNC shall be allowed in the coastal, lakes and river region." Id. Therefore, new GNC development should not be allowed in the Coastal Region. Although an RV park is a commercial use, it is not a GNC use. Further, the five-units per acre limitation is not considered a high-intensity non-residential use. Therefore, while the policy serves a laudable purpose, it does not prohibit RVP development within the Coastal Region. Therefore, the map change is not internally inconsistent with Policy 17.2.11. Policy 17.2.8 Petitioner's final objection is that an RV park is not compatible with the surrounding area. He goes on to contend that by placing an RVP designation adjacent to a large tract of CL land, the County has contravened FLUE Policy 17.2.8. That policy reads as follows: The County shall utilize land use techniques and development standards to achieve a functional and compatible land use framework which reduces incompatible land uses. Because compatibility is not defined in the Plan, Florida Administrative Code Rule 9J-5.003(23) is helpful in resolving this issue.3 That rule defines the term "compatibility" as follows: (23) "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. In its Proposed Recommended Order, Intervenor also suggests that the definition of "suitability" is relevant to this issue. That term is defined in Rule 9J-5.003(128) as follows: (128) "Suitability" means the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development. Petitioner characterized the area around his home as quiet, peaceful, and "all residential." He noted that except for a few vested, non-conforming businesses, such as the Sunrise RV Park, Marina, fish camp, and restaurant, the remainder of the area along the River, as well as Intervenor's larger parcel across the street, is either residential or vacant. Petitioner fears that an RV park will result in increased noise, park lighting during nighttime hours, trash being left by the roadside, more traffic on the two-lane road, and a decrease in the value of his property. He also believes that the developer intends to place the southern entrance to the RV park almost directly across the street from his home. The greater weight of evidence supports a finding that the proposed new land use designation is not compatible with the surrounding land. Intervenor argues that an RV park and the surrounding residential properties are compatible (and suitable) because there are already non-conforming uses along the River that have not unduly negatively impacted the area. These uses, however, number only six along that stretch of the River, and they have existed for decades due to vested rights. It is fair to infer that the insertion of an RV park in the middle of a large tract of vacant CL land would logically lead to further requests for reclassifying CL land to expand the new RV park or to allow other non-residential uses. The stated purpose of Policy 17.2.8 is to reduce "incompatible land uses." At the same time, Rule 9J-5.003(23) discourages land uses which are in relative proximity to each other and can unduly negatively impact the other uses or conditions. The commercial RV park, with a yet-to-be determined number of spaces for temporary RVs, tenants, and associated commercial development, will be in close proximity to a predominately residential neighborhood. A reasonable inference from the evidence is that these commercial uses will have a direct or indirect negative impact on the nearby residential properties and should not coexist in close proximity to one another. This is contrary to Policy 17.2.8, which encourages a reduction in "incompatible land uses," and the amendment is therefore internally inconsistent with the policy.
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 small-scale development amendment CPA-09-16 adopted by the County by Ordinance No. 2009-A07 on May 26, 2009, is not in compliance. DONE AND ENTERED this 9th day of October, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2009.
The Issue The issue is whether a change on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Respondent, Manatee County (County), by Ordinance No. 09-31 on August 11, 2009, is 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 land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the County. The County is a local government that administers its Plan, which it amends from time to time. The County adopted the Ordinance which approved the change in the FLUM being challenged here. Petitioner is a Florida limited liability company with offices located at 4379 Ocean Boulevard, Sarasota, Florida. It owns property in the County. Petitioner appeared at the transmittal hearing for the amendment and submitted comments on the record in opposition to the amendment. FBE is a Florida limited liability company and has contracted to purchase the subject property from Patron. It operates a renewable energy development company in the County. It submitted comments to the County during the adoption process. Patron is a Florida limited liability company that owns the subject property. It submitted comments in support of the plan amendment during the adoption process. History of the Amendment On March 27, 2009, FBE (as agent for Patron) filed a Land Development Application (application) with the County Planning Department requesting approval of a FLUM change for the property from IL to P/SP(1). See Joint Exhibit 1. The existing IL land use authorizes office, light industry, research/ corporate parks, warehouse distribution, intensive commercial uses, neighborhood retail uses, hotel/motel, selected single- family, and residential uses. See Joint Exhibit 12. The Plan describes the general range of potential uses under the new category as recreational uses, sanitary landfills, permanent water and wastewater treatment/storage/disposal facilities, and other public facilities including, but not limited to, public airports, major maintenance facilities, solid waste transfer stations, and major utility transmission corridors. Id. Residential uses are not allowed. One intent of the P/SP(1) category is to recognize facilities associated with private utilities, such as the biomass plant proposed by FBE. Id. The application indicated that FBE intends to operate a sixty-megawatt biomass integrated power plant on the property and to continue to retain all uses allowed by the IL category. (In contrast to a power plant that uses coal or oil to generate electricity, a biomass plant uses renewable energy sources such vegetative materials to create electric energy.) The power generated at the facility will be sold to Progress Energy Florida, an investor-owned public utility. The application was accepted, numbered PA-09-08, and assigned Ordinance No. 09-31. Sometime in early April 2009, a staff report was prepared by the County's Principal Planner, Leon Kotecki, which included land use characteristics and development trends, plan amendment justification, and positive and negative aspects of the application and mitigating factors. See Joint Exhibits 5 and 6. The staff report also included what is described as a Plan Amendment Detailed Review and Land Planning Analysis that discussed services and natural features, urban development considerations, and consistency with the Plan, the State Comprehensive Plan (State Plan), Florida Administrative Code Rule Chapter 9J-5,1 and relevant portions of the Florida Statutes (2009).2 The report recommended that the application be approved. In making this favorable recommendation, the planner compiled and reviewed data on land compatibility, traffic impacts, and water and sanitary uses. He also took into account the topography of the site, how the Coastal High Hazard Area (CHHA) affected the site, its proximity to Port Manatee, and the surrounding uses. On April 4, 2009, the County published an advertisement of a public hearing on the application in the Bradenton Herald and the Sarasota Herald Tribune. Also, letters were sent to all property owners within 500 feet of the proposed amendment. Petitioner received personal notice of the amendment by letter dated May 20, 2009. On April 16, 2009, the Planning Commission conducted a hearing on the plan amendment and by a 4-1 vote recommended transmitting the amendment to the Board of County Commissioners. On April 21, 2009, the Board of County Commissioners conducted a public hearing and voted 6-0 to transmit the proposed amendment (as a part of a larger amendment package) to the Department for its review. On June 29, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) report for a series of map amendments, including the biomass project. See Joint Exhibit 4. In the ORC, the Department lodged an objection regarding the lack of sufficient planning guidelines as required by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i), specifically noting that the amendment did not restrict the property to a particular use. Id. at p. 3. That policy requires that an amendment for a proposed P/SP(1) category include a declaration of the specific use for which the P/SP(1) category is sought. The ORC also indicated that the amendment was not consistent with various goals, policies, and objectives in the State Plan for the reasons cited in the Objections portion of the ORC. Id. at pp. 3-4. The ORC recommended that the amendment include site-specific policies establishing meaningful and predictable guidelines and standards to guide development on the site. Id. at p. 3. After receipt of the ORC, the County revised the plan amendment by including a text amendment containing ten conditions (stipulations) that would apply if the property was developed as an electric generating facility using biomass fuels and/or solar energy. These conditions were included in the adopting ordinance as a new Section D.5.4 in the General Introduction Chapter and are a part of the Plan. See Joint Exhibit 10 at pp. 4-5. The new section provides that the property is limited to an "electricity generating facility using only biomass fuels and solar energy retaining the light industrial uses as provided for in the former IL Industrial Future Land Use Category applicable to the site." Id. at p. 4. The section further provides that the ten conditions are "minimal requirements" and that further conditions may be added during the development process, as necessary. Id. at p. 5. Thus, future stipulations at a later date can exceed the minimum requirements in the County's Land Development Code. On August 11, 2009, the County conducted a public hearing and adopted Ordinance No. 09-31, with the changes presented by its staff. On September 29, 2009, the Department published its Notice of Intent to find the amendment in compliance in the Bradenton Herald. On October 20, 2009, Petitioner filed its Petition challenging the map change and text amendment. The issues have been more narrowly defined in its Proposed Recommended Order and can be summarized as follows: the amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it impermissibly allows IL uses in the P/SP(1) land use category; the amendment is inconsistent with Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes, because it impermissibly expands the uses in the P/SP(1) category by including IL uses and does not contain the required intensity standards; the amendment is internally inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails to declare a specific use for the IL uses; the amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the amendment is inconsistent with the requirements of Rules 9J- 5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a), Florida Statutes, because it is not based on an analysis of the best available data regarding the suitability of the site for a biomass facility; and the amendment is inconsistent with the requirements of Rule 9J-5.005(2)(a) because it was not based on an analysis of the best available data for compatibility with residential uses in the surrounding area. The Property and Surrounding Uses Patron's property consists of around 44.4 acres and is located at 11551 and 11805 U.S. Highway 41 North in the northwest part of the County, just south of the Hillsborough County line. The eastern side of the property adjoins U.S. Highway 41, a major four-lane highway running north-south, while property owned by CSX Corporation (CSX), including an active railroad track, and then a large drainage canal border the site on its western side. (The railroad track is around one-quarter mile west of U.S. Highway 41.) West of the canal is agricultural land and a large parcel owned by Port Manatee designated as IL but used as conservation lands. To the south (in IL-designated land) lies an aircraft parts manufacturing facility owned by Trielectron Industries, which shares a boundary with Petitioner's property. To the north, the site adjoins property owned by Florida Power & Light Company, on which a substation is located. FBE plans to connect its power plant to the electric grid through this substation. The property is bisected by Armstrong Road, an unpaved County-maintained road running east-west, which provides access from U.S. Highway 41 to Patron's property and the land just west of the CSX property. Approximately one-third of the property lies north of Armstrong Road, while the remaining two-thirds lie south of the road. The southern 450 to 500 feet of the site consists of wetlands, forests, and vegetation, which serve as both a distance and visual buffer to uses to the south and southwest. (Because of these wetlands, a biomass plant would have to be constructed on the middle of the site.) Immediately west of the CSX property is an unpaved road that turns south to provide access to row crop fields and then to an 88-acre, rectangle-shaped parcel owned by Petitioner. Port Manatee, a deepwater seaport connected to the Gulf of Mexico through Tampa Bay, is less than a mile north of the site. The area between Port Manatee and Patron's property contains port-related uses which are mostly industrial uses such as construction yards and an aggregate plant. To the east of the port is a closed phosphate processing plant and associated phosphogypsum stacks, which are the remains after the phosphate is processed. The existing zoning on the property is Planned Development Encouragement Zone (PDEZ). The existing uses allowed under that category include a range of light and heavy industrial uses and are listed on the General Development Plan approved by the County on December 4, 2008. See County Exhibits 13 and 24. This information is relevant here because the zoning classification is consistent with the County's intent to focus heavy industrial uses within close proximity to Port Manatee. Development trends in the area of Port Manatee and the Patron property are predominately industrial. All of the surrounding development is either light or heavy industrial uses with the exception of six single-family homes located on Chapman Road, which terminates on the eastern side of U.S. Highway 41 just south of the site and extends eastward. The homes are located in a strip of land extending east on Chapman Road for a quarter mile or so and south for around a mile on the eastern side of U.S. Highway 41 that is classified as Retail/Office/ Residential (ROR). That category allows a range of uses including retail, wholesale or commercial uses, and public or semi-public uses. Thus, the residential units have the potential to eventually transition to nonresidential uses without a map change. There remain a few open parcels of land in the area that are available for additional development. Petitioner's property comprises around 88.7 acres. The southwest corner of Patron's property lies around one- quarter mile from the northeast corner of Petitioner's property. Counting the 450-foot green space on the southern end of Patron's property, the distance between the site of the plant and Petitioner's main parcel is around 1,900 feet. Petitioner also owns a narrow strip of land extending northward from the main parcel to Armstrong Road. This strip adjoins the western side of the CSX railroad track and provides access to the property from U.S Highway 41. On November 30, 2004, the County approved a residential project for Petitioner's property and rezoned the land from Suburban Agriculture and Suburban Agriculture/Coastal High Hazard Overlay District to Planned Development Residential/ Coastal High Hazard Overlay District. The project is known as the Estates at Bishop Harbor. The Preliminary Site Plan for the property depicted 66 lots for single-family detached residences. Before any development occurred, however, the original developer defaulted on the mortgage held by Petitioner, a foreclosure occurred, title to the property reverted to Petitioner, and no development ever occurred. The property is still vacant. At the time of the hearing, Petitioner had an application pending before the County to change the land use designation on 83.31 acres from Residential-1 (one dwelling unit per acre) to IL. The outcome of that application is unknown. The remaining 5.39 acres are already designated IL. Based on these circumstances, it is fair to infer that the long-delayed construction of the planned residential subdivision is questionable. Stipulation 6 of the approval of the change in land use on Petitioner's property was a requirement that a Notice to Buyers be included in the Declaration of Covenants and Restrictions and in the sales contracts or a separate addendum to the sales contracts and final site plans that includes language informing prospective homeowners that there are neighboring industrial uses and the potential for future industrial development including possible truck traffic and noises associated with industrial uses. Petitioner's Objections Petitioner first contends that the plan amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and inconsistent with the requirements of Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it permits light industrial uses in the P/SP(1) land use category. Petitioner argues that IL uses are not permitted in the P/SP(1) category. It also argues that by failing to include specific intensity standards in the amendment for the allowed IL uses, the amendment is inconsistent with the requirements of Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. The rule requires that the FLUE contain policies regulating land use categories included on the FLUM and establishing standards for intensities of use for each future land use category. The statute requires that each land use category be defined in terms of uses allowed and include standards to be followed in the control and distribution of building and structure intensities. Policy 2.2.1.22 establishes the P/SP(1) land use category; Policy 2.2.1.22.1 describes the intent of the category; Policy 2.2.1.22.2 describes the general range of potential uses in the category; and Policy 2.2.1.22.3 provides the range of potential intensity for the category. The general range of potential uses in the P/SP(1) category include: Recreational uses, sanitary landfills, permanent water and wastewater treatment/ storage/disposal facilities and other major public facilities including but not limited to, airports owned or operated by a public entity, major maintenance facilities, solid waste transfer stations, [and] major utility transmission corridors. Also, when the P/SP(1) designation is an easement on privately-held property, other uses consistent with the adjacent future land use category or categories, where consistent with the purpose of the easement and consistent with all other goals, objectives, and policies of this Comprehensive Plan, may also be considered. (See also Policy 2.1.1.5) Policy 2.1.1.5 provides further clarification on the allowed uses in this category by requiring that the County ensure the availability of sufficient land in the P/SP(1) category "to allow development of major public or semi-public uses (e.g., electrical generation facilities . . .) in appropriate areas when compatible with surrounding development." Joint Exhibit The Plan permits light industrial uses within the P/SP(1) category. Notwithstanding the broad range of uses described above, FLUE Policy 2.2.1.5 provides the County with more flexibility in determining the appropriate uses for any given plan category. The policy states that the future land use category listings of uses are "generalized," they are not "all inclusive," and they "may be interpreted to include other land uses which are similar to or consistent with those set forth in the general range of potential uses." See Joint Exhibit 12. IL uses are similar in character and intensity to the type of uses listed in the P-SP(1) category. Because the property was classified as IL before the amendment, all of the IL uses in that category have been evaluated and determined by the County to be appropriate in terms of location, impact, and intensity. For these reasons, it is fairly debatable that the plan amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J- 5.006(3), and Section 163.3177(6)(a), Florida Statutes. Likewise, the P-SP(1) category has a broad range of uses in terms of intensity, and even though the amendment does not contain specific intensity standards for the IL uses, the Plan contains other provisions required by Chapter 9J-5 to ensure compatibility between any future uses on the site and the surrounding properties in terms of intensity. Therefore, it is fairly debatable that the plan amendment is consistent with Rule 9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. Petitioner further argues that the plan amendment is inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires that "[a]n applicant shall be required to declare a specific use or uses for a specific piece of property for which the applicant is proposing to amend the existing future land use category to P/SP(1)." Petitioner argues that while FBE has identified one specific use for the P/SP(1) category -- a biomass plant -- it has not declared the specific use or uses which FBE is proposing under the IL category. Because the light industrial uses allowed under the IL category remain the same as before the amendment, and were previously evaluated when the Plan was originally adopted in 1989, it is fairly debatable that the amendment is consistent with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference to IL uses is adequate since it merely recognizes uses already approved and in effect. In its Proposed Recommended Order, Petitioner also contends that the plan amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3) because the County's five-year Capital Improvements Program contains no programmed improvements for U.S. Highway 41. The rule requires that there be a transportation analysis to support a FLUE amendment. However, this issue was not raised in the parties' Stipulation and need not be addressed. See Heartland Environmental Council, Inc. v. Dept. of Comm. Affrs., et al., Case No. 94-2098GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25, 1996)("[a party] is bound by the allegations in its Petition for Hearing . . . as further limited by the Prehearing Stipulation"). Even if it was a viable issue, the evidence shows that during the review and adoption process, the County relied upon a Florida Department of Transportation traffic analysis link sheet for February 2009 and information supplied by the applicant, which show that the current levels of service (LOS) on U.S. Highway 41 are A and B, that the projected number of peak hour trips will actually result in an overall net decrease in trips when compared to the existing Plan category, and that no capital improvements are needed. See Joint Exhibit 2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner that the LOS on U.S. Highway 41 may deteriorate if a biomass plant is not built and the IL uses are developed to their maximum potential is speculative at best and not supported by the evidence. Petitioner next contends that the amendment is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b) because it was not based on the best available data regarding the suitability of the site for the biomass facility. The statute requires that the FLUE be based on "surveys, studies and data regarding the area, including . . . the character of undeveloped land." Rule 9J-5.005(2)(a) requires that the amendment be based on relevant and appropriate data and analysis, while Rule 9J-5.006(2)(b)3. requires that the amendment be based on an analysis of the character of the land in order to determine its suitability for use, including the topography of the site. In support of this argument, Petitioner points out that when the County planner reviewed the amendment, he assumed that less property was within the CHHA than was depicted on the FLUM, that a majority of the property was at or above 10 feet in elevation, and that it would not flood in a Category I storm event. The planner reached this conclusion based on a review of large-scale United States Geological Survey (USGS) topographic maps and Light Detecting And Ranging (LIDAR) maps. However, an undated topographic survey (prepared for an earlier prospective purchaser of the Patron property and given by Patron to FBE when it signed a contract to purchase the property) and a technical memorandum prepared by FBE's consultant, Golder Associates, Inc., on March 31, 2009, reflected that much of the property lies within the CHHA at an elevation of five feet or less, or below the 5.8-foot storm surge elevation for a Category I storm event. This information was in the personal files of FBE's president and its out-of-town consultant and was not given to the County prior to the adoption of the amendment. Petitioner argues that this information is the best available data, and that if the County had been given these documents during its review process, it would have determined that the Patron property was not suitable for industrial uses. The County was not given the survey and memorandum prepared by the FBE consultant because that information was prepared only for use at the site plan review stage. This is not unusual since the County does not require signed and sealed surveys and engineering reports during the amendment process. While the data were in existence prior to the adoption of the map change in August 2009, they were not disclosed until a few days before final hearing (through discovery) and consequently were not "available for public inspection" prior to the amendment's adoption. After analyzing the new data (over objection of opposing counsel) for the first time at hearing, the County planner indicated that if he had known that the elevation was lower than that depicted on the USGS maps, he would have "given [the application] closer consideration." Even so, he emphasized that his recommendation would still be the same because any development on the site can be protected during the development process by berms, suspension of units aboveground, and other development standards. Assuming arguendo that the data were "available for public inspection" and should have been considered for that purpose, given the rigorous standards that apply during the site approval process, it is still fairly debatable that the amendment is supported by adequate data and analysis as to the suitability of the site and that the County reacted to it in an appropriate manner. Similarly, Petitioner points out that the technical memorandum prepared by FBE's consultant on March 31, 2009, revealed that the soils on the site are not suitable for a heavily loaded structure such as a biomass plant. Therefore, it argues that the amendment was not based on professionally acceptable data and analysis with respect to the suitability of the property to support a biomass plant, as required by Section 163.3177(6)(a), Florida Statutes, and Rules 9J- 5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a land use analysis for soils in order to determine the suitability of proposed uses on the site. In addressing this issue in the staff report, the planner relied upon the 1983 Soil Survey of Manatee County and determined that the property had three types of soil: Bradenton Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See Joint Exhibit 2 at p. 17. He further determined that these three soils are "poorly drained, level to nearly level, sandy to loamy, and underlain by sandy marine sediment and limestone." Id. However, because several heavy industries are already operating adjacent and within the immediate surrounding area with the same type of soil limitations, he concluded that the soil limitations could be "overcome by the proper design of drainage facilities and engineering design of buildings." Id. It is fairly debatable that the data and analysis are adequate to support the amendment in this respect, and that the County reacted to that data in an appropriate manner. Petitioner further argues the amendment violates Rule 9J-5.005(2)(a) because it is not based on a compatibility analysis of the industrial uses with the residential uses in the surrounding area. Like the preceding two objections, this one is framed in terms of a lack of the best available data to support the amendment. In its Proposed Recommended Order, Petitioner also cites as being relevant to this objection FLUE Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a change in land use to P/SP(1) only be made "in appropriate areas when compatible with surrounding development," and that an applicant "provide information and analysis on the compatibility of the proposed use or uses . . . with surrounding development." Petitioner points out that there are six single-family homes, characterized by one expert as an "artifact" from an earlier era, that extend out one-half mile along Chapman Road to the east/southeast of Patron's property, and that the County failed to consider the compatibility of industrial uses with those homes. It also argues that the County's analysis was based on the construction of a sixty-megawatt facility, as proposed by FBE, and did not consider a larger, more intense facility. In making its compatibility analysis for the surrounding area, the County considered all residences on Chapman Road extending out eastward a quarter to a half mile, which included the six houses in question. With the exception of the six houses, the data relied upon by the County reflected that the entire surrounding development is either light or heavy industrial uses, which is consistent with the County's focus to encourage industrial development in the Port Manatee area. The six houses are in a strip of land designated as ROR, which allows a mix of retail, office, and residential uses. Some of the existing uses that are near the homes, and within the ROR category, are considered "intensive." Given this type of development, it is highly unlikely that more homes will be constructed in the ROR area. If and when a biomass plant is constructed, existing development standards will be used to ensure compatibility with the ROR uses. Petitioner did not refute this evidence. When considering the area and uses as a whole, it is fairly debatable that there are adequate data and analysis to support a determination that the new land use will be compatible with the residential uses in the surrounding area. All other issues raised by Petitioner and not addressed herein have been considered and found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order denying USFG's Petition and determining that the plan amendment adopted by Ordinance No. 09-31 is in compliance. DONE AND ENTERED this 28th day of July, 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 28th day of July, 2010.
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.
Findings Of Fact In 1984, the Petitioners, a married couple, purchased a parcel of real property zoned agricultural located in Clay County. The Petitioners' parcel, which is the subject of the application for vested rights, is a fraction over twenty-two acres and is bounded on the east side by the St. John's River, on the west side by County Road 209, and by other private property on the north and south which is not subject to the application under consideration. An abandoned rail road right of way runs northwest to southeast across the parcel approximately half way between the paved road on the western boundary of the property and the river which forms the eastern boundary. A sand road has been constructed between the paved road and the abandoned railroad right of way. The land uses for agricultural property included single family residential development with one single family residence per acre until the enactment of the comprehensive plan discussed in detail below. The Petitioners purchased the parcel for the purpose of constructing a single family, and subdividing and selling the remaining portions of the parcel as home sites. The Petitioners obtained two mobile home permits (move-on permits) in 1986 and a building permit for the construction of a barn in 1989 from Respondent. In addition, the Petitioners obtained a permit for the construction of a dock from the Corps of Engineers. The Petitioners had a road constructed to access the interior of the property prior to 1990. The Petitioners later purchased equipment including a back hoe, grader, and dump trucks in 1990 for improving the road and improving drainage. The Petitioner, Robert I. Moore, completed improvements to the sand road with his own labor incurring costs for fill, fuel, and equipment repairs. The Petitioners ordered a survey which was completed in 1991. They then conveyed property between themselves via quit claim deeds to subdivide the property into nine lots, A through I. Three lots were created along the river, Lot I (3.59 acres), Lost H (3.16 acres), and Lot G (2.97 acres). Three lots were created along the paved road: Lot C running from the paved road to the rail road right of way containing 2.87 acres; Lot B running east from the paved road approximately 140 feet containing 1.11 acres; and Lot A running east from the paved road approximately 150 feet containing 1.09 acres. Lot F is located east of Lot A, and runs east approximately 800 feet containing 4.60 acres. Lot D is located east of Lot B and runs east approximately 300 feet containing 1.42 acres. Lot E is located east of Lot D, runs east approximately 200 feet to the rail road right of way, and contains approximately 1.42 acres. The surveyed subdivision of the parcel was recorded on December 31, 1991, together with private road maintenance agreement and quit claim deeds. The mobile homes were located on lots B and D, and barn had been built on Lot F. The amended application combined Lots A and F, and Lots D and E. The Petitioners spent money and expended energy to make improvements to the property in pursuit of their objective of developing the parcel. Their efforts included developing a graded, sand road through the property, improving the drainage, having a survey of the property conducted, and engaging an attorney to advise them. In June 1991, the Respondent adopted a comprehensive land use plan which was submitted to the Department of Community Affairs (DCA) of the State of Florida. The DCA is charged by statute to determine if county comprehensive planning ordinances conform to state requirements. Those counties whose plans did not conform could amend them to conform; however, if the county failed to bring its plan into compliance, sanctions could be invoked by the state against the county. The Respondent's initial plan as adopted retained agricultural zoning for the parcel owned by Petitioners, and the Petitioners were aware of this having obtained several planning maps reflecting the proposed land uses for various areas of the county including their parcel. The Petitioners' subdivision complied with all existing requirements of the county to include those contained in the county's original comprehensive land use plan. The county's comprehensive land use plan provided that a lot of record included "a non-platted piece, parcel, lot, or tract of land described by metes and bounds or other similar means in a legally recorded deed as of July 1, 1991." The Petitioners' subdivision was not recorded until December 31, 1991. The county's comprehensive land use plan was not accepted by the DCA which received written objections, recommendations and comments (ORC Report) of the DCA. These objections included the density allowed in rural residential land use classification. On December 5, 1991, the Respondent and its Planning Commission held a joint workshop, advertised and open to the public, at which a modification to the density provisions of the comprehensive land use plan was considered for the purpose of addressing the objections by the DCA. The DCA's recommendation to reduce density in rural areas from one single family residence per acre to one to every five acres based upon a point system was specifically considered. On January 23, 1992, following a public hearing as required by statute, the Respondent adopted the amended plan containing the reduced density for rural areas based upon the point system. This changed the density of the Petitioners' parcel to one single family residence per five acres. This amended plan retained the definition of "lot of record" first discussed in March 1991; later considered at the public hearing on the plan in May 1991; and adopted in the original comprehensive plan. The assessed value of the parcel in 1994 was $274,200; in 1993 it was $158,462; and in 1992 it was $96,921. The expenditures for fill, labor, and repairs to construct and improve the road cost $23,425. The purchase price of the heavy equipment used by Mr. Moore to improve the road was $26,200 including $4,595 for repair of the loader/backhoe which is considered part of "purchase price." Although some of the heavy equipment was purchased used, and would have a lower rate of depreciation, the equipment lost value being used. This depreciation was part of the costs of doing the work. A declining depreciation rate of 15 percent in 1989, 12 percent in 1990, and 10 percent in 1991 was used to arrive at the depreciation costs, which were approximately $8,500. The capital costs of building the dock were excluded; however, the taxes paid to Clay County for the past two years, $5,023, were included. The total developmental costs would be approximately $37,000 as of the end of 1991. Expenditures after adoption of the plan are not considered.
Recommendation Based upon the consideration of the findings of facts and the conclusions of law, it is, RECOMMENDED: That the amended application for equitable vested rights be approved in part, and denied in part as follows: That Petitioner be granted equitable relief to subdivide their 22-acre parcel into 4 lots each containing approximately 5 acres using the existing road which they constructed as a boundary between the lots, but that they not be permitted to exceed the plan's density requirements. DONE and ENTERED this 10th day of January, 1995, in Tallahassee, Florida. STEPHEN F. DEAN 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 10th day of January, 1995. APPENDIX The parties filed proposed findings of fact which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings Recommended Order Paragraphs 1-4 Paragraphs 1,2,3,4,7 Paragraph 5,6 Paragraphs 6,5 Paragraph 7 Paragraph 8 Paragraph 8 It is the hearing officer's under-standing that the ordinances were adopted prior to submission to DCA, which could state objections to the county's ordinance. Mr. Moore was aware of the plan and its impact upon his property. Paragraph 9 Paragraphs 11,12,14 Paragraph 10 Paragraphs 15,16 Paragraph 11 Paragraphs 17,18 Paragraph 12 Paragraph 13 Paragraph 13 Paragraphs 11,12 Respondent's Findings Recommended Order Paragraphs 1-3 Paragraph 1-4 Paragraphs 4-8 Subsumed in Paragraphs 5-10 Paragraphs 9-12 Subsumed in Paragraphs 11-14 Paragraph 13 Irrelevant. Paragraph 14 Paragraphs 14,18 Paragraph 15 Discussed in Conclusions Paragraphs 16-19 Paragraphs 15-18 Paragraph 20 Paragraph 8 Paragraph 21 Subsumed in Paragraph 7 Paragraph 22 Paragraph 9
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
