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 The issue to be determined in this case is whether the amendments to the Palm Beach County Comprehensive Plan (“the Comp Plan”) adopted by the Board of County Commissioners of Palm Beach County by Ordinance No. 14-030 (“Proposed Amendments”) are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Petitioner Alerts of PBC, Inc. (“Alerts”), is a Florida not-for-profit corporation doing business in Palm Beach County. Alerts made timely objections and comments to the County on the Proposed Amendments. Petitioner Patricia Curry is a resident and landowner in Palm Beach County. Ms. Curry made timely objections and comments to the County on the Proposed Amendments. Petitioner Robert Schutzer is a resident and landowner in Palm Beach County. Mr. Schutzer made timely objections and comments to the County on the Proposed Amendments. Petitioner Karen Schutzer is a resident and landowner in Palm Beach County. Ms. Schutzer made timely objections and comments to the County on the Proposed Amendments. Respondent Palm Beach County is a political subdivision of the State of Florida and has adopted the Comp Plan, which it amends from time to time pursuant to section 163.3184. Intervenor Minto is a Florida limited liability company doing business in Palm Beach County. Minto is the owner of all of the 3,788.6 acres (“the Property”) which are the subject of the Proposed Amendments, with the exception of two parcels totaling 40.04 acres, which are owned by the Seminole Improvement District. Minto appointed the board of supervisors of the Seminole Improvement District pursuant to state law. Background FLUE Objective 1.1 establishes a unique Managed Growth Tier System “to protect viable existing neighborhoods and communities and direct the location and timing of future development.” The Property is located in the County’s Rural Tier and is bounded by Exurban Tier to the north and east. North of the Property is a large subdivision known as the Acreage, which was described by Respondents as “antiquated” because it was developed in a manner that was common decades ago before modern community planning concepts and growth management laws. The Acreage is dominated by 1.25-acre residential lots, laid out in a grid pattern with few other uses. Although the residents of the Acreage have a strong sense of community, it is apparently a matter of aesthetics, familiarity, and social intercourse, because the Acreage is not a community in the modern planning sense of providing a mix of uses where residents can live, shop, work, and play. It is a development pattern that is now discouraged by state law and the Comp Plan, because it is inefficient with respect to the provision and use of public services. The Property and the Acreage are within a 57,000-acre area known as the Central Western Communities (“CWC"). The CWC has been the subject of extensive planning efforts by the County for many years to address land use imbalances in the area. There are many residential lots, but few non-residential uses to serve the residents. In 2008, the previous owner of the Property, Callery- Judge Groves (“Callery”), obtained an Agricultural Enclave (AGE) future land use designation for essentially the same area as the Property. The Comp Plan was amended to establish an AGE future land use designation, AGE policies, a conceptual plan of development, and implementing principles (“the 2008 Amendments”). Under the 2008 Amendments, the site was limited to 2,996 residential units and 235,000 square feet of retail and office uses. No development has been undertaken pursuant to the 2008 Amendments. In 2013, the site was sold to Minto, which submitted a Comp Plan amendment application in November 2013, and a revised application in July 2014. On October 29, 2014, the County adopted the Proposed Amendments. The Proposed Amendments change the future land use designation of 53.17 acres (“the outparcels”) from RR-10 to AGE, and increase residential density to 4,546 units and increase intensity to two million square feet of non-residential uses, 200,000 square feet of civic uses, a 150-room hotel and a 3,000- student college, and revise the Conceptual Plan and Implementing Principles. The Proposed Amendments would also revise text in the Introduction and Administration, Future Land Use, and Transportation Elements. The Map Series would be amended to add 53.17 acres to the Limited Urban Service Area on Map LU 1.1 and Map LU 2.1, and to identify new Rural Parkways on Map TE 14.1. Petitioners’ Challenge Petitioners contend the Proposed Amendments are not “in compliance” because they fail to establish meaningful and predictable standards; do not comply with the agricultural enclave provisions of section 163.3164(4); are not based upon relevant and appropriate data and analysis; promote urban sprawl; are incompatible with adjacent communities and land uses; and create inconsistencies within the Comp Plan. Many of the issues raised and the arguments made by Petitioners fail to acknowledge or distinguish the 2008 Amendments that address future development of the Property. In several respects, as discussed below, the 2008 Amendments already authorize future development of the Property in a manner which Petitioners object to. In several respects, the types of impacts that Petitioners are concerned about are actually diminished by the Proposed Amendments from what is currently allowed under the 2008 Amendments. Meaningful and Predictable Standards Petitioners contend that proposed FLUE Policies 2.2.5-d, 2.2.5-e, and 2.2.5-f, and Maps LU 1.1 and 2.1 fail to establish meaningful and predictable standards for the use and development of land and fail to provide meaningful guidelines for the content of more detailed land development and use regulations, in violation of section 163.3177(1). The Proposed Amendments add more detail to the standards that were adopted in the 2008 Amendments. The Proposed Amendments establish substantially more direction for the future development of the Property than simply a land use designation and listing of allowed uses, which is typical in comprehensive plans. Petitioners contend the Proposed Amendments lack adequate standards because they refer to the use of “appropriate new urbanism concepts,” which Petitioners say is vague. New urbanism refers to land use planning concepts such as clustering, mixed-use development, rural villages, and city centers. See § 163.3162(4), Fla. Stat. (2014). In land use planning parlance, new urbanism creates more “livable” and “sustainable” communities. The term “appropriate new urbanism concepts” used in the Proposed Amendments is the same term used in section 163.3162(4), dealing with the development of agricultural enclaves. There are many concepts that are part of new urbanism, which can be used in combination. Which concepts are “appropriate” depends on the unique opportunities and constraints presented by the area to be developed. Use of the term “appropriate new urbanism concepts” in the Proposed Amendments adds detail to the future development standards applicable to the Property. It does not create vagueness. Petitioners contend the proposed amendments of Maps LU 1.1 and 2.1 do not provide meaningful and predictable standards and guidelines. However, the maps are only being amended to show that 53.17 acres of outparcels within the Property are being added to the existing Limited Urban Service Area. The map amendments do not diminish the meaningfulness or predictability of any standards in the Comp Plan. The preponderance of the evidence shows the Proposed Amendments establish meaningful and predictable standards. Agricultural Enclave Petitioners contend the Proposed Amendments fail to meet the requirements for an agricultural enclave in section 163.3164. As explained in the Conclusions of Law, consistency with section 163.3164 is not a component of an “in compliance” determination. Furthermore, the Property is already designated Agricultural Enclave in the Comp Plan. Data and Analysis Petitioners contend the amendment of the Limited Urban Service Area is not supported by relevant and appropriate data and analysis as required by section 163.3177(1)(f). The inclusion of the outparcels is logical and reasonable. It is consistent with the Comp Plan policies applicable to Limited Urban Service Areas. It is supported by data and analysis. Petitioners contend the increases in density and intensity allowed by the Proposed Amendments are not supported by data and analysis showing a need for the increases. However, the increases are supported by relevant and appropriate data and analysis, including population projections and extensive analysis of the need for non-residential uses in the CWC. Population projections establish the minimum amount of land to be designated for particular uses; not the maximum amount of land. See § 163.3177(1)(f)3., Fla. Stat (2014). Petitioners make several claims related to the availability of public utilities and other services to the Property. The data and analysis show sufficient capacity for roads, transportation, schools, water supply, wastewater treatment, fire, emergency and police either already exists or is contemplated in the Comp Plan to accommodate the development authorized by the Proposed Amendments. The preponderance of the evidence shows the Proposed Amendments are supported by relevant data and analysis. Urban Sprawl Petitioners contend the Proposed Amendments do not discourage the proliferation of urban sprawl. Urban sprawl is defined in section 163.3164(51) as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.” Petitioners contend the Property does not qualify for the presumption against urban sprawl under the criteria in section 163.3162(4), but Minto did not rely on that statutory presumption. Petitioners contend the Proposed Amendments create five of the 13 primary indicators of urban sprawl set forth in section 163.3177(6)(a)9.: Promotes, allows, or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses. Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development. Fails to maximize use of existing public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. The evidence presented on this issue by Petitioners was inconsistent with generally accepted land use planning concepts and principles. The Proposed Amendments do not promote urban sprawl. They go far to rectify existing sprawl conditions in the CWC. Findings relevant to the five indicators have already been made above. Compatibility with adjacent uses is discussed below. There are ample data and analysis which show the Proposed Amendments discourage urban sprawl. Respondents’ characterization of the Proposed Amendments as the opposite of urban sprawl is not unreasonable. The preponderance of the evidence shows the Proposed Amendments discourage the proliferation of urban sprawl. Compatibility Petitioners contend the Proposed Amendments are “incompatible with the lifestyle of the existing and surrounding communities and adjacent agricultural and other land uses.” Protection of Petitioners’ lifestyle cannot mean that surrounding areas must remain undeveloped or must be developed in a similar suburban sprawl pattern. Land use imbalances in the CWC are rectified by the Proposed Amendments while providing large buffers and a transition of land uses on the Property to protect adjacent land uses. The Acreage is more accurately characterized as suburban rather than rural. Moreover, the Proposed Amendments include a conceptual plan and development guidelines designed to create a clear separation between urban uses on the Property and less dense and intense external uses. Residential densities near the perimeter of the Property would correspond to the density in the Acreage. The proposed distribution of land uses and large open space buffers would not establish merely an adequate transition. They would provide substantial protection to adjacent neighborhoods. A person at the periphery of the Property would likely see only open space, parks, and low-density residential uses. The distribution of land uses and natural buffers in the Proposed Amendments provide more protection for external land uses than the 2008 Amendments. The more persuasive evidence presented indicates that Petitioners and other persons living near the Property would be beneficiaries of the Proposed Amendments because they could use and be served by the office, commercial, government, and recreational uses that will be available nearby. The preponderance of the evidence shows the Proposed Amendments are compatible with adjacent land uses. Internal Consistency The Comp Plan’s Introduction and Administration Element and FLUE contain statements of intent. They are not objectives or policies. Petitioners contend the Proposed Amendments are inconsistent with some of the statements. Petitioners contend the Proposed Amendments are inconsistent with the Introduction and Administration Element statements discouraging growth to the west where services are not adequate, do not provide for orderly growth or the provision of facilities and services to maintain the existing quality of life in an economical manner, and do not recognize countywide growth management strategies or maintain the diversity of lifestyles. Findings that refute this contention have been made above. Petitioners contend the Proposed Amendments are inconsistent with several general statements in FLUE Sections I A, I B, and I C. regarding respect for the character of the area, protection of quality of life and integrity of neighborhoods, prevention of “piecemeal” development, and efficient provision of public services. Findings that refute this contention have been made above. Petitioners contend FLUE Policy 2.2.5-d allows land uses which are inconsistent with the policies applicable to the Rural Tier in which the Property is located. In the proposed policy, the County exempts the Project from any conflicting Rural Tier policies that would otherwise apply. Under the County’s Managed Growth Tier System, the tiers are the “first level” land use consideration in the FLUE. Therefore, it would have been helpful to amend the Rural Tier section of the FLUE to indicate the exceptions to Rural Tier policies for agricultural enclaves, in general, or for the Property, in particular. Instead, the Proposed Amendments place the new wording about exceptions in the section of the FLUE dealing with agricultural land uses. However, as stated in the Conclusions of Law, where the exception is located in the comprehensive plan is not a consistency issue. The County has shown there are unique considerations involved with the CWC that justify the exceptions. It also demonstrated that the Proposed Amendments would accomplish numerous objectives and policies of the Comp Plan that could not be accomplished without creating exceptions to some Rural Tier policies. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-3 because they encourage the proliferation of urban sprawl. That contention has been rejected above. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-6 because they do not protect agricultural land and equestrian uses. The evidence shows that agricultural and equestrian uses are enhanced by the Proposed Amendments over the existing provisions of the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-b, which addresses criteria re- designating a tier. This policy is not applicable because the Proposed Amendments do not re-designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-c, which requires the review of the tier system as part of each Evaluation and Appraisal review. Evaluation and Appraisal Reviews are no longer required by state law. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-d, which states a tier shall not be re-designated if it would cause urban sprawl. This policy is not applicable because the Proposed Amendments do not re- designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-a, which requires the County to protect and maintain the rural residential, equestrian, and agricultural areas within the Rural Tier. The Proposed Amendments and Conceptual Plan increase the level of protection for these uses over what is currently in the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-d, which generally prohibits subdividing parcels of land within the Rural Tier unless certain conditions are met. The Proposed Amendments do not subdivide any parcels. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-k, which addresses the designation of “sending areas” for Transfer of Development Rights (“TDR”). This policy only applies to parcels with a RR20 future land use designation and there are no such parcels existing or that would be created by the Proposed Amendments. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-l, which requires the County to provide rural zoning regulations for areas designated Rural Residential. The Property does not have any Rural Residential designations. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 2.4-b, which provides that the TDR program is the required method for increasing density within the County. The County applies this policy only to density increases in urban areas, because they are the only areas authorized to receive TDRs. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.1 and some related policies, which promote balanced growth. The preponderance of the evidence shows the Proposed Amendments will further this objective and its policies because they correct the current imbalance of land uses in the CWC and provide for a balanced mix of residential, agricultural, commercial, light industrial, office, recreation, and civic uses. Petitioners presented no evidence to support their claim that Proposed Amendments would exceed the natural or manmade constraints of the area. Petitioners presented no credible evidence that transportation infrastructure and other public services could not be efficiently provided to the Property. The data and analysis and other evidence presented show otherwise. Petitioners contend there is no justification for the increased density and intensity authorized by the Proposed Amendments. There was ample justification presented to show the increases were needed to create a sustainable community where people can live, work, shop, and play. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.2 and some related policies, which require development to be consistent with land use designations in the Comp Plan. Petitioners’ evidence failed to show any inconsistencies. The Proposed Amendments are compatible with and benefit adjacent land uses, as found above. Petitioners contend the Proposed Amendments fail to include “new urbanism” concepts as required by section 163.3164(4) and Policy 2.2.5-i. The evidence presented by Respondents proved otherwise. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 3 and some related policies, which address the provision of utilities and other public services. Petitioners presented no credible evidence to support this claim. The data and analysis and other evidence presented show that public services are available or planned and can be efficiently provided to the Property. Petitioners argued the Proposed Amendments were inconsistent with several other FLUE policies generally related to compatibility with adjacent land uses and the provision of public services, all of which Petitioners failed to prove as explained above. The preponderance of the evidence shows the Proposed Amendments would not create internal inconsistency in the Comp Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity issue a final order determining the Proposed Amendments adopted by Palm Beach County Ordinance No. 2014-030 are in compliance. DONE AND ENTERED this 17th day of April, 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 17th day of April, 2015. COPIES FURNISHED: Ralf G. Brookes, Esquire 1217 East Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Tara W. Duhy, Esquire Lewis Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 (eServed) Amy Taylor Petrick, Esquire Palm Beach County Attorney's Office 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 (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)
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
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 the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
Findings Of Fact The Parties Coniglio through a profit sharing plan owns property in Sumter County which is affected by the plan adoption at issue here. He submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings. He is a person affected by the plan adoption. Similarly Pownall, Cherry, Jones, the Turners and the Dixons as property owners and individuals who submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings are affected persons. Moreover, Pownall, Cherry, Jones and Turner reside in Sumter County. The Dixons own and operate mining sites within Sumter County. Their residence and business interests in Sumter County create additional bases for determining that those individuals are affected persons. The department is the state land planning agency which has the responsibility of reviewing comprehensive plans in accordance with Chapter 163, Part II, Florida Statutes. That function was performed on this occasion associated with the comprehensive plan submitted by the county. The county is a local government required to adopt a comprehensive plan in accordance with Chapter 163, Part II, Florida Statutes. This county is a non-coastal county located in central Florida which is bordered by Citrus, Hernando, and Pasco counties to its west, Polk county to the south, Marion county to the north and Lake county to the east. It has within its boundaries five incorporated municipalities, Bushnell, Center Hill, Coleman, Webster and Wildwood. The unincorporated area of the county include approximately 350,000 acres. The 1991 unincorporated population of the county was 25,030 and was projected to increase to 30,773 within the ten-year planning horizon contemplated by the plan, in the year 2001. Plan Preparation, Adoption and Approval On March 27, 1991, the county submitted its proposed plan to the department for review as contemplated by Section 163.3184(3)(a), Florida Statutes. By such submission the county did not commit itself to the terms found within the proposed plan. Chapter 163, Part II, contemplates that the text within the proposed plan may change through the review, adoption and approval process that follows that submission. As anticipated by Section 163.3184(4), Florida Statutes, the department forwarded copies of the proposed plan to other agencies for review. The department in accordance with Section 163.3184(6), Florida Statutes, took into account the comments received from the other governmental agencies and prepared and transmitted its report of written objections, recommendations and comments (the ORC). The transmittal date for the ORC was July 2, 1991. The purpose of the ORC was to acquaint the county in detail concerning the department's objections, recommendations and comments. It was left over to the county to decide whether the suggested modifications recommended by the department would be adopted in an effort at establishing a plan which would be found "in compliance". The county considered the ORC report, to include the recommendations and made revisions to the text in the proposed plan when it adopted its plan on February 3, 1992. The adopted plan was transmitted to the department on February 28, 1992, for final review. In preparing and adopting the plan the county gave appropriate notice and provided the opportunity for public participation envisioned by law. On March 31, 1992, the department's secretary determined that the adopted plan met the requirements set forth in Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Thus, the plan was found "in compliance". The determination finding the plan "in compliance" was memorialized through a memorandum dated March 24, 1992. On April 9, 1992, the department gave notice of its intent to find the plan "in compliance". The Coniglio Petition The Coniglio profit sharing plan owns 19.44 acres in Sumter County which Coniglio claims should be classified on the future land use map to the plan as industrial property not commercial property as the plan now describes. In particular, Coniglio asserts that the 19.44 acres that were designated as commercial was not by a decision based upon a survey, studies or data concerning that parcel and that the designation as commercial is inconsistent with the character of other parcels found within the immediate area. Coniglio argues that the analysis that was performed in classifying the property for designation in the future land use map has resulted in a land use which does not allow the best use or highest economic use of the subject property. This 19.44 acres is depicted on map VII-19 and is located to the north and east of the City of Wildwood. There is commercial acreage in the plan immediately adjacent to the property in question, all of which is part of a triangular shaped piece of land. There are present commercial uses adjacent to the property. Generally, the triangular shaped property, to include the 19.44 acres, is surrounded by other properties whose classification is municipal, industrial and rural residential. The property is further detailed in a sketch which is Respondent's Exhibit No. 1 and a Joint Exhibit No. 2. The property is south of County Road 462, west of the Seaboard Coastline Railroad line and east of U.S. 301. The southern boundary of the property is adjacent to an overpass which is 40 to 45 feet high. Coniglio's property has its longest axis fronting the railroad, contact with County Road 462 but no immediate contact with U.S. 301. The railroad line which is adjacent to the parcel is a principal track for the Seaboard Coastline Railroad carrying north/south traffic between Jacksonville and Tampa and Jacksonville and Orlando. The track splits in the City of Wildwood with some traffic going to Tampa and some traffic going to Orlando. A manufacturing plant is located east of the railroad in the vicinity where the subject property is found. This plant is Florida Corrugated which makes corrugated boxes. West of U.S. 301 in the vicinity of the property in question is found a company known as AST that manufactures steel pipes. In the vicinity of the property in question at the junction of County Road 462 and U.S. 301 a business is located known as McCormick Electric. In the immediate vicinity of the property is also found a convenience store and what previously was a motel that has been turned into rental units. Northeast of the intersection of County Road 462 and the railroad is property owned by Florida Power Corporation which is classified as industrial. The corrugated box plant is also on property classified as industrial, again referring to classifications in the future land use map. The AST property where stainless steel pipes are manufactured is on a parcel which is classified as industrial on the future land use map. As stated, the parcel in question is part of a larger triangular shaped parcel, that had been the topic for establishing an industrial park. In the proposed plan the subject parcel, a part of the larger parcel, had been classified as industrial. That designation of the parcel in the proposed plan was through the future land use map. Arrangements were made to provide water service to the industrial park. At present that service is available at the property in question. Arrangements, though not consummated, have also been made to extend sewer service from the City of Wildwood to the subject parcel. In anticipation of the use of the subject property under an industrial classification, Coniglio expended large sums of money. That included $85,000 for a railroad spur and in addition; $12,000 for track extensions, $8,500 for a water line and contribution of right-of-way for water service, sewer service and a road. All this effort was made by Coniglio's in the anticipation of the opening of the industrial park. Sumter County had been involved in the industrial park project through the process of an application to the Florida Department of Commerce seeking appropriation of $96,000 to construct a road associated with the industrial park. The county administered construction of the road and it is that road which Coniglio had donated right-of-way for. The railroad spur, water and sewer services would serve parcels other than the subject parcel owned by Coniglio. The county in preparing its proposed plan had worked with the Sumter County Development Council and other persons in the community in establishing the location for commercial and industrial classifications. One reason for designating the parcel in question as industrial was based upon its proximity to the railroad and as part of the overall industrial park which was being projected in the planning efforts by the county, the development council and others. Chemical Development Corporation appeared before the Sumter County Board of Adjustments to seek approval to operate its business of storage and treatment of hazardous waste on the subject property. The need to appear before the Sumter County Board of Adjustments, which operates independent of Sumter County and its governing board, the Sumter County Commissioners, was to gain a special exception to operate that type business in the county. A special exception needed to be granted by the Sumter County Board of Adjustments because the business to be engaged in involved hazardous waste. The decision by the Sumter County Board of Adjustments was upon a vote of 8 to 2 to grant the special exception following visitation to a plant similar to those activities the applicant for special exception hoped to be engaged in. That approval was granted in May, 1991 by the Sumter County Board of Adjustments. Following that approval the plan was adopted on February 3, 1992, and it changed the classification from industrial in the proposed plan to commercial in the adopted plan. Chemical Development Corporation the prospective tenant for the parcel in question was not granted an occupational license by the county and could not proceed with its operations. One of the enterprises that located in the proposed industrial park was Dairyman's Supply. It had completed construction and was ready for business before the plan was adopted. It began its operations in July, 1991. The decision to change the designation in the parcel in question from industrial to commercial was upon the recommendation of Glen Nelson, Director of Public Services for Sumter County. Among other reasons for the change, according to Nelson, was to thwart the purposes of Chemical Development Corporation in recognition that the change in classification from industrial to commercial would prohibit activities by that company. Notwithstanding the decision by the Sumter County Board of Adjustments to grant the special exception, that prohibition existed because industrial zoning was necessary for the would be tenant to proceed with its business at the site in question. By way of history, following the decision by the Sumter County Board of Adjustments to grant the special exception there was some opposition to the activities envisioned by the Chemical Development Corporation. That is to say, the establishment of a hazardous waste treatment facility. This community opposition predated the recommendation by Mr. Nelson, the decision by the Sumter County Commissioners to reject the application for an occupational license issued from the county, and the determination to present the subject parcel on the future land use map in the adopted plan as a commercial classification. The principal planner whom the county relied upon in preparing its plan was Jack Sullivan. He did not participate in the decision to change the subject parcel from industrial to commercial as reflected on the future land use map in the adopted plan. As explained by Mr. Nelson, other reasons for changing the plan related to the overall attempt by the county to meet perceived needs for balancing the amount of commercial and industrial acres within its adopted plan. To that end the March, 1991, proposed plan had contained approximately 200 acres on State Road 44 east of Wildwood designated as commercial that had been put there at the request of the Sumter County Development Council based upon the Council's discussions with a company that was considering the establishment of a distribution center. Between the time the proposed plan had been transmitted and the plan adoption took place the potential project located in Pasco County or some county south of Sumter County. Therefore, as stated by Mr. Nelson, the commercial designation was no longer needed. The commercial designation at that site changed to rural residential in the plan as adopted. To compensate for the loss of commercial on that 200 acres Mr. Nelson requested that an approximately 40 acre tract of land adjacent to Wildwood on the east side of State Road 44 be placed in the adopted plan as commercial together with 30 to 35 acres including the subject parcel. In making his recommendation to place the subject parcel as commercial Mr. Nelson was aware of those industrial activities in the general area surrounding the parcel in question that have been described. Mr. Nelson made his recommendation for change in the classification one or two months before the February 3, 1992 plan adoption. At the plan adoption hearing on February 3, 1992, Mr. Nelson indicated that the reason for changing the classification for the subject parcel was that the existing uses there were commercial and that the future land use map should reflect that reality. At the hearing no mention was made, by the provision of details, that the reason for changing was to compensate for the loss of the aforementioned 200 acres of commercial acres between the time of the proposed plan and the adoption of the plan on February 3, 1992. As Mr. Nelson explains, the action by the Sumter County Board of Adjustments in granting a special use exception to Chemical Development Corporation did not preclude the necessity to acquire the proper zoning on the parcel before proceeding with the business. That zoning had to be industrial and not commercial. In the more ordinary course the industrial zoning would have been sought first before the Sumter County Commissioners and the Sumter County Board of Adjustments would then have considered the special use. In this instance the Board of Adjustments acted first and the county made its determination second. Bill Keedy who sells industrial real estate expressed the opinion that the 19.44 acres would not be saleable as commercial real estate at least in the foreseeable future. Jim Morton who sells commercial, residential and agricultural properties expressed the opinion that the parcel in question has limited commercial value. Willard Peeples who owns a number of commercial rental properties did not believe that the subject property had commercial value due to limited access to road frontage. None of these individuals are certified in real estate appraisal. Mr. Keedy pointed out that the majority of commercial activity in the Wildwood area is in the middle of the town. Mr. Peeples observed that the commercial activity in Wildwood was located south of the city hall and on U.S. 301 and east and west on State Road 44. Mr. Morton expressed the belief that the highest and best use of the subject property was industrial. Mr. Keedy expressed the belief that an industrial use was promoted by the fact that the property on its east side was bordered by the railroad track. Mr. Nelson in making his recommendation to classify the property in question as commercial made that choice outside any experience in selling, owning or dealing in commercial property. There had been no commercial development north of the City Hall in Wildwood in the preceding ten years prior to hearing. Tony Arrant is an expert in land use planning employed by the department. He had significant involvement in the plan review performed by the department. He pointed out that the department's concerns about the plan and its land use classifications were based upon distribution of land uses throughout the entire county. The ORC did not offer objections to classification of any particular parcel. In the ORC there had been objection as to the extent and distribution of land uses based upon the belief that inadequate data and analysis had been provided to support the extent and distribution of land use. Moreover, the ORC found the plan in its proposed form deferred the establishment of densities and intensities for some land use categories within the plan. The ORC expressed concern about data and analysis supporting the future land use map. Therefore, objection was directed to the future land use map. However, the impression of the proposed plan was not based upon a policy to avoid commenting on specific parcels when occasion arose for such criticism. Mr. Arrant did not perceive that a change in classification of land use between the time that the proposed plan was reviewed by the department and the adoption of a plan was an irregular outcome. In fact, that possibility is a normal expectation. Mr. Arrant recalls the explanation by Mr. Nelson on February 3, 1992, when the plan was adopted concerning the change from the proposed plan to the adopted plan affecting the parcel in question, to have been based upon existing circumstances, existing land uses at that place and a movement in the distribution of parcels in the overall county associated with commercial and industrial classifications. Mr. Arrant pointed out, in the final perception he held about the adopted plan, that if the suitability analysis provided would support a commercial classification, that is to say, that it was equally suitable for commercial development or industrial development and there was data and analysis providing the need and extent of distribution for the classification, then it is the local government's choice to determine which site will be designated commercial and which site will be designated industrial. With that in mind, Mr. Arrant found no reason to take issue with the county in its commercial classification for the subject parcel. Mr. Arrant in his knowledge of the parcel in question found no wildlife habitat, wetlands, topographical, geographical or geophysical constraints which would limit the use of this property as commercial or industrial. Consequently, the choice in classification was left to the local government. Having in mind the facts previously found, it is recognized that the reasons for changing the land use classification on the subject parcel from industrial to commercial had a political component, stopping Chemical Development Corporation from doing business in Sumter County, unrelated to appropriate land use planning. Nonetheless other reasons the county gave for changing the classification from industrial to commercial when compared to the criticisms directed to the classification do not convince, to the exclusion of fair debate, that the county should be required to change the plan to reflect an industrial classification for the parcel in question. This finding is supported by review directed to the overall plan for land use classification within the county which is supported by appropriate data and analysis. Finally, Coniglio's expenditures associated with this parcel are not an appropriate topic for disposition in this case. Mining Policy 1.9.1 at pages VII-48 and 49 states the following in its preamble: Mining uses shall be provided for in areas designated as agricultural on the Future Land Use Map and shall be permitted upon approval of a conditional use permit and approval of an operating permit pursuant to a mining site plan as provided for in the Land Development Regulations. It was not proven to the exclusion of fair debate, in fact, no proof was offered to suggest that the approval of a conditional use permit as opposed to a zoning permit should be the proper approach in describing this policy. Consequently, that allegation concerning the county's policy choice in the mining element is without merit. Policy 1.9.1 at page VII-49 goes on to describe the guidelines for controlling land allocation for mining purposes where it states: The following guidelines shall be used to control land allocation for mining: Allocation of mining land use shall be based on a projected average need of 100 acres per year or a total of 1,000 acres during the ten year time period of the Plan and may be permitted pursuant to the goals, objectives and policies of the Plan as needed up to 1,000 acres. Allocation of mining land use above this projected need shall require a Plan amendment. For purposes of determining the amount of mining land permitted, the Board of County Commissioners shall issue a finding with each operating permit that clearly delineates the amount of land dedicated to the actual mined area plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings necessary for the actual mining of land. Areas allocated for wetlands, buffers and other lands required in the application to insure compatibility with adjacent land uses or protection of resources shall not be counted toward the ten-year allocation of land for mining purposes. To ensure that an equitable balance among applicants is maintained in allocation of mining land, the following criteria shall apply: Within each calendar year, no individual mining operation shall receive more than 10% of the ten year allocation; No individual mining operation shall receive more than 25% of the ten year allocation within any five year period; Any land allocation requirement for mining purposes larger than those indicated in 1-2 above shall require a plan amendment. The calculation concerning the number of acres per year and total acreage allocated during the ten year review is based upon data collected from the Withlacoochee Regional Planning Council field survey of 1975 incorporated into the county's 1976 comprehensive plan which showed 2190 acres in mining effective 1975. That constitutes the base point for calculation and is related to a further data point in 1986 taken from the county tax assessor's data which established that 3082 mining acres existed in the county upon that date. The use of the data points is described in the data and analysis at page VII-104 where it states: The 1991 acreage was assumed to be the same as the 1986 analysis. The following methodology was used to calculate mining growth to the year 2001: Assume an additional 100 acres per year from 1986-2001 including buffer area. This estimate is based on 2,190 acres in mining in 1976 (1976 Comprehensive Plan) and 3,082 acres in 1986 (See Appendix A). This yields an average of 89 acres per year for the ten year period. This has been rounded upward to 100 acres per year to allow for market fluctuations. Mining shall be a permitted activity in agriculture districts. Applicants shall secure a conditional use permit to mine in agriculture areas; then a mining operating permit will be secured to delineate the exact location of the mined area. 100 acres/year X 15 years = 1,500 acres. 3. 3,082 + 1,500 = 4,582 acres mining in 2001. The goals and policies concerning allocation of mining acreage is clearly based upon appropriate data. The methodology utilized for data collection was appropriately applied and the use of the methodology to derive the allocation was a professionally acceptable methodology. The Petitioners challenge to the county's treatment of the future land use element related to mining would substitute a methodology which examines the amount of land devoted specifically to the mining activity as contrasted with the methodology here which takes into account the mined areas plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings. In addition, the methodology that the challengers would employ does not take into account that the 100 acre per year allocation excludes wetlands, buffers, and other land required to ensure compatibility with adjacent land uses and protection of resources. This attempt at comparison of methodologies is not allowed in the compliance review. In criticizing the data supporting the allocation process, the challengers question whether that data is the best available existing data. They have failed to prove beyond fair debate that the data used in the plan element is not the best available existing data. The decision to exclude areas allocated for wetlands, buffers and other lands required to ensure compatibility with adjacent land uses and to protect resources from the mining acreage count is not part of the allocation methodology. It is an appropriate planning decision in protecting wetlands and other resources and ensuring compatibility with adjacent land uses. In further describing the manner in which the county will ensure compatibility of the mining uses with adjacent land uses and the preservation of natural resources, Policy 1.9.2 at page VII-49 states: Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements: Sumter County shall regulate mining to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12(1990). Blasting shall be regulated pursuant to Sumter County Ordinance 81-11(1981). All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not adjacent to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators. The Petitioners challenging the mining element take issue with the term "adjacent" found at Policy 1.9.2c. They note that Sumter County Ordinance No. 90-12(1990), the mining ordinance, uses the term "contiguous". They argue that this difference in terminology between the ordinance and the plan describes an inconsistency between that ordinance and the plan. Moreover, the challengers claim that there is an internal inconsistency between Policy 1.9.2 and Policy within the conservation element. Policy 1.7.1 in the conservation element at pages III-13 and 14 states: Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements: Sumter County shall regulate mining activities to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12 (1990). Blasting shall be regulated pursuant to Sumter County Ordinance 81-11 (1981). All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not contiguous to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators. The challengers claim that Policy 1.9.2 is inconsistent with the Land Development Code for Sumter County, Chapter 13 as it discusses mining activities. Finally, the challengers take issue with the decision to change policy 1.9.2 in its use of the word "contiguous" in a plan draft and the final decision to use the word "adjacent". In Webster's New World Dictionary the word "adjacent" is defined as: near or close to something; adjoining, joining. "Contiguous" is defined as: 1. in physical contact; touching. 2. near; adjoining. To the extent that the county chose to change the previous terminology in policy 1.9.2 found within the earlier draft from the word "contiguous" to the word "adjacent" in the adopted plan, there is no impropriety in that choice. Such changes are anticipated as being involved in the process. The plan as adopted in its use of the terminology "contiguous" or "adjacent" in the conservation and future land use elements as they discuss mining activities is not an internal inconsistency. The terms adjacent and contiguous taken in context are the same. The use of those terms affords no greater nor lesser protection for the benefit of adjacent land owners or in the protection of resources. Treatment of the mining issue within Sumter County Ordinance 90-12 and the Land Development Code for Sumter County, Chapter 13, when compared to the plan does not point to some inconsistency in using the terms "contiguous" and "adjacent". On balance the treatment afforded the mining element within the plan has adequately responded to the need for proper allocation for future land use compatible with adjacent land uses and the protection of resources.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which finds the plan for Sumter County to be "in compliance" and dismisses the petitions. DONE and ENTERED this 26th day of February, 1993, in Tallahassee, Florida. CHARLES C. ADAMS 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 February, 1993. APPENDIX CASE NO. 92-2683GM The following discussion is given concerning the proposed fact finding of the parties: Coniglio: The proposed facts are accepted with the exception that Paragraph 4 is contrary to facts found. and Paragraph (w) is not necessary to the resolution of the dispute. Department: Paragraphs 1-12 are subordinate to facts found. Paragraph 13 is contrary to the facts in its suggestion that there is a lack of significant industrial activity in the area of the subject parcel. Otherwise, that paragraph is subordinate to facts found. Paragraphs 14 through 18 are subordinate to facts found with the exception that the latter sentence in Paragraph 18 is not accepted in its suggestion that the allegation of political considerations has not been proven. Paragraphs 19 and 20 constitute legal argument. Paragraphs 21 through 23 are subordinate to facts found. Paragraphs 24 through 27 are subordinate to facts found. Paragraphs 28 and 29 constitute conclusions of law. Paragraphs 30 and 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraph 34 is subordinate to facts found. Paragraph 35 constitutes conclusions of law. Paragraphs 36 through 40 are subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is subordinate to facts found. Pownall, Cherry, Jones and Turner: Paragraph 1 is contrary to facts found in its suggestion that appropriate notice and opportunity for public participation was not afforded. Paragraph 2 through 4 are contrary to facts found. The County and Intervenors: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 constitutes conclusions of law. Paragraphs 9 through 13 are subordinate to facts found. Paragraphs 14 and 15 constitute conclusions of law. Paragraphs 17 through 22 are subordinate to facts found. Paragraph 23 constitutes conclusions of law. Paragraphs 24 and 25 are subordinate to facts found. Paragraph 26 constitutes conclusions of law. Paragraphs 27 through 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraphs 34 through 39 are subordinate to facts found. COPIES FURNISHED: Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. John Coniglio, Esquire P. O. Box 1119 Wildwood, Florida 34785 Bill Pownall 202 W. Noble Street Bushnell, Florida 33513 Randall N. Thornton, Esquire P. O. Box 58 Lake Panasoffkee, Florida 33538 Theodore R. Turner Nancy Turner Carousel Farms Route 1 Box 66T Post Office Box 1745 Bushnell, Florida 33513 Frances J. Cherry 3404 C R 656 Webster, Florida 33597 Kenneth L. Jones 3404 CR 656 Webster, Florida 33597 Steven J. Richey, Esquire P.O. Box 492460 Leesburg, Florida 34749-2460 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513 Randal M. Thornton, Esquire Post Office Box 58 Lake Pnasoffkee, Florida 33538 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment (LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1 The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Petitioners' Standing FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3 FOF FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members. MCCA MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members. Martin County Comprehensive Growth Management Plan The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]." CGMP, § 4.4.G. The Plan further provides: Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . . * * * b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD]. * * * Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element. a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . . * * * f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . . The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP, § 4.4.L., § 4.4.M.1.a., i., and j. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per 20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that: Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres. . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.) Throughout the Plan, residential development on lots of 2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land: Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.) Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a. The Plan defines the term "public urban facilities and services" as "regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." CGMP, § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities" (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.). LPIA Provisions The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides: Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.) To the existing 6 objectives under that goal, the LPIA adds a seventh which states: Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms. This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land. The LPIA adopts six policies to accomplish the new objective: Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy. Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development. Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development. Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract. Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program." Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas." The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use. Meaning and Predictability of LPIA Standards Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects. No Guide to Location and Pattern of Development Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO, ¶61.) However, it is not clear why that omission would be pertinent. Undefined Increase in Maximum Density Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase. Waiver of Density Limits Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3). Maintenance of Residential Capacity Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable. Transfer of Wetland Density Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres). Alleged Failure to Remove Density from All Non-PUD Land Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD. In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA. Subsequent Plan Amendments Not Required for PUD Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance. . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA. Public Benefit Criteria Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner. Protection of Land Set Aside Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO ¶107. Contrary to Petitioners' contention, it is reasonably clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category. Alleged Threat to IRL and CERP Lands Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section 4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable. Definition of Critical Habitat Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities " Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner. LPIA and Urban Sprawl In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development"). Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils"). Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services). Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services"). Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses"). Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space"). The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl. LPIA Data and Analysis Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA. Taken together, the data and analysis are adequate to support the LPIA. LPIA and TCRPC Regional Policy Plan Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies 2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and 2.1.1.2. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2. Internal Consistency of the LPIA Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA. SUSDA Provisions The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner. The policy of SUSDA Section 4.4.G.2.g. expressly states: The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water. The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including: Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP]. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD]. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD]. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system. Extension of utility service outside the Urban Service Districts shall be prohibited. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11- 12 through 11-15. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA §§ 4.4.G.2.h.(6)-(7) and 4.5.H. Meaning and Predictability of SUSDA Standards Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts. Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts. SUSDA Data and Analysis Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time. Alleged Environmental Impact of the SUSDA Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services. SUSDA and Urban Sprawl Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA § 4.4.G.2.h.(5). Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created by the SUSDA will be no greater than the pressures that have existed in those places all along. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl. Internal Consistency of the SUSDA Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the LPIA and the SUSDA are "in compliance." DONE AND ENTERED this 10th day of April, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2009.
The Issue The issue in this case is whether the Comprehensive Plan adopted by Jefferson County is not "in compliance" as such is defined at Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing to Review the Comprehensive Plan Adopted by Jefferson County, filed by the Petitioners in this case.
Findings Of Fact Robert B. Rackleff and Jo Ellyn Rackleff own property in Jefferson County. The Rackleff's represent the "Friends of Lloyd, Inc.", an organization opposed to a proposed siting of petroleum product terminal facilities near Lloyd, a town within Jefferson County. The Department of Community Affairs (DCA) is the state land planning agency and administers the requirements of the "Local Government Comprehensive Planning and Land Development Regulation Act", Chapter 163, Part II, Florida Statutes. On or about July 19, 1991, The Board of County Commissioners of Jefferson County adopted a comprehensive plan (plan). The plan was reviewed by the DCA and determined to be "in compliance". 2/ Jefferson County, population 12,243, is located in the northern part of Florida, bordered by the Aucilla River and Madison and Taylor Counties to the east, the Gulf of Mexico to the south, Leon and Wakulla Counties to the west, and the State of Georgia to the north. Jefferson County contains a land area of approximately 392,192 acres. The bulk of the county's residents live in or near Monticello (the county seat), Lloyd, Wacissa, Lamont, Drifton, Capps, Aucilla, Waukeenah, Dills, Thomas City, and Nash. Major transportation routes through Jefferson County include Interstate 10 running east-west through the county just south of Monticello, U.S. Highway 90 lying north of and parallel to I-10 and running through the center of Monticello, U.S. Highway 27 lying south of I-10 and running east-west through the county, and U.S. Highway 98 lying south of U.S. 27 and also running east- west. U.S. Highway 19 enters north Jefferson County at the Georgia border and runs south until it merges with U.S. 27. State Roads 257 and 59 also run north- south. Both State Roads 257 and 59 intersect with I-10, as does U.S. Highway 90. The plan designates land parcels surrounding the I-10/U.S. 90 and I- 10/S.R. 59 interchanges and land parcels on the north side of the I-10/S.R. 257 interchange as "Mixed Use Interchange Business". Future Land Use Element Objective 1, Policy 1-3, of the plan defines the "Mixed Use Interchange Business" designation as follows: A mixed use category located at an interchange with I-10, with a variety of primarily commercial businesses. Because there are but three such interchanges in Jefferson County, the amount of land is necessarily limited; uses in the category are, therefore, limited to those activities requiring locations with high vehicular traffic and easy access to I-10. Appropriate uses include (1) tourist oriented facilities, such as restaurants, automotive service stations, truck stops, motels, campgrounds, and the like; (2) region serving retail complexes or office centers; (3) commerce parks; (4) facilities for the storage and distribution of foods and products including wholesale activity; (5) light manufacture of goods for distribution to other locations; and (6) truck stops. Intensity of use, as measured by impervious land coverage shall not exceed 80%. More intense truck transport and highway oriented activities, and regional distribution centers may also be allowable, subject to special exception approval by the Board of County Commissioners in order to ensure the closest possible scrutiny of such uses. Activities subject to such special exception approval include: uses exceeding 50,000 square feet impervious land coverage; uses with a total land area of five or more acres; uses which have storage capacity for more than 500,000 gallons of petroleum product; or uses on environmentally sensitive lands as defined in the Conservation Element. Performance standards shall be included in the land development regulations for special exceptions to insure that on-site and off-site impacts are adequately planned for and monitored. Impacts include trip generation, transportation access, drainage, water quality, visual appearance, avoidance of environmentally sensitive lands and mitigation of impacts, noise, signage, and air quality. Information to support the application shall be provided by the applicant at the applicant's expense. Activities subject to special exception in this district shall only be required to obtain special exception approval for plan land use changes, and shall not be required at the time of application or receipt of a building permit. (emphasis supplied) Local governments are required to adopt and enforce, within one year following submission of the comprehensive plan for review by the state land planning agency, land development regulations (LDR's) which are consistent with and implement the adopted comprehensive plan. Section 163.3202(1), Florida Statutes. According to the data in the plan, the interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. The county's groundwater system includes the upper and lower Floridan Aquifer. Support documents to the Jefferson County plan note that aquifer recharge occurs through sinkholes near Lake Miccosukee, along the Aucilla River, and through the northeast area of the county. Water contamination can occur through drainage from septic tanks, leaking underground storage tanks, hazardous waste, and contaminated stormwater runoff. The Petitioners generally assert that the plan is not in compliance because the possible siting of a petroleum product facility over the potential area of high groundwater recharge fails to adequately protect water quality and the Floridan Aquifer. Under the "mixed use interchange business" designation, land uses permitted through a special exception process receive specific scrutiny by the Jefferson County Board of County Commissioners. Uses including storage capacity for more than 500,000 gallons of petroleum product or which lie on environmentally sensitive lands as defined in the Conservation Element are required to undergo the "special exception" process. Special exception uses are governed by the performance standards which will be included in the county's land development regulations. Such regulations must insure that on-site and off-site impacts, including water quality, avoidance of environmentally sensitive lands and mitigation of impacts, trip generation, transportation access, drainage, visual appearance, noise, signage, and air quality are adequately planned for and monitored. Section 163.3177, Florida Statutes, identifies the elements of a local government comprehensive plan. Some elements identified in this section may be included in the plan at the local government's option; others are required. 3/ FUTURE LAND USE ELEMENT Section 163.3177(6)(a), Florida Statutes, requires the inclusion of a Future Land Use Element, which "may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this act". Rule 9J-5.006(3)(c)(6), Florida Administrative Code, states that a Future Land Use Element must contain one or more policies addressing the implementation of protection of potable water wellfields and environmentally sensitive land. The Jefferson County Comprehensive Plan Future Land Use Element includes the information required by the statute and rules. Jefferson County's Future Land Use Element Policy 1-5 states: Existing, revised, and/or new land development regulations shall ensure protection of environmentally sensitive lands. Such lands include areas designed 4/ as Conservation on the Future Land Use Map, and may include other isolated areas identified on a site-by-site basis shall be included in the land development regulations. All development is subject to site plan review which is the primary means of ensuring protection. Also refer to specific objectives and policies of the Conservation Element. Future Land Use Element Policy 1-6 provides: The LDR's 5/ shall require protection of all future potable water well fields developed in the County with a design capacity of 100,000 gallons per day or greater through development of locational criteria including a minimum 200 ft. prohibited development zone around the well's perimeter and consideration of distance from hazardous waste storage or generation (including petroleum storage tanks). (This is the same as the G-1 rule from DER.) Future Land Use Element Objective 3 provides: Throughout the planning period, the County shall require that the natural and historic resources of the County be protected from the negative impacts of development activities, and shall require that future land uses are coordinated with the appropriate topography and soil conditions. This objective shall be accomplished using Policies 3-1 through 3-3 Future Land Use Element Policy 3-1 provides: Encourage development and allow growth only in areas without steep slopes. Future Land Use Element Policy 3-2 provides: Drainage improvement plans will be submitted as part of the site plan and/or subdivision review process. Standards will be included in the land development regulations for drainage improvements during development. Future Land Use Element Policy 3-3 provides: Existing regulations in the Jefferson County Development Code shall be continued; the regulations are designed to ensure protection from flood damage, protection of the aquifer, protection of lands adjacent to lakes, streams, and within wetlands. Regulations will be revised for consistency with the objectives and policies of the Jefferson County Comprehensive Plan. CONSERVATION ELEMENT Section 163.3177(6)(d), Florida Statutes, requires the plan to include a Conservation Element for the conservation, use, and protection of natural resources in the area, including water, water recharge areas, and waterwells. Rule 9J-5.013(2)(c)(1), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells. Rule 9J- 5.013(2)(c)(6), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats. Rule 9J-5.013(2)(c)(9), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the designation of environmentally sensitive lands for protection based upon locally determined criteria which further the goals and objectives of the Conservation Element. Rule 9J-5.013(2)(c)(10), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the management of hazardous wastes to protect natural resources. The Jefferson County Comprehensive Plan Conservation Element includes the information required by the statute and rules. Conservation Element Objective 2 provides: In order to protect water quality, the County shall protect all its surface waters and ground waters from the intrusion of pollutants throughout the planning period This shall be accomplished through: continued implementation and enforcement of the Jefferson County Land Development Code, which requires a site plan review process for all development; correction of drainage deficiencies by 1992, and by the creation of a stormwater drainage plan for Lake Miccosukee and the Aucilla River (north of US27/19) as soon as funding is available. Upon completion of the drainage plan, the County will amend the comprehensive plan for consistency with the recommendations of the drainage plan. Conservation Element Policy 2-1 provides: Throughout the planning period, the County shall require that all new development provide stormwater management systems designed so that post development rates of runoff do not exceed pre-development rates, and to provide treatment of stormwater prior to surface water discharge, consistent with Chapter 17-25, F.A.C. This shall be accomplished using the site plan review process, mandatory for all development, adopted as part of the land development regulations by the statutory deadline. Conservation Element Policy 2-2 provides: The County shall coordinate with the Department of Environmental Regulation, Bureau of Waste Management to ensure that the existing underground leaking tanks are remediated by the owner expediently, and in a manner which does not further threaten ground water quality. Conservation Element Policy 2-3 provides: The County shall adopt a wellfield protection ordinance (for protection of cones of influence and waterwells) by the statutory deadline, a hazardous waste management ordinance by 1991, and a shoreline/waterfront protection ordinance by 1992 to ensure protection of ground and surface water. Conservation Element Policy 2-4 requires the county to consult with the DER and the water management districts to ensure that water withdrawal within two named sites will not increase groundwater contamination from said sites. Conservation Element Policy 2-7 provides: The County shall coordinate with the Suwanee river and Northwest Florida Water Management Districts in the protection of prime recharge areas, once such areas have been designated by the Districts. Conservation Element Policy 2-8 provides: The land development regulations shall limit impervious surfaces, and require onsite retention of stormwater runoff in the County's high recharge areas. Conservation Element Objective 3 provides: Throughout the planning period, the County shall protect all areas that fall within the 100-year floodplain. The County shall use the Flood Insurance Rate map and the site plan review process for all development, as the tools for implementation. Conservation Element Policy 3-1 provides: The County shall continue to enforce the existing floodplain ordinance restricting development if (sic) floodprone areas. The ordinance shall continue to prohibit the following within the 100 year floodplain: fill; structures (other than on stilts); common water supplies or sewage treatment facilities; and roads, except as infrequent intervals as necessary to provide access to private or public property. Permitted uses in the 100 year floodplain shall include agriculture; silviculture; residential structures, only where fill is not required and the first floor elevation is at least one foot above the 100 year flood, and, only at very low densities; recreation (such as hiking trails); native vegetation and wildlife habitat. The ordinance shall continue to protect the functions of floodprone areas through its requirement that flood areas are to be treated as positive visual open space, wildlife habitat, and as water recharge and discharge resources. Conservation Element Policy 3-2 provides: The floodplain ordinance shall protect the water quality and wildlife habitat values of shorelines and riverine floodplains by establishment of a contiguous vegetative buffer along the Wacissa and Aucilla Rivers, of at least 50 foot in width, measured from the wetlands jurisdictional line, within which permanent structures will be prohibited, and clearing of native vegetation (other than areas designated for silvicultural use) shall be limited to only to (sic) provide reasonable access to the shoreline. Shoreline buffers shall be established for Lake Miccosukee. Conservation Element Objective 4 provides: Throughout the planning period, the County shall conserve the water supply and protect the quantity and quality of current water source and any new water sources. This objective shall be accomplished using Policies 4-1 through 4-4. Conservation Element Policy 4-1 provides: The County shall enforce water conservation during times of drought by enacting an ordinance which prohibits irrigation between 10:00 AM to 6:00 PM, and shall keep the public informed of these restrictions through newspaper notices and posted notices. Conservation Element Policy 4-2 provides: The County shall continue to adhere to any emergency water conservation measures imposed by the Northwest Florida and Suwanee River Water Management Districts. Conservation Element Policy 4-3 provides that all new construction and all remodeling activities utilize fixtures conforming to a specified schedule of maximum water usage. Conservation Element Policy 4-4 provides: The County shall enact policies that allow septic tanks only in areas where public sewer is unavailable and only upon issuance of a Jefferson County Health Department permit. Conservation Element Policy 4-5 provides that the county will promote and encourage agricultural land owners to incorporate specified water conserving farming methods. Conservation Element Policy 4-6 provides: Future water demand for nonpotable water uses should be met through the use of water of the lowest acceptable quality for the purpose intended. To this end, the County may require that developers requiring large amounts of water for use other than drinking water utilize reclaimed water from stormwater systems and treated wastewater. Conservation Element Policy 5-1 provides: By the statutory deadline for adoption of land development regulations, the County shall adopt regulations for the preservation and conservation of those areas which are known habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. By 1995, the County shall develop and complete a program to identify, protect and enhance those specific areas which contain unique vegetative communities, springs, caves, sinkholes, ravines, or are suitable for, habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. Conservation Element Policy 5-7 provides: In order to carry out Policy 5-1, the County shall: establish a citizens or other committee to initiate the vegetation and wildlife habitat identification program, based upon the initial data provided by the Comprehensive Plan, and coordination with US Fish and Wildlife and the Florida Game and Freshwater Fish Commission. use innovative techniques in the land development regulations for preservation of such areas, such as: designation and regulations of conservation areas; site plan review; on-site density transfers to allow clustering of allowable units to protect environmentally sensitive portions of a site; and, overlay zoning whereby density calculations and developable land expectations area (sic) based on net developable acreage after excluding the environmentally sensitive portions. Conservation Element Policy 5-8 provides: The County shall promote the designation and protection of natural reservations designated within the County, through cooperation with the federal government regarding St. Mark's National Wildlife Refuge and the Aucilla Wildlife Management Area, the State's CARL program, the Water Management District's Save Our Rivers and SWIM Program, and designation of such areas on the Future Land Use Map as conservation. Conservation Element Policy 5-10 provides: Natural resources, such as wetlands, water bodies, springs, sinkholes, caves, and habitat of endangered, threatened and species of special concern are valuable resources which need protection, and are therefore designated as environmentally sensitive lands. These lands which are threatened by urban development, as well as any lands identified during the County's vegetation and wildlife habitat program to be of critical habitat for designated species, shall be protected from encroachment through the land development regulations, adopted by the statutory deadline. The Regulations shall establish performanc standards for development in such environmen- tally sensitive areas. Any environmentally sensitive lands designated for Silviculture shall be required to us (sic) the US Forest Service Best Management Practices, and are subject to the requirements of Policy 5-11. Policy 5-11 prohibits development of land designated as "Agriculture I" on the Future Land Use Map. To develop such land requires amendment of the comprehensive plan, preceded by an inventory of all wetlands and other environmentally sensitive lands as well as documentation that the proposed use will not negatively impact the environmentally sensitive lands. Conservation Element Policy 5-6 provides conservation-related criteria for permitting commercial mining activities in the county, however, there are currently no commercial mining activities in Jefferson County. Conservation Element Policy 5-13 requires that the county continue its efforts in reducing erosion in coordination with the Soil Conservation Service, and continue to notify farmers of the opportunities available towards reducing erosion. Conservation Element Policy 5-14 requires that silvicultural lands be managed to reduce erosion. Conservation Element Policy 5-15 requires that best management practices be utilized for soil conservation. Conservation Element Objective 6 provides: Throughout the planning period, the County shall prohibit the disposal of hazardous wastes into the public sewer system, canals and ditches, wetlands, stormwater facilities, unlined landfills and other unsafe areas. The hazardous wastes which are prohibited will be listed in the County's revised land development regulations. The County shall ensure that all hazardous waste is properly handled, generated or stored during the site plan review process, required for all development. Conservation Element Policy 6-1 provides: Through intergovernmental coordination and public education programs, beginning within six months after plan adoption, the County shall encourage that residents participate with the City of Monticello in promoting and participating in hazardous waste amnesty days. Conservation Element Policy 6-2 provides: In order to protect natural resources and public sewer systems, the County shall prohibit the unsafe disposal of hazardous wastes by enacting and enforcing an ordinance by the statutory deadline for adoption of the land development regulations. The ordinance shall prohibit disposal into canals, ditches, wetlands, stormwater facilities, unlined landfills and other safe areas, as well as require that any land use proposing to store, generate, or handle hazardous waste; develop an emergency response plan addressing accidents; ensure that DER standards for transfer and storage of hazardous waste are implemented; and, ensure that the site will not degrade quality of ground or surface water or other natural resources. INFRASTRUCTURE ELEMENT Section 163.3177(6)(c), Florida Statutes, requires that the plan include a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (commonly identified as the "Infrastructure Element") as follows: A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area. The element may be a detailed engineering plan including a topographic map depicting areas of prime groundwater recharge. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to s. 373.0395. These areas shall be given special consideration when the local government is engaged in zoning or considering future land use for said designated areas. For areas served by septic tanks, soil surveys shall be provided which indicate the suitability of soils for septic tanks. (emphasis supplied) Section 373.0395, Florida Statutes, provides: Each water management district shall develop a ground water basin resource availability inventory covering those areas deemed appropriate by the governing board. This inventory shall include, but not be limited to, the following: A hydrogeologic study to define the ground water basin and its associated recharge areas. Site specific areas in the basin deemed prone to contamination or overdraft resulting from current or projected development. Prime ground water recharge areas. Criteria to establish minimum seasonal surface and ground water levels. Areas suitable for future water resource development within the ground water basin. Existing sources of wastewater discharge suitable for reuse as well as the feasibility of integrating coastal wellfields. Potential quantities of water available for consumptive uses. Upon completion, a copy of the ground water basin availability inventory shall be submitted to each affected municipality, county, and regional planning agency. This inventory shall be reviewed by the affected municipalities, counties, and regional planning agencies for consistency with the local government comprehensive plan and shall be considered in future revisions of such plan. It is the intent of the Legislature that future growth and development planning reflect the limitations of the available ground water or other available water supplies. (emphasis suplied) Although Jefferson County's groundwater system includes the upper and lower Floridan Aquifer, the regional water management districts have not completed their studies and have not designated areas of Jefferson County as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to Section 373.0395. Accordingly, the plan does not designate areas of prime groundwater recharge. Plan maps indicate where the potential for high recharge exists. As stated in the "needs assessment" at page 57 of the support documents to the Conservation Element: [A]t the present time insufficient information is available to allow the county to institute a site specific comprehensive aquifer recharge protection program. This problem should be remedied with the completion of the GWBRAI groundwater basin study for Jefferson County by the NWFWMD (Northwest Florida Water Management District) and the SRWMD (Suwanee River Water Management District). Until this GWBRAI becomes available, the county should adopt interim measures to promote protection of aquifer recharge functions, based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. The interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. Pursuant to the special exception requirements set forth in the "mixed use business interchange" designation, the area shall receive special consideration in zoning or considering future land use for the area. Until prime groundwater recharge areas are designated, in order to promote protection of aquifer recharge functions, land use decisions will be based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. Rule 9J-5.011(2)(c)(3), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for establishing and utilizing potable water conservation strategies and techniques. Rule 9J-5.011(2)(c)(4), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for regulating land use and development to protect the functions of natural drainage features and natural groundwater aquifer recharge areas. The Jefferson County Comprehensive Plan Infrastructure Element includes the information required by the statute and rules. Jefferson County's Infrastructure Element Goal 4 is to conserve and preserve the values and functions of the County's natural groundwater aquifer recharge areas. Infrastructure Element Goal 4, Objective 1 provides: The County shall conserve and protect the values and functions of natural groundwater aquifer recharge areas from adverse impacts through adoption of land development regulations by the statutory deadline and coordination with federal, state, and local agencies throughout the planning period. Infrastructure Element Goal 4, Policy 1-1 provides: The County shall seek assistance from the Northwest Florida and Suwanee River Water Management Districts in the management of prime aquifer recharge areas, once such information is made available. The comprehensive plan shall be amended at that time as necessary to protect prime aquifer recharge areas. Infrastructure Element Goal 4, Policy 1-2 provides: The land development regulations shall limit impervious surface ratios for new development and shall require management of stormwater to ensure post development run-off does not exceed predevelopment run-off rates. Infrastructure Element Goal 4, Policy 1-3 provides: The County shall allow the re-use of treated effluent and stormwater for irrigation, and shall encourage such re-use during the site plan review process. Infrastructure Element Goal 4, Policy 1-8 provides for closure of the current landfill upon completion of the replacement landfill, such closure to be handled in accordance with DER requirements. Infrastructure Element Goal 2, Policy 2-1 sets forth limits on the use of new on-site wastewater treatment systems in new development and provides that such existing on-site systems may remain in service until central service is available. INTERGOVERNMENTAL COORDINATION Petitioners allege that the Intergovernmental Coordination Element contained within the plan is not in compliance, in that it allegedly fails to provide a mechanism for coordinating protection of the Floridan Aquifer and water quality in Leon and Jefferson Counties. Petitioners further allege that the plan contains no coordination of common issues such as fire protection and protection of drinking water. The goals, objectives, and policies of the Intergovernmental Coordination Element appropriately provide for formalized coordination of land use decisions with surrounding counties in order to protect water quality and quantity. The Intergovernmental Coordination Element does not specifically address fire protection. However, the evidence fails to establish that currently available fire protection is inadequate, or that, if additional protection is required, the county is unable to provide such services. INTERNAL INCONSISTENCY Section 163.3177(2), Florida Statutes, provides: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.... Rule 9J-5.005(5)(a), Florida Administrative Code, provides: The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format. Where data are relevant to several elements, the same data shall be used, including population estimates and projections. Petitioners allege that the plan's Future Land Use Element, which includes the "mixed use interchange business" designation, is inconsistent with the policies and goals of the Conservation Element, which includes the policies related to water quality protection. The evidence fails to support the assertion that the plan is internally inconsistent. The "mixed use interchange business" designation, including the enhanced scrutiny of the special exception provisions for specified and more intensive uses, is not inconsistent with the provisions of the plan related to protection of groundwater and aquifer recharge areas. Further, the evidence does not establish that the plan is inconsistent with Chapter 187, Florida Statutes, the state's comprehensive plan. Petitioners asserted that the plan did not contain the best available information in existence at the time the plan was adopted. Section 163.3177(10)(e), Florida Statutes, provides: It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data....Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments.... The county did not, and is not required to, produce original data in order to prepare and adopt a comprehensive plan. Petitioners suggest that the DCA erred in not considering Department of Environmental Regulation data identifying petroleum storage facilities which experienced leaks or spills reported to the DER. However, the evidence offered by Petitioners at hearing did not support the suggestion that such data was more appropriately considered than the data set forth in the county's plan. The inference suggested by Petitioner's evidence is that some petroleum storage facilities pose a threat to groundwater supplies due to leaking tanks and operational errors. However, the evidence does not indicate whether such facilities were designed to the prevent such occurrences, the types of safeguards installed, the types of maintenance required at such facilities (and whether it was performed), or whether, and the extent to which, the reported leaks or spills resulted in ground or surface water contamination. The Petitioners further assert that the plan's data related to aquifer recharge is unacceptable because it is not site specific. The general aquifer recharge map in the plan is based upon U.S. Geological Survey data, and a U.S. Bureau of Geology map. The plan also includes wetlands maps based on U.S. government information and a National Wetlands Conservatory survey. Due to the failure of the water management districts to complete the study of the county's prime aquifer recharge areas, reliable site specific information is not yet available. The plan maps adequately indicate the areas where the potential for high groundwater recharge may exist.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs enter a Final Order dismissing the Petition of Friends of Lloyd, Inc., Robert B. Rackleff and Jo Ellyn Rackleff and finding the Jefferson County Comprehensive Plan to be "in compliance" as defined at Section 163.3184(1)(b), Florida Statutes. RECOMMENDED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 31st day of July, 1991.
The Issue Whether Escambia County Ordinance No. 2017-65 (Ordinance) adopted on November 30, 2017, amending the Heavy Commercial/Light Industrial (HC/LI) zoning district in the Escambia County Land Development Code (LDC) is consistent with the 2030 Escambia County Comprehensive Plan (Comp Plan). Whether Remedial Ordinance No. 2018-30 (Remedial Ordinance) adopted on August 2, 2018, alleviates any inconsistency in the Ordinance such that the HC/LI zoning district regulation is consistent with the Comp Plan.
Findings Of Fact The Petitioner lives and owns property in Cantonment, Escambia County, Florida, in proximity to parcels of land impacted by the Ordinance and Remedial Ordinance. As such, the Petitioner would be subject to an increase in noise and traffic resulting from the Ordinance and Remedial Ordinance, as well as an adverse change in the character of her rural neighborhood. The County is a non-charter county and political subdivision of the State of Florida. The County is the affected local government and is subject to the requirements of chapter 163. DEO is the state land planning agency and has the duty to review and investigate petitions submitted under section 163.3213, challenging land development regulations adopted by local governments. The Ordinance was enacted to amend Part III of the County's LDC to address consistency of parcels zoned HC/LI with the MU-S FLU Category. The preamble to the Ordinance indicates a previous consolidation of zoning districts implemented on April 16, 2015, "did not eliminate all occurrences of zoning districts that appear to allow uses, density, or other intensities of use not authorized by the prevailing purposes and associated provisions of applicable future land use categories." The County's Board of County Commissioners (Board) found that "there are occurrences of HC/LI zoning within the MU-S future land use category," and "it is in the best interests of the health, safety, and welfare of the public to address any inconsistency created by HC/LI zoning within the MU-S future land use category." After the DEO's determination of partial inconsistency, the County adopted the Remedial Ordinance, which makes no reference to the April 15, 2015, consolidation of zoning districts in the preamble. In addition, the Remedial Ordinance amends the Ordinance to delete certain confusing references to parcels and their previous zoning as of April 15, 2015. Thus, the Remedial Ordinance is much clearer than the Ordinance in addressing the prior inconsistency created by HC/LI zoning within the MU-S FLU category. Mixed-Use Suburban Future Land Use Category The MU-S FLU is described in FLU Policy 1.3.1 of the Comp Plan as "[i]ntended for a mix of residential and non- residential uses while promoting compatible infill development and the separation of urban and suburban land uses." The MU-S FLU lists the range of allowable uses as "[r]esidential, retail sales & services, professional office, recreational facilities, public and civic, limited agriculture." The MU-S FLU prescribes standards, such as a residential maximum density of 25 dwelling units per acre (du/acre) and a non-residential maximum intensity floor area ration (FAR) of one. The MU-S FLU also describes the mix of land uses that the County intends to achieve for new development in relation to location, i.e., the distance from arterial roadways or transit corridors. Within one-quarter mile of arterial roadways or transit corridors: residential percentages of 8 to 25 percent; public, recreational and institutional percentages of 5 to 20 percent; non-residential uses such as retail service at 30 to 50 percent; and office at 25 to 50 percent. Beyond one-quarter mile of arterial roadways or transit corridors: residential percentages of 70 to 85 percent; public, recreational and institutional percentages of 10 to 25 percent; and non- residential percentages of 5 to 10 percent. The mix of land uses described by the Comp Plan MU-S FLU category can be implemented by multiple zoning districts in the LDC. Certain zoning districts within MU-S further the residential intentions of the FLU category and other zoning districts further the non-residential intentions of the MU-S FLU category. However, all zoning districts within MU-S contain some element of residential use. The Ordinance and Remedial Ordinance The Remedial Ordinance amended the purpose subsection (a) of section 3-2.11 of the County LDC by adding language that directly limited the "variety and intensity of non- residential uses within the HC/LI [zoning] district" by "the applicable FLU." This means that although various non- residential uses are permitted in the HC/LI zoning district, the FLU category in the Comp Plan determines the "variety and intensity" of those non-residential uses. The Ordinance had amended subsection (h) of section 3-1.3 of the County LDC to clarify that "[o]ne or more districts may implement the range of allowed uses of each FLU, but only at densities and intensities of use consistent with the established purposes and standards of the category." This clarification is consistent with FLU Policy 1.1.4 in the Comp Plan, which states that "[w]ithin a given future land use category, there will be one or more implementing zoning districts." The Remedial Ordinance amended the permitted uses in subsection (b) of section 3-2.11 of the County LDC by deleting the confusing reference to parcel sizes and their previous zoning as of April 15, 2015. In paragraph (6) of subsection 3-2.11(b), the Remedial Ordinance made clear that the listed "industrial and related uses" are not permitted "within MU-S." In general, the other permitted uses mirror the range of allowable uses in the MU-S FLU category. The Remedial Ordinance amended the conditional uses in subsection (c) of section 3-2.11 to make clear that the listed industrial and related conditional uses are not permitted within MU-S. The Ordinance added MU-S to the site and building requirements in subsection (d) of section 3-2.11 to require a maximum FAR of 1.0. The Remedial Ordinance also imposed a maximum structure height for "any parcel previously zoned GBD [Gateway Business District] and within the MU-S" of 50 feet, which is lower than the maximum of 150 feet for HC/LI zoning not within MU-S. The Remedial Ordinance amended the location criteria in subsection (e) of section 3-2.11 to limit "[a]ll new non- residential uses proposed within the HC/LI district" to parcels previously zoned GBD and within the MU-S FLU category that are located along and directly in front of "U.S. Highway 29 or State Road 95A." In addition, another location criterion limits new non-residential uses along arterial streets to within one-quarter mile of their intersection with an arterial street. The provisions of the Ordinance and Remedial Ordinance are consistent with the County Comp Plan. Petitioner's Objections The Petitioner contended that the HC/LI zoning regulation allows intensities and scales of commercial uses that are inconsistent with the character of a predominantly residential FLU like MU-S. The Petitioner based her contention on the Comp Plan definition of "suburban area" and argued that the Ordinance and Remedial Ordinance permitted uses, densities, and intensities that were not "suburban in nature." "Suburban area" is defined in the Comp Plan as "[a] predominantly low-density residential area located immediately outside of an urban area or a city and associated with it physically and socioeconomically." By contrast, "mixed-use" is defined in the Comp Plan as "any use that includes both residential and non-residential uses." See ch. 3, § 3.04, Escambia Cnty. Comp Plan. Contrary to the Petitioner's contention, the MU-S FLU category's primary focus is on a mix of uses in a suburban area. See Findings of Fact Nos. 6-8, above. Indeed, the FLU element of the Comp Plan expresses a purpose and intent to encourage mixed- use development. Also, the Petitioner's focus on the differences between the MU-S and Mixed-Use Urban (MU-U) FLU categories in the Comp Plan was misplaced. The premise that the HC/LI zoning district implements the MU-U FLU category better than it implements the MU-S FLU category was not the issue to be determined in this proceeding. Rather, it was whether the Ordinance, as amended by the Remedial Ordinance, amending the HC/LI zoning district in the LDC is consistent with the Comp Plan. All other contentions not specifically discussed have been considered and rejected.
The Issue The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does not establish whether Dale Dunn lives or owns property in the area. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters. Standing Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen. The Plan Amendment The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses: 1.6.10. Lake Weston Subarea Policy. Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code. The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy. Data and Analysis Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis. Meaningful Standards Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards. Internal Consistency Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan. Urban Sprawl Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.
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 Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance. DONE AND ENTERED this 3rd day of June, 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 3rd day of June, 2015. COPIES FURNISHED: George Anthony Perantoni Friends of Lake Weston and Adjacent Canals, Inc. 5800 Shasta Drive Orlando, Florida (eServed) 32810 Dale Dunn 5726 Shasta Drive Orlando, Florida 32810 Lori A. Erlacher 1620 Mosher Drive Orlando, Florida 32810 (eServed) Sharon R. Leichering Kingswood Manor Association, Inc. 5623 Stull Avenue Orlando, Florida 32810 (eServed) Doreen Lynne Maroth 5736 Satel Drive Orlando, Florida 32810 (eServed) Valerie Lolita Perantoni 5800 Shasta Drive Orlando, Florida 32810 (eServed) Debbie Franklin, City Clerk Town of Eatonville, Florida 307 East Kennedy Boulevard Eatonville, Florida 32751 Joseph Morrell, Esquire Town of Eatonville 1310 West Colonial Drive, Suite 28 Orlando, Florida 32804 (eServed) William Clay Henderson, Esquire Holland and Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact Parties Petitioners Austin, Houston, and Dorn all reside in the City of Cocoa (Cocoa or City). Petitioners Hendry both reside in Cocoa. The Department of Community Affairs (DCA) is the state land planning agency under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Act). Cocoa is located entirely within Brevard County, which is within the jurisdiction of the East Central Florida Regional Planning Council (the Regional Planning Council). The resident population of Cocoa is presently about 18,000 persons. The City encompasses over 4500 acres and abuts the Indian River, which is also identified as the Indian River Lagoon. Preparation of Proposed Plan By Ordinance 6-86, which was adopted on March 25, 1986, the Cocoa City Council designated the Cocoa Planning and Zoning Board as the local planning agency under the Act. The Planning and Zoning Board thereby became responsible for preparing the Cocoa comprehensive plan required by the Act (the Plan), conducting public hearings on the Plan, and recommending the Plan to City Council for adoption. In February, 1987, Cocoa entered into a contract with the Regional Planning Council for assistance in preparing the Plan. Pursuant to the contract, the Regional Planning Council drafted all elements of the Plan except the Potable Water Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which CH2M Hill prepared; the Wastewater Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which Camp, Dresser and McKee prepared; and the Solid Waste Subelement of the Public Facilities Element and related portions of the Capital Improvements Element, which the City prepared. On November 7, 1987, a 4 1/4" by 3" display advertisement in the Florida Today newspaper announced that Cocoa had begun to prepare an update of its comprehensive plan in conformance with the 1985 Local Government Comprehensive Planning and Land Development Act. The advertisement stated that the preparation of the update "will have the effect of regulating the use of lands within the municipal limits of the City of Cocoa." The advertisement advised that copies of documents prepared during the updating process would be on file in the City's Community Improvement Department. The advertisement added that the public would be informed of public meetings through the news media and bulletins posted at City Hall. The Florida Today newspaper is a standard-sized newspaper of general paid circulation in Brevard County and of general interest and readership in Cocoa. The newspaper is published at least five times a week. All advertisements described herein appeared in the Florida Today newspaper and adequately identified the location of the advertised meeting or documents. On November 17, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on November 18, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Traffic Circulation and Recreation and Open Space Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On November 18, 1987, the Planning and Zoning Board conducted a public hearing on the Traffic Circulation and Recreation and Open Space Elements. On November 28, 1987, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on December 2, 1987, at 5:15 p.m. for the purpose of discussing preliminary drafts of the Housing and Conservation Elements of the Plan. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On December 2, 1987, the Planning and Zoning Board conducted a public hearing on the Housing and Conservation Elements. There is some evidence to suggest that discussion of the Conservation Element was carried over to the next regularly scheduled meeting of the Planning and Zoning Board on December 9, 1987. On January 9, 1988, a 1 1/4" by 2 3/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on January 13, 1988, at 5:15 p.m. for the purpose of discussing the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. The advertisement stated that copies of the relevant documents could be obtained from the Community Improvement Department. On January 13, 1988, the Planning and Zoning Board conducted a public hearing on the Drainage Subelement of the Public Facilities Element and the Coastal Management Element. On February 25, 1988, a 1 1/4" by 5 3/4" classified-type advertisement announced meetings of the Planning and Zoning Board on March 9, 1988, at 5:15 p.m. and the City Council on March 22, 1988, at 7:00 p.m. for the purpose of hearing all interested persons on the Future Land Use and Capital Improvements Elements of the Plan. The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department. The record is unclear as to whether these meetings took place, although the Planning and Zoning Board met on March 23, 1988, and discussed the Future Land Use, Intergovernmental, and "Capital Facilities" Elements, as well as the "Sanitary Sewer" Subelement of the Public Facilities Element. On March 28, 1988, a 4 1/4" by 3" display advertisement described the planning process in the same manner as did the November 7 display advertisement. The March 28 advertisement announced that the Planning and Zoning Board and City Council would hold joint workshops on March 29, 30, and 31, 1988, at 5:15 p.m. to discuss "public facilities, coastal management, housing, transportation, recreation and open space, intergovernmental coordination, capital improvement and future land use elements." The advertisement stated that copies of relevant documents could be obtained from the Community Improvement Department. The record is unclear as to whether these meetings took place as scheduled, although, at minimum, it appears that the March 29 meeting took place. On April 23, 1988, at 5:15 p.m., the Planning and Zoning Board commenced a special meeting with the following persons present: six members and the chairman of the Planning and Zoning Board, four members of the City Council and the Mayor, the City Manager and Assistant City Manager, the Community Improvement Administrator, a City planner, and four representatives of the Regional Planning Council. The purpose of the meeting was to consider the Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination, and Capital Improvements Elements of the Plan. The Future Land Use Element was unavailable, so the City Council postponed the discussion of this element until a later date. At the April 13 meeting, Rochelle Lawandales, the Community Improvement Administrator, stated that no formal action would be taken at the workshop, but that the Plan would go before the City Council on April 26, 1988, at 7:00 p.m. during a public hearing. At the conclusion of the April 26 hearing, the City Council would be expected to authorize staff to submit the Plan to DCA. The April 13 meeting was adjourned at 8:05 p.m. On April 19, 1988, at 5:15 p.m., the Planning and Zoning Board began a special meeting with largely the same persons who attended the April 13 meeting. The purpose of the meeting was to discuss the Future Land Use Element and Future Land Use Map. The discussion culminated in the consensus that the Planning and Zoning Board would recommend that the City Council transmit the Plan to DCA. The meeting adjourned at 6:55 p.m. Transmittal of Proposed Plan to DCA On April 19, 1988, a 6 1/2" by 10 1/2" display advertisement with a large-type headline appeared on page 5 of Section B of the newspaper. The advertisement, which was in the form prescribed by Section 163.3184(15)(c), Florida Statutes, announced that the City Council proposed to change the use of land within the City and that on April 26, 1988, at 7:00 p.m. the City Council would conduct a public hearing on the Plan proposed to be sent to DCA (Proposed Plan). The advertisement contained a large map of Cocoa with major street names indicated, listed the nine major elements of the Proposed Plan, and advised that interested persons could submit written comments or attend the public hearing to be heard regarding the transmittal of the Proposed Plan to DCA. The advertisement stated that the City Council would not give final approval to changes proposed at the hearing, which was described as part of the process designed to lead to the eventual adoption of the Plan. On April 26, 1988, the City Council conducted a public hearing. Following receipt of public comment, which was relatively limited, Mayor Dollye Robinson closed the public hearing, and the City Council unanimously approved Resolution No. 88-17, which authorizes the transmittal of the Proposed Plan to DCA. On May 1, 1988, DCA received the City of Cocoa-- Comprehensive Plan, which consists of two volumes. Volume I is Background Analysis. Volume II is Goals, Objectives, and Policies. DCA also received a document containing population estimates for Cocoa and an Evaluation and Appraisal Report (EAR), dated April, 1988, assessing the performance of the Cocoa comprehensive plan adopted under the Local Government Comprehensive Planning Act of 1975. (The Proposed Plan and Plan are unrelated to the comprehensive plan assessed in the EAR.) On May 8, 1988, a 4 1/4" by 3" display advertisement announced that the Proposed Plan and supporting documentation were available for review at the public library and city hall. Proposed Plan: Goals, Objectives, and Policies General The Act requires that each comprehensive plan contain eight or nine major elements: Capital Improvements; Future Land Use; Traffic Circulation; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge (identified as the Public Facilities Element in the Proposed Plan and Plan); Conservation; Recreation and Open Space; Housing; Intergovernmental Coordination; and, if applicable, Coastal Management. Each element comprises goals, objectives, and policies, which respectively represent long-term ends, criteria by which progress toward the goals can be measured, and programs and activities by which the goals are to be achieved. The goals, objectives, and policies in the Proposed Plan are largely carried over to the Plan. Future Land Use Element and Map The Proposed Plan contains two objectives under the Future Land Use Element. They are: Objective 1.1: Future growth and development will be managed through the preparation, adop- tion, implementation and enforcement of land development regulations. Objective 1.2: Future development and redevel- opment activities shall be directed in appro- priate areas as depicted on the Future Land Use Map, consistent with sound planning principles, minimal natural constraints, and the goals, objectives, and policies provided in the . . . Plan. Policy 1.1 of the Future Land Use Element provides in part: The City will adopt land development regula- tions that shall contain specific and detailed provisions required to implement the . . . Plan and which: * * * Regulate the use of land and water consis- tent with this element and ensure the compati- bility of adjacent land uses and provide for open space; Protect the wetland areas identified in the conservation element and future land use element; Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management; * * * H) Provide that development orders and permits shall not be issued which would result in a reduction of the adopted level of service standards. The Future Land Use Map, which is part of the Proposed Plan, depicts eight land use categories: low-, medium-, and high-density residential, commercial, industrial, institutional, open space and recreational, and activity center. Policy 1.2 specifies a maximum density of seven units per acre for low- density residential and 15 units per acre for medium-density residential. The Future Land Use Map in the Proposed Plan depicts four large parcels as open space. These are north of Michigan Avenue, just west of U.S. Route 1; south of Michigan Avenue, just west of U.S. Route 1; north and west of the intersection of Michigan Avenue and Range Road; and east of the north end of Range Road and west of the largest unincorporated enclave surrounded by the City. According to the two Existing Land Use Maps contained in the Background Analysis, which is described in Paragraphs 47-67 below, the four large parcels designated as open space on the Future Land Use Map are wetlands, except for a small strip that is probably a park and is described further in Paragraph 127 below. The four open spaces constitute nearly all of the existing wetlands in the City. Neither the Future Land Use Map in the Proposed Plan nor either of the Existing Land Use Maps in the Background Analysis depicts any historical resources. Housing Element The Housing Element of the Proposed Plan contains the following provisions with respect to historic properties: Objective 3.1.4: Housing designated histori- cally significant will continue to be preserved and protected, and the quality of existing homes and neighborhoods will be maintained or improved. Policy 3.1.4.4: Assist owners of designated historically significant housing to apply for and utilize state and federal assistance programs. Policy 3.1.4.7: The City will aid in the identification of historically significant housing and structures. Public Facilities Element The Public Facilities Element of the Proposed Plan provides the following level of service standards for drainage: design storm event--five year frequency/24-hour duration event; on-site stormwater management--retention of first one inch of rainfall runoff or, with respect to drainage areas under 100 acres with under 80% impervious surface, retention of first one-half inch of runoff; stormwater quantity--no greater than pre-development stormwater runoff flow rates, quantities, peaks, and velocities; and stormwater quality--no degradation of existing water quality condition in receiving water bodies. The Drainage Subelement of the Public Facilities Element of the Proposed Plan contains seven objectives. Three of the objectives focus upon floodplains and wetlands: Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development. Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establish- ment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems. Objective 4.3.7: To ensure that proper and adequate surface water management facilities are provided in response to identified needs. Several policies under Objectives 4.3.5, 4.3.6, and 4.3.7 describe the data still needed by the City to determine its drainage needs and the means by which Cocoa intends to attain the overall goals of the subelement: Policy 4.3.2.5: Efforts will be undertaken to eliminate existing points of direct stormwater discharge into receiving surface waterbodies, where possible, based on the following procedure: engineering studies will be initiated for the purpose of identifying the comparative nonpoint pollution impacts of each direct discharge point, and determining relative priorities for corrective actions (or "retrofit" projects) to be undertaken, based on the extent of-- --adverse impacts on entire receiving waterbody --system retrofitting required to eliminate or minimize the adverse impacts --projected benefits to be accomplished --overall implementation feasibility facility design studies will be initiated for those direct discharge points determined to have the highest priority. The estimated costs of individual corrective action projects will be included as components of the Capital Improvements Program. Policy 4.3.5.2: Drainage needs assessment investigations will be initiated for areas within the City which have been identified as experiencing flooding problems, for the purpose of identifying actions necessary to alleviate the problems. Policy 4.3.5.3: Based on the findings of the drainage needs assessment investigations, engineering studies will be initiated to develop solutions to the identified flooding problems, with the cost estimates being included in the Capital Improvements Program. Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, with appropriate measures being taken to discourage development in affected wetland areas. Policy 4.3.6.2: The City will review its land development and zoning ordinances, regulations and standards with the intent being to remove any requirements which might encourage develop- ment in wetland areas. Policies 4.3.7.1 and 4.3.7.2 promise an inventory of Cocoa's surface water management system followed by an engineering study of the system components to identify the extent of excess or deficient surface water flow or storage capacity. The final policy in this subelement states: Policy 4.3.7.9: Flood control for new develop- ment will be accomplished through the limita- tion of fill in the 100-year floodplain. In cases where there are no alternatives to fill in the floodplain, compensatory storage for such fill will be provided through excavation in adjacent upland areas (above the 100-year floodplain) of a volume equivalent to the loss of storage within the 100-year floodplain resulting from the placement of fill, where such compensatory storage can be accomplished in an environmentally sound and economically feasible manner. Coastal Management Element The Coastal Management Element of the Proposed Plan does not refer to coastal wetlands or historic resources. It does not contain any analysis of the effects on estuarine water quality of existing drainage systems and nonpoint source pollution such as that carried by stormwater runoff. Conservation Element The Conservation Element of the Proposed Plan contains nine subelements. Several of these subelements contain objectives or policies addressing wetlands, floodplains, and stormwater drainage. The Vegetation and Wildlife Habitat Subelement of the Conservation Element provides: Policy 6.4.2: Areas of natural habitat within the 100 year floodplain shall be given priority consideration in the identification of lands which address passive recreational demand and open space objectives. Policy 6.4.3: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain. Policy 6.4.7: The City shall not approve any development which would significantly and adversely alter the ecological functions of freshwater wetlands or deepwater habitat. Ecological functions include: (a) provision of wildlife and fisheries habitat; (b) main- tenance of in-stream flows and lake levels during periods of high and/or low rainfall; (c) erosion control; and (d) water quality enhancement. The Fisheries and Estuarine Habitat Subelement of the Conservation Element provides: Objective 6.5: The City shall protect the ecological well being of the Indian River Lagoon from adverse activities or impacts, so as to maintain or enhance the abundance and diversity of estuarine habitat and species. Policy 6.5.2: The city shall establish site design standards and regulations for the control of stormwater runoff to insure the adequate treatment of stormwater from all new development or redevelopment prior to its discharge to surface waters. Policy 6.5.3: The City shall take steps to identify means for reducing the volume of untreated stormwater discharged to surface waters, and shall develop a program to take corrective action, to the greatest extent feasible. The Water Quality Protection Subelement of the Conservation Element contains similar provisions with respect to the control of stormwater runoff and development of corrective programs. The Floodplain Management Subelement of the Conservation Element states: Objective 6.8: The City shall protect the flood storage and conveyance functions of the 100 year floodplain. Policy 6.8.1: In order to reduce the adverse consequences of floodplain development and simultaneously encourage the conservation of natural habitat, the City's Flood Damage Prevention ordinance shall be amended to discourage construction in the floodplain by requiring the provision of compensatory storage for fill placed within the floodplain. Policy 6.8.2: Developers shall be encouraged to incorporate those portions of sites which are within the 100 year floodplain as open space preservation. Policy 6.8.3: The City shall promote wetlands preservation and non-structural floodplain management by encouraging the use of isolated wetlands as detention areas, where such use is consistent with good engineering practice and does not significantly degrade the ecological value of wetlands. Pre-treatment of stormwater runoff by diversion of the "first flush" shall be required prior to discharge to wetland detention areas. Policy 6.8.4: The City shall encourage public and private agencies . . . in acquiring floodplains. Recreation and Open Space Element The Recreation and Open Space Element of the Proposed Plan provides: Goal 7.2: Ensure the conservation of open space areas in the City to provide aesthe- tically pleasing buffer areas, to serve as wildlife habitats, to act as groundwater recharge areas, to give definition to the urban area, and to enhance and promote natural resources. Policy 7.2.1.2: Designate conservation areas within the City as part of the future land use map in order to preserve open space and fulfill objectives discussed in this element and the Conservation Element. Capital Improvements Element The Capital Improvements Element of the Proposed Plan provides: Objective 9.1: The Capital Improvements Element will establish adopted levels of service for public facilities and capital improvement projects which the City will undertake. The Five-Year Schedule of Improvements will identify projects which a) meet existing deficiencies; b) provide repair or replacement of existing facilities; [and] c) accommodate desired future growth. Objective 9.2: All land use decisions which impact the Capital Improvements Element or Future Land Use Element will be coordinated by the City Manager, or his designee, in conjunction with the City's Planning and Zoning Board, and approved by City Council. Objective 9.3: Annual review of the Capital Improvements Element will be included in the City's budget process. As part of this review the Finance Department shall be responsible for: (1) addressing the fiscal impact of capital improvement projects on revenue and expenditures, and (2) updating the fiscal assessment section of the Capital Improvements Element. Objective 9.4: Public facility improvements that are needed to support new growth will maintain adopted levels of service. Improve- ments to public facilities which result from the impact of new development will require equitable cost participation by the developer. Policy 9.4.1: The City Manager shall initiate impact analysis of proposed development projects to determine the impact of the development on the City's fiscal operations and LOS [i.e., levels of service] for public facilities. Objective 9.5: The City will not approve development which requires public facility improvements that exceed the City's ability to provide these in accordance with the adopted LOS standards. Policy 9.5.1: Before a development is approved, the City Manager or his designee will determine that any needed public facility improvements do not exceed the City's funding capacity. Policy 9.5.2: Development approved prior to the adoption of this Plan which requires improvements to public facilities will be included in the Five-Year Schedule of Improvements with a funding priority designation. The Five-Year Schedule of Capital Improvements in the Proposed Plan includes only four projects: ongoing resurfacing and repair of roads, possible four-laning one specific road, expanding the wastewater treatment plant, and extensive, detailed work to the potable water system. I. Monitoring and Evaluation Provisions regarding Monitoring and Evaluation follow the goals, objectives, and policies in Volume II of the City of Cocoa--Comprehensive Plan. Concerning the public participation requirement, this section states in relevant part: In cases in which the proposed ordinance deals with more than five percent (5%) of the total land area of the municipality the council shall provide for public notice and hearings as follows: The council shall hold two (2) advertised public hearings on the proposed ordinance. Both hearings shall be held after 5:00 p.m. on a weekday and the first shall be held approxi- mately seven (7) days after the day that the first advertisement is published. The second hearing shall be held approximately two (2) weeks after the first hearing and shall be advertised approximately five (5) days prior to the public hearing. The day, time and place at which the second public hearing will be held shall be announced at the first public hearing. [This section is virtually identical to the language contained in Section 163.3184(15)(c), Florida Statutes.] [This section allows notice by mailing instead of advertising.] (Laws of Fla., Ch. 59-1186, Art. V, Section 9; Ord. No. 4-80, Section, [sic] 4-8-80) Proposed Plan: Background Analysis Future Land Use Element and Map The Future Land Use Element of the Background Analysis explains the purpose of the Future Land Use Map: The future location and distribution of land use are shown on the Future Land Use map. This map identifies appropriate types of land uses if all vacant land were to be utilized within the ten year planning horizon. Once the Future Land Use map is adopted, all development regulations in effect subsequent to its adoption must be consistent with it. Land development regulations in particular, shall rely on the map for their rational basis. (Future Land Use Element, Background Analysis, p. 1-3.) The Future Land Use Element of the Background Analysis states that the existing land use in Cocoa in 1987 includes about 389 acres of wetlands, or 8.6%, out of a total of 4520 acres. (Future Land Use Element, Background Analysis, Table 1-2.) Public Facilities Element The Drainage Subelement of the Public Facilities Element of the Background Analysis describes Cocoa's drainage as flowing equally into two waterbodies: the Indian River Lagoon on the east and the St. Johns River on the west. Of the five main drainage areas within Cocoa, three are part of the Indian River Lagoon Watershed and two are part of the St. Johns River Watershed. The map of Drainage Areas/Facilities, which is part of the Drainage Subelement, depicts each of the five drainage areas. Drainage Area III is bounded on the east by the high relict dune line just east of U.S. Route 1, on the west by Clearlake Road, on the south by Dixon Boulevard, and on the north by a low ridgeline in the vicinity of Industrial Park Road. Drainage Area III encompasses the wetlands bisected by Michigan Avenue, just west of U.S. Route 1. These wetlands, which are about 3000 feet from the Indian River, are part of a series of linear marshes running north-south and representing the "major repository" of stormwater drainage from contributing portions of Drainage Area The Background Analysis reports that these marshes function effectively as a surface water management area. Although on the landward side of the dune line, Drainage Area III is within the Indian River Lagoon Watershed because excess water in the area reverse flows into the lagoon during periods of very wet weather. According to the map of Vegetative Cover and Wildlife in the Background Analysis, seagrasses cover either the southeastern portion of the open space/wetlands south of Michigan Avenue or the adjacent land designated as medium-density residential. Noting historical encroachment on these wetlands, the Background Analysis concludes that continued encroachment will reduce the size of the storage capacity and increase the likelihood of outflow into the Indian River Lagoon. Drainage Area IV includes the wetlands found between the north end of Range Road and the largest unincorporated enclave within the City. These wetlands, which drain into the St. Johns River, are the site of Little Mud Lake. According to the Water Quality Protection Subelement of the Background Analysis, Little Mud Lake is largely a willow marsh with little or no open water. What water remains is probably of poor quality. However, the Background Analysis observes that the lack of adequate water quality data for all waterbodies in the City is itself a problem. Drainage Area V includes the largest contiguous wetlands within the City, which is the area north and west of the intersection of Michigan Avenue and Range Road. This area, which drains into the St. Johns River, surrounds Big Mud Lake, whose water quality is probably in poor condition, according to the Background Analysis. The Drainage Subelement of the Background Analysis acknowledges that the surface drainage systems for Cocoa have not been comprehensively inventoried since June, 1968. However, Drainage Area III is known to contribute about 29% of the stormwater runoff-generated pollutant loadings from the City to the Indian River Lagoon in the vicinity of the City. Although the wetlands serve as natural treatment and storage units, "[t]he continued loss of wetland areas will result in a corresponding decline in the overall effectiveness of the remaining wetlands to remove pollutants." (Drainage Subelement, Background Analysis, p. 4-30.) By way of comparison, Drainage III loads the Indian River Lagoon in the vicinity of the City with more than double the poundage of suspended solids than does the Jerry Sellers wastewater treatment plant in Cocoa. As to Drainage Area V, the Drainage Subelement warns that the salutary effect of Big Mud Lake, which serves as a natural treatment unit for stormwater pollutants, will be lost once the lake reaches its assimilative capacity to absorb or fix incoming loads of pollutants. According to the Water Quality Subelement of the Background Analysis, Big Mud Lake is probably eutrophic and "reduction of stormwater pollution . . . is probably the only means to restore [it]." (Water Quality Protection Subelement, Background Analysis, p. 6-62.) The Drainage Subelement concludes, however, that the impact of stormwater runoff-generated loadings is not expected to increase significantly and may even be reduced due to stormwater treatment requirements and stormwater retrofitting projects. However, existing stormwater treatment facilities serve only about 5.5% of the land area within the City, which depends heavily upon existing natural treatment systems for the management and control of stormwater problems. The Drainage Subelement offers 13 recommendations. Four of the first five recommendations suggest an inventory of existing stormwater drainage systems, evaluation of the effectiveness of current strategies, and projection of the impact of future growth on flow volumes. The fourth recommendation reads: Efforts should be undertaken to ensure the protection and preservation of existing wetlands in Drainage Areas #3, 4 and 5, with a priority being placed on the wetlands in Drainage Area #3. Applicable actions include modifications to existing zoning classifica- tions and provisions, land development regu- lations, stormwater, runoff treatment requirements, and other regulatory measures, as well as the possible acquisition of conservation or drainage easements in the wetland areas. (Drainage Subelement, Background Analysis, p. 4-37 and 4-38.) The Floodplain Management Subelement of the Conservation Element of the Background Analysis defines floodplains as those areas that become inundated by water on a recurring basis. The 100 year floodplain is an area that stands a 1% chance in any year that it will be subject to such inundation. The subelement notes that the addition of fill in the floodplains may raise flood elevations to an extent that flooding results to structures previously thought to be outside the floodplain. According to the Floodplain Management Subelement, 745 acres or 16% of the area of the City is located within the 100 year floodplain. Only 66 acres or about 9% of these floodplains are currently developed. Wetlands occupy 120 acres or 16.1% of the 100 year floodplain in the City. In assessing the future needs of Cocoa with respect to floodplains, the Floodplain Management Subelement expressly assumes that the "areas currently supporting open water or wetlands are clearly safe from development." (Floodplain Management Subelement, Background Analysis, p. 6-72.) This subelement concerns itself with the "several adverse consequences" of the development of the remaining 510 acres of undeveloped wetland upland within the 100 year floodplain. The Background Analysis warns that development within the 100 year floodplain "would be dependent upon the proper functioning of all drainage systems needed to overcome soils limitations" or else less severe storm events might result in recurrent flooding. Id. The Floodplains Subelement concludes that adverse consequences, such as flooding existing homes, can best be avoided by "limiting any development which requires the placement of fill" and encouraging the use of nonwetland upland floodplains as open space. Again concerning itself exclusively with nonwetland uplands within the 100 year floodplain, the subelement recommends "minimal development, such as very low density single family homes," to avoid future infrastructure problems due to flooding existing structures. (Floodplain Management Subelement, Background Analysis, p. 6-73.) Recreation and Open Space Element The Recreation and Open Space Element of the Background Analysis acknowledges that lands designated as open space may include wetlands. Conservation Element The Fisheries and Estuarine Subelement of the Conservation Element describes the Indian River Lagoon as a tidal estuary, whose brackish waters are an important resource for commercial and recreational fishing. The subelement notes that considerable amounts of seagrass cover have been lost, presumably due to human-induced environmental changes. One of the causes of the loss of seagrasses, which are a crucial component in the ecological food web of the estuary, is the discharge of inadequately treated stormwater. The Fisheries and Estuarine Subelement concludes that the pollutant discharges, which include stormwater, must be "reversed" if the estuarine resources are to be "maintained." The subelement contains a recommendation that existing drainage systems be improved and projects feasible only through dredging and filling of wetlands be prohibited, except for projects of overriding public interest. (Fisheries and Estuarine Subelement, Background Analysis, p. 6-50.) Coastal Management Element The Coastal Resources Subelement of the Coastal Management Element of the Background Analysis defines the coastal area for the subelement as the entire City. (Coastal Resources Subelement, Background Analysis, p. 5-5.) The subelement reports that shellfish were once harvested commercially through the entire Indian River Lagoon. However, due to the effects of urban and agricultural development, shellfish harvesting in the lagoonal waters adjacent to Cocoa is either restricted or prohibited. The subelement notes that the manatee, which is the only endangered mammal regularly inhabiting the Indian River, suffers from the loss of seagrasses, upon which the manatee grazes. The Coastal Resources Subelement states that the Indian River Lagoon receives little tidal flushing due to its distance from Sebastian Inlet. Thus, whatever pollutants are discharged into the lagoon remain indefinitely. In general, the water quality of the lagoon, according to one source cited in the Background Analysis, ranges from fair to poor. According to another source cited in the Background Analysis, the water quality is poor. The subelement reports that, by November, 1988, Cocoa was projected to complete the expansion of the Jerry Sellers wastewater treatment plant, whose effluent flows into the lagoon. The expansion was to increase the capacity of the plant by 80% of its present capacity. (Coastal Resources Subelement, Background Analysis, p. 5-10.) The Coastal Resources Subelement discloses that the Indian River Lagoons Field Committee was commissioned in 1985 to assist in the preparation of an integrated management plan for the lagoon, which extends over 156 miles through five counties and 40 municipalities. One of the committee's general recommendations is that local governments should include in their comprehensive plans the committee's recommendations for floodplain and critical area protection. (Coastal Resources Subelement, Background Analysis, p. 5-34.) Objections, Recommendations, and Comments of DCA Findings of Other Agencies Upon receipt of the Proposed Plan and supporting documents, DCA distributed them to various state, regional, and local agencies for comment, as part of the intergovernmental review process mandated by Section 163.3184(4) and (5), Florida Statutes. The Act gives these agencies 45 days within which to send their comments to DCA, which has an additional 45 days within which to transmit its objections, recommendations, and comments (ORC) to the local government submitting the plan. In the present case, DCA received responses from the Divisions of State Lands and Resource Management of the Department of Natural Resources (DNR); Comprehensive Planning Division of Brevard County; Regional Planning Council; Bureau of Historic Preservation of the Division of Historical Resources of the Department of State (the Department of State); Planning Department of the St. Johns River Water Management District (the Water Management District); Bureaus of Air Quality, Wastewater Management and Grants, Groundwater Protection, and Waste Planning and Regulation and Sections of Coastal Management and Drinking Water of the Department of Environmental Regulation (DER); Game and Fresh Water Fish Commission; and District 5-- Division of Planning and Programming of the Department of Transportation. DNR commented upon Policy 1.1.C, which as noted above in Paragraph 28 above provides that the City will adopt land development regulations to protect the wetlands identified in the Conservation and Future Land Use Elements. DNR stated that the policy "needs to project a long-term land use program to insure the protection of natural resources." DNR objected that the Coastal Management Element "contains no goal or objective addressing the protection, conservation, or enhancement of remaining coastal wetlands, living marine resources, . . . wildlife habitat, or the maintenance or improvement of estuarine environmental quality." The Regional Planning Council reported that Objective 6.4 in the Conservation Element lacks policies addressing the need to protect upland habitat adjacent to regionally significant wetlands, as required by Policy 43.8 in the plan of the Regional Planning Council. In a letter signed by Secretary of State Jim Smith, the Department of State determined that the Proposed Plan was inconsistent with the historic preservation aspects of the state comprehensive plan and failed to meet the requirements of the Act "regarding the identification of known historical resources . . . and . . . establishment of policies, goals, and objectives for historic preservation." The Department of State stated that Objective 3.1.4 of the Housing Element, which is quoted in Paragraph 33 above, lacks a specific plan of action for achieving its stated goal of preserving housing designated as historically significant. The Department of State faulted the Coastal Management Element for its failure to mention historical structures or archaeological sites and the Future Land Use Element and Map for their omission of known historical resources. The Water Management District stated that the Proposed Plan is "deficient with respect to water-related goals, objectives and policies required by Chapter 9J-5." With respect to the Future Land Use Element, the Water Management District noted the absence of objectives to ensure the protection of natural resources and policies to provide for drainage and stormwater management. The Water Management District found several items missing from the Coastal Management Element. These items included an inventory of the effect of the future land uses on natural resources; objectives protecting coastal wetlands, resources, and habitats; objectives addressing estuarine environmental quality; policies limiting the impacts of development upon wetlands; and policies identifying techniques for the protection of the Indian River Lagoon. The Water Management District concluded that this element did not appear to follow the requirements of Chapter 9J-5 as closely as did the other elements of the Proposed Plan. The Water Management District also objected to the Conservation Element on the grounds that it lacked specificity for the protection of existing natural resources and time frames for the treatment of untreated stormwater discharges, fisheries, wildlife, and wildlife habitats. DER commented generally that the Proposed Plan "appears to have important weaknesses." Referring to the Future Land Use and Capital Improvements Elements, DER noted the need for a number of studies regarding drainage, but the absence of any funds allocated for this purpose. DER also commented generally that "much of the work that identified potential areas for conservation, such as mapping the areas subject to flooding and areas with poor soil suitability or wetlands, was not carefully incorporated into the Future Land Use Element." DER objected that the Future Land Use Element is not based upon analyses of the effect of development and redevelopment of flood-prone areas and the character and magnitude of existing vacant or undeveloped land to determine its suitability for use. DER stated that the Future Land Use Element insufficiently analyzes the wetlands and floodplains identified elsewhere in the Proposed Plan. Findings of DCA General On August 5, 1988, DCA mailed to Cocoa the ORC, which contained 139 objections, the above-described objections and comments of the other state, regional, and local agencies, and general background information concerning the Act and the planning process. The ORC explains that objections relate to specific requirements of the Act or Chapter 9J-5. Each objection includes a recommendation of "one approach that might be taken" to address the objection. A comment is advisory in nature and does not form the basis of a determination of noncompliance. The ORC states that the City's public participation procedures are in violation of Rule 9J-5.004(2)(c) and (e). The objections states that the procedures lack provisions to assure that the public has opportunities to provide written comments and would receive responses to their comments. The ORC recommends that the City revise the procedures to include the necessary provisions. The ORC states that the format of the goals, objectives, and policies are in violation of Rules 9J-5.003(32), (57), and (64) and 9J-5.005(6). The objection states: Goals which do not state a long-term end towards which programs or activities are directed are not acceptable. Objectives which are not measurable, not supported by the data and analysis and are stated in an unspecific, tentative and/or conditional manner are unacceptable. Policies which are tentative or conditional, or do not describe the activities, programs and land development regulations which will implement the plan, are unacceptable. The accompanying recommendation adds: A goal must be written to state a long-term desired result [citation omitted]. Objectives must be written in a way that provides specific measurable intermediate ends that mark progress toward a goal [citation omitted]. A measure such as a quantity, percentage, etc. and a definite time period for its accomplishment should be included in the objectives. Policies answer the question of "how" by specifying the clearly defined actions (programs and activities) local governments will take to achieve each objective and ultimately the identified goal [citation omitted]. If desired, local governments may choose to assign the measurability to a policy . . .. [DCA] is primarily concerned that local governments provide the basis for assessing the effectiveness of their plan. When writing objectives and policies, avoid vague words and phrases (e.g., "adequate," "sufficient," "minimize," and "adverse impacts"), terms which nullify the strength of the statement (e.g., "consider" or "encourage"), or advisory words. "Should" implies an advisory statement which is inappropriate in an adopted portion of the plan. Using the term "shall" provides direction in implementing the plan and will make later evaluation and update of the plan an effective process. . . . The use of words like "ensure" and "encourage" leaves the what and how questions unanswered. [A]n objective cannot be phrased to "maintain or improve," one or the other actions might be set as an objective, but not both. Objectives and policies which are written using phrases such as "if needed," "whenever possible" and "where feasible and appropriate," or other vague words or phrases make the statements unacceptable because the conditional criteria making them specifically operational, have not been stated. 2. Future Land Use Element and Map Included in the background information accompanying the ORC is the following statement from DCA concerning the purpose of the future land use element: The purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of all the comprehensive plan elements. Depicting the future land use patterns on the future land use map serves to (1) anticipate and resolve land use compatibility issues, and (2) provide the information necessary to determine the needed location and capacity of public facilities. (Major Issues--Local Government Comprehensive Planning, p. 3.) The ORC contains three objections and recommendations with respect to the data and four objections and recommendations with respect to the analysis contained in the Future Land Use Element of the Background Analysis. These objections cover the failure of both Existing Land Use Maps to depict natural and historic resources, which is in violation of Rule 9J-5.006(1)(a)6. and 11. The ORC contains seven objections and recommendations with respect to the goals, objectives, and policies under the Future Land Use Element of the Proposed Plan and three objections and a comment with respect to the Future Land Use Map. Two of the objections pertain to the two objectives of the Future Land Use Element. These objections, which are recited above in Paragraph 27, generally provide for the management of future growth through the implementation of unspecified land development regulations and require the direction of future development and redevelopment into appropriate areas as depicted on the Future Land Use Map. The ORC states that these objectives are unmeasurable and unsupported by the data and analysis in the Background Analysis, which is in violation of Rule 9J-5.005(3)(b). Another objection is that the Future Land Use Element of the Proposed Plan lacks objectives addressing the requirements set forth in the following rules: Rules 9J-5.006(3)(b)1.-8. These rules require, among other things, the coordination of future land uses with the appropriate topography, soil, conditions, and availability of facilities and services; and the protection of natural and historic resources. DCA also objects in the ORC to Policy 1.1, which is recited at Paragraph 28 above and calls for land development regulations protecting wetlands and regulating areas subject to flooding, among other items. The ORC states that Policy 1.1 fails to satisfy the definition of a policy set forth in Rule 9J-5.003(64) because it fails to specify how the programs and implementation activities would be conducted. The ORC asserts that Policy 1.1 is unsupported by the necessary data and analysis, in violation of Rules 9J-5.005(1)(a)6. and 10., 9J-5.005(1)((b)3. and 4., and 9J-5.005(2)(a). The missing data and analysis include: the uses of conservation and undeveloped land; the presence on existing land use maps of wetlands and floodplains; and the availability of any facilities and services, as identified in the Drainage Subelement, to serve existing land uses. The ORC states that the Future Land Use Element lacks policies addressing the requirements set forth in Rule 9J-5.006(3)(c)3. and 8. The former subsection requires a policy addressing implementation activities directed toward providing facilities and services to meet locally established level of service standards concurrent with the impacts of development. The latter subsection requires a policy addressing implementation activities directed toward identifying, designating, and protecting historically significant properties. As to the Future Land Use Map, the ORC identifies deficiencies similar to those cited regarding the Future Land Use Element with respect to a lack of support by the data and analysis. The deficiencies in the data and analysis include the failure to show all required land use categories, including conservation and historic resources, which are required by Rule 9J-5.006(4)(a); failure to show one land use category, the redevelopment area, that is described in the text; and omission of all required natural resources, such as floodplains and wetlands, which is in violation of Rule 9J-5.006(4)(b). Noting that the legend on the Future Land Use Map states that the map is intended as an adjunct to the Plan, DCA comments that the legend should reflect that the map will be adopted as part of the Plan. 3. Housing Element One of the objections to the data underlying the Housing Element in the Background Analysis is that they do not include an inventory of historically significant housing listed in the Florida Master Site File, housing designated as historically significant by a City ordinance, or the location of the single house that is listed on the National Register of Historic Places. All of this information is required by Rule 9J-5.010(1)(g). The ORC contains an objection to Objective 3.1.4, which is set forth in Paragraph 33 above. The ORC states that this objective, which promises the preservation of historically significant property, is unmeasurable. 4. Public Facilities Element The ORC sets forth six objections to the data and analysis underlying the Drainage Subelement of the Public Facilities Element of the Background Analysis. These objections point out the absence of data and analysis concerning the following items: the design capacity of the drainage facilities, which information is required by Rule 9J-5.011(1)(e)3.; the existing level of service standard provided by the drainage facilities, which information is required by Rule 9J-5.011(1)(e)5.; and the projected facility capacity, including surpluses and deficiencies, for the second increment of the planning period, which information is required by Rule 9J-5.011(1)(f)3. The ORC states that Objectives 4.3.5, 4.3.6, and 4.3.7 are unmeasurable and, as to Objectives 4.3.6 and 4.3.7, unspecific. These objectives, which are quoted in Paragraph 35 above, respectively deal with flood control, wetlands protection, and adequate surface water management facilities. The ORC is also critical of Policy 4.3.6.1, which is set forth in Paragraph 36 above and promises that the City will avoid infrastructure improvements that encourage wetlands development. DCA recommends that the Drainage Subelement show how the City will conduct the programs and implementing activities to avoid such infrastructure improvements. 5. Coastal Management Element Among the objections to the data underlying the Coastal Management Element of the Background Analysis is that the element lacks any inventory, analysis, or mapping of historic resources, which are required by Rule 9J- 5.012(2)(c). The ORC cites the failure of the Coastal Management Element to include policies addressing the requirements of Rule 9J-5.012(3)(c)1.-3., 8.-10., 13., and 14. These subsections require policies that, among other things, limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, wildlife habitat, and living marine resources; restore or enhance disturbed or degraded natural resources, including wetlands, estuaries, and drainage systems; regulate floodplains, stormwater management, and land use to reduce the risk of loss of human life and property as a result of natural hazards; protect historic resources by, among other things, identifying historic sites and establishing performance standards for the development and sensitive reuse of historic resources; and generally establish priorities for shoreline land uses. 6. Conservation Element The ORC contains an objection to Objective 6.5 of the Fisheries and Estuarine Habitat Subelement of the Conservation Element of the Proposed Plan. DCA finds this objective, which is cited in Paragraph 40 above and requires the protection of the Indian River Lagoon, to be unmeasurable and unspecific. The ORC states that the Conservation Element lacks policies to protect existing natural resources and designate environmentally sensitive lands for protection, which are required by Rule 9J-5.013(2)(c)7. and 9. 7. Capital Improvements Element The ORC notes one objection and recommendation to the data underlying the Capital Improvements Element of the Background Analysis. The objection states: Because data and analysis requirements were missing in the Drainage . . . Subelement, capital improvement needs cannot be adequately evaluated. Capital improvement needs for [this subelement] cannot be assumed to be nonexistent. The ORC states seven objections and recommendations to the analysis underlying the Capital Improvements Element of the Background Analysis. These objections generally concern a lack of information about costs and revenues. The ORC contains objections to Objectives 9.1, 9.2, and 9.7 as unmeasurable and, with respect to Objectives 9.2 and 9.7, unspecific. These objectives, which are quoted at Paragraph 44 above, deal generally with funding capital improvements required by level of service standards. The ORC cites the absence of an objective addressing the requirements of Rule 9J-5.016(3)(b)5. This rule requires an objective showing the local government's ability to provide or require the provision of the needed improvements identified in the Plan's other elements. The rule also requires an objective showing the local government's ability to manage the land development process so that the public facility needs created by previously issued development orders do not exceed the ability of the local government to fund or require the funding of capital improvements. DCA also objects to numerous policies in the Capital Improvements Element on the grounds that they are not measurable. 8. Miscellaneous DCA objects in the ORC that the Proposed Plan lacks goals, objectives, and policies that further numerous policies of the Regional Comprehensive Policy Plan of the Regional Planning Council. Review of ORC and Adoption of Plan Review of ORC Within a few days after receiving the ORC from DCA, Cocoa forwarded the relevant portions of the Proposed Plan to the consultants who had prepared them for the preparation of responses and revisions. On or about August 31, Cocoa received the responses and revisions from the consultants. As noted in Paragraph 46 above, the procedures in effect at this time were those contained in Ordinance No. 4-80. On August 23, 1988, the City Council postponed until its next meeting consideration of a new ordinance establishing procedures for adopting amendments to the Proposed Plan. On August 31, 1988, a 1 1/4" by 8 1/4" classified-type advertisement announced a meeting of the Planning and Zoning Board on September 14, 1988, at 5:15 p.m. for the purpose, among other things, of recommending to the City Council changes to the nine elements of the Proposed Plan. The advertisement stated that the City Council will consider the recommendations of the Planning and Zoning Board during its regularly scheduled meeting on September 27, 1988, at 7:00 p.m. The advertisement advised that the Plan documents, including the Future Land Use Map, were available for public inspection at the Community Improvement "Office." On September 1, 1988, a 6 1/2" by 10 1/2" display advertisement provided the same information as that contained in the advertisement published the prior day. The display advertisement stated: The City urges any citizen to review the Plan documents and submit written or oral comments at any time during the process. Such comments will be presented during the hearing along with response as appropriate. All citizens will be given the opportunity to review the documents, have legal notification, submit written or oral comments, and receive appropriate responses to items related to elements to be adopted by the City as the City's Comprehensive Plan. The display advertisement bore a large, boldface headline in block print, stating: "NOTICE OF CHANGE IN LAND USE." The advertisement contained a large map of the City. A 6 1/2" by 4" version of the same advertisement appeared elsewhere in the same edition of the newspaper. At the regular meeting of the City Council on September 13, 1988, Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, complained about the limited opportunities for public participation, in part caused by the lack of current information available to the public. In response, the City Council announced the dates of September 27 and October 4, 5, or 6 for the adoption hearings for the Plan. Richard Amari, the City Attorney, reminded everyone that the Act gives local governments only 60 days following the issuance of the ORC within which to adopt the Plan. He said that Cocoa was not trying to bypass public participation, but had to comply with the law. At the September 13 meeting, the City Council adopted Resolution No. 88-31, which became effective the same date. The resolution provides in relevant part: Section 1. The City will advertise pursuant to Florida State Statutes and Department of Community Affairs Rule 9J-5. Section 2. The City will post notices of its public hearings in City Hall, Library and Police Department regarding consideration of the Comprehensive Plan. Section 3. The City will provide in its ads encouragement for written and oral comments by the public which written comment will be made part of the public record. Section 4. The City Manager or his designee will assure that responses to written comments received during the process will be given either at the public hearings as appropriate or written responses may be given upon request. Section 5. The plan documents are available for public inspection at City Hall in Rooms 208 & 202, and the Cocoa Public Library during normal business hours. Section 6. This Resolution shall govern activities engaged in by the Planning and Zoning Board acting as the Local Planning Agency during its public hearing on September 14, 1988, and continued from time to time; and by the City Council at its Public Hearing on September 27 as may be continued from time to time. On September 14, 1988, the Planning and Zoning Board conducted a public hearing concerning, among other items, the Plan. The scarcity of Plan documents, especially the Future Land Use Map, limited the amount of meaningful participation by members of the audience and, to a lesser extent, the Board. The Future Land Use Map is a color-coded document. A black and white photocopy of the map incompletely depicts the various land uses shown on the map. An ongoing problem through the planning process was that these color maps, which were prepared for the City by the Regional Planning Council, were not generally available to the public. However, during most if not all of the process, Ms. Lawandales maintained in the Community Improvement Department a large color map, which was generally current. Part of the problem was the City's inability or unwillingness to incur the cost and suffer the inconvenience of printing new maps every time that there was a change in the use assigned to a parcel. Such changes were frequent in the final weeks before adoption of the Plan. At the September 14 meeting, for instance, there was already a handwritten list of 20 numbered proposed changes to the Future Land Use Map. Item 10 of the proposed changes converts from open space to medium- density residential most of the southeast quarter of the open area located north of Michigan Avenue and west of U.S. Route 1, which is part of the linear marsh wetlands within Drainage Area III. The September 14 meeting was a scene of some confusion due to the above-described documents. One Board member moved that the public be given at least those documents that the Board had. The motion failed. In part due to time constraints and limited staff resources, the Board decided instead to copy for the public only the maps and revisions and responses to the goals, objectives, and policies. The meeting adjourned by a 4-2 vote before considering the Future Land Use Map. Two Board members remained after the meeting to share their Future Land Use Maps with the audience. A few days later, City staff persons compiled a large notebook with a complete set of documents related to the Plan and distributed these notebooks to the members of the City Council. These documents consisted of the goals, objectives, and policies of the Proposed Plan; the unrevised Background Analysis; the responses and revisions to the goals, objectives, and policies as a result of the ORC; the EAR; and possibly other documents. On September 18, 1988, a 10 1/2" by 6 1/2" display advertisement announced three workshops and two public hearings to be held by the City Council. The workshops were set for September 19 at 7:00 p.m., September 20 at 5:00 p.m., and September 22 at 6:30 p.m. The first workshop would cover the Public Facilities, "Transportation" (i.e., Traffic Circulation), and Capital Improvements Elements. The second workshop would cover the Coastal Management, Conservation, and Recreation and Open Space Elements. The third workshop would cover the Future Land Use, Housing, and Intergovernmental Coordination Elements. The advertisement stated: "The general purpose of the workshops is to receive public comments and review the Comprehensive Plan." Some local residents were aware of the three workshops at least one day prior to the publication of the advertisement. The same advertisement announced that the public hearings would take place on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. The advertisement stated: The purpose of these hearings is to receive public comments and recommendations on a Comprehensive Plan, and to review and adopt an ordinance adopting the Comprehensive Plan in accordance with the requirements of growth management and land development legislation adopted by the Florida Legislature in 1985 and 1986. On September 19, the Planning and Zoning Board and City Council jointly conducted a workshop on the Public Facilities, Traffic Circulation, and Capital Improvements Elements. Mayor Robinson acknowledged the receipt of a petition of residents from two subdivisions in opposition to changes to their neighborhoods by the Plan. Mayor Robinson informed the audience that the Future Land Use Map would be discussed at the September 22 meeting. The format of the September 19 workshop, as well as the two other workshops, was that City staff would first address an issue, followed, in order, by City Council members, Planning and Zoning Board members, and lastly the audience. City staffpersons at the September 19 workshop identified a list of 38 recommended changes to the Future Land Use Map. Item 10 from the September 14 list was renumbered as Item 7. Item 6 on the September 19 list encompasses what remained of the eastern half the open space north of Michigan Avenue. The recommendation is to designate this wetlands area commercial. The northern tip of the linear marsh wetlands area south of Michigan Avenue and west of U.S. Route 1 is proposed to be redesignated commercial in new Item 10. Item 11 proposes that the remainder of this open space/wetlands be redesignated medium- density residential. The recommended changes appearing at the September 19 workshop substantially eliminate the two other open space/wetlands, as well. Item 33 recommends low-density residential for most of the southern half of the open space/wetlands located between Range Road and the largest unincorporated enclave within the City. Item 34 recommends medium-density residential for most of the northern half of the same open space/wetlands. According to the Soils Map contained in the Background Analysis, the northern portion of Little Mud Lake is in the medium-density residential area and the southern portion of the lake is in the low-density residential area. After these two changes, about one quarter of the original open space/wetlands between Range Road and the unincorporated enclave retains the originally proposed designation as open space. The remaining open space is an L-shaped strip immediately adjacent to the unincorporated area within the City. According to the Existing Land Use Map in the Background Analysis, the portion of the L-shaped strip running north-south is devoted to recreational uses, such as a park. Items 37 and 38 recommend the complete elimination of the largest open space/wetlands, which is located north and west of the intersection of Michigan Avenue and Range Road and is within Drainage Area IV. Item 37 proposes that nearly all of this open space/wetlands, including Big Mud Lake, be redesignated low-density residential. Item 38 proposes that the western portion of this open space/wetlands be redesignated medium-density residential. On September 20, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Coastal Management, Conservation, and Recreation and Open Space Elements. Discussion included the redesignation of the open space/wetlands in the vicinity of Michigan Avenue from open space to medium-density residential and commercial. At the conclusion of the meeting, the City Council agreed to add another parcel to the list of recommended changes to the Future Land Use Map. On September 22, 1988, the Planning and Zoning Board and City Council jointly conducted a workshop on the Housing, Future Land Use, and Intergovernmental Coordination Elements. Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, objected at this workshop to the Future Land Use Element, as well as other matters. Petitioner Houston herself spoke against the Future Land Use Map. A Future Land Use Map was present at this workshop. This map, reflecting the latest addition, showed 39 numbered areas marked in black. The numbers corresponded to the list of recommended changes to the Future Land Use Map. The City Council authorized during the workshop the addition of two more proposed changes. The September 22 workshop marked the last involvement of the Planning and Zoning Board in the planning process. The Board never formally recommended the Plan and supporting documents to the City Council for adoption. However, by the end of the meeting, none of the Board members expressed any remaining objections to the Plan and supporting documents, and most if not all Board members had no serious objections to the Plan. A formal recommendation was therefore unnecessary. Adoption Hearings On September 23, 1988, a display advertisement nearly identical in size and content to that published on September 18 stated that the City Council would conduct public hearings on September 27, 1988, at 7:00 p.m. and October 4, 1988, at 6:00 p.m. on changes in the use of land within the City limits. A similar display advertisement on September 29, 1988, announced the October 4 public hearing. The City Council received a list of 41 proposed changes to the Future Land Use Map at the September 27 hearing and approved the addition of a another property, as well as unrelated revisions to the Wastewater Element. In a presentation to the City Council, Ms. Lawandales referred to a set of revisions to the Future Land Use Element. These revisions were not the same as those prepared by the Regional Planning Council. Ms. Lawandales referred in her presentation to a set of revisions that add only two short clauses to the goals, objectives, and policies of the Future Land Use Element. At the October 4, 1988, public hearing, the City Council received written objections from Ms. Koons, on behalf of Petitioners Austin, Houston, and Dorn, in the form of an eight-page letter. Given the detail and scope of the letter and lack of time, the City Council and staff were justifiably unable to offer a response until after the hearing, which concluded with the adoption of the Plan. During the hearing, the City Council approved the addition of five more properties to the list of 42 recommended changes to the Future Land Use Map. At the conclusion of the October 4 hearing, the City Council adopted the Plan by adopting Ordinance No. 20-88, which in relevant part provides: Whereas, after months of careful review and a public hearing the Planning and Zoning Board sitting as the Local Planning Agency has recommended adoption of the new Comprehensive Plan in substantially the form presented; and Whereas, the City Council has received objections, recommendations, and comments from the [Regional Planning Council, DCA], and various other agencies; and * * * Whereas, the City Council has made certain amendments in the proposed new Comprehensive Plan in light of [public comments], as well as the comments, recommendations, and objections of the [Regional Planning Council, DCA], and various other State agencies; * * * Now, therefore, be it enacted by the City Council of the City of Cocoa, Brevard County, Florida, that: Section 1. That Section 15-4 of the City Code of Cocoa is hereby amended to read as follows: Sec. 15-4 Adoption of Comprehensive Plan. The City's Comprehensive Plan consists of the one (1) volume book entitled Comprehensive Plan--City of Cocoa, Volume II, April 1988, which Comprehensive Plan consists of (i) Goals, Objectives and Policies for nine (9) elements, including Future Land Use, Traffic Circulation, Housing, Public Facilities, Coastal Management, Conservation, Recreation and Open Space, Intergovernmental Coordination and Capital Improvements, (ii) Procedures of Monitoring and Evaluation, (iii) Requirements for Consistency of the Local Comprehensive Plan, and (iv) Population estimates and projections utilized as basis for the plan documents, plus the Evaluation and Appraisal Report dated April, 1988. Section 2. Attached hereto and incorporated herein by this reference is the City's Comprehensive Plan as referenced in Section 1 of this Ordinance, which Comprehensive Plan is hereby adopted as the official comprehensive plan for and of the City. * * * Section 4. Ordinances and Resolutions in Conflict. All Ordinances or Resolutions or parts thereof that may be determined to be in conflict herewith are hereby repealed. The City's Comprehensive Plan approved with the adoption of Ordinance No. 11-80 of July 8, 1980, all as the same may have been amended from time to time, be and the same is hereby repealed. Section 5. Effective Date. This Ordinance shall become in full force and effect immediately upon its adoption by the City Council. Adopted by the Council of the City of Cocoa, in regular meeting assembled, on the 4th day of October, 1988. The ordinance is signed by Mayor Robinson, whose signature is attested by the City Clerk. The review and adoption proceedings ended with the October 4 hearing. At no time during these proceedings did Petitioner David P. Hendry, Sr. or Loula P. Hendry submit oral or written objections to the Plan or Proposed Plan. On or about August 13, 1988, Petitioner David P. Hendry, Sr. sent a letter dated July 31, 1988, to Cocoa and numerous other state and local officials. In the letter, he objected to a marina project that was under consideration. However, these comments did not constitute objections to the Plan or Proposed Plan, of which Petitioners Hendry were unaware until after it had been adopted by the City and determined to be in compliance by DCA. The Contents of the Plan General Besides the goals, objectives, and policies, the Plan consists of the EAR (described in Paragraphs 157-169), Resolution No. 88-31 (described in Paragraph 115), population data (described in Paragraph 170), a section entitled "Consistency of the Local Plan with the State Comprehensive Plan" (described in Paragraph 171), and a section entitled "Monitoring and Evaluation (described in Paragraph 46). The Plan is also supported by the data and analysis contained in the Background Analysis, portions of which are described in Paragraphs 47-67 above. The City submitted revisions to the Background Analysis, portions of which are described in Paragraphs 172-180 below. Goals, Objectives, and Policies The goals, objectives, and policies of the Plan are those of the Proposed Plan, as revised by the City Council. The revisions are as follows: 47 changes to the Future Land Use Map, as identified in Austin Exhibit 10; numerous revisions to the goals, objectives, and policies of the Proposed Plan, as identified in Austin Exhibit 10; two revisions to the proposed Future Land Use Element, as identified in Cocoa Exhibit 4; and revisions to the Solid Waste and "Sanitary Sewer" (i.e., Wastewater) Subelements of the Public Facilities Element, as identified in Cocoa Exhibit 4. There are no other revisions, additions or deletions affecting the goals, objectives, and policies of the Plan. The revisions described in Paragraph 181 below were never adopted by the City and are not part of the Plan. Responses, which are set forth in Austin Exhibit 10, are explanations offered by the City in response to objections and recommendations of DCA; responses do not contain any goals, objectives, or policies. Future Land Use Element and Map One response concerning the Future Land Use Element explains that objections in the ORC to missing data have been satisfied by a revision of the underlying data and analysis. However, as to objections with respect to the failure of the Future Land Use Map to depict conservation and natural resources, the response is that "no . . . conservation or historic resource land use categories are applicable for the city." However, the revised analysis underlying the Future Land Use Element includes a map of the Cocoa Historic District. The response to the objection that the Future Land Use Map fails to show all required natural resources is: "Wetlands are not a designated future land use." The revisions to the goals, objectives, and policies of the Future Land Use Element include revised Objectives 1.1 and 1.2, which are set forth in their proposed form in Paragraph 27 above. These revisions require that the City accomplish the tasks described in the two objectives within one year of Plan submittal. The revisions to the goals, objectives, and policies of the Future Land Use Element contain four new objectives. Objectives 1.3 and 1.4 respectively deal with the elimination by the year 2000 of blight and existing land uses that are inconsistent with the Future Land Use "Plan." Objective 1.5 states that within one year of Plan submittal all development activities "will be consistent with and supportive of the Plan's objectives for protecting natural and historic resources." Objective 1.6 states that within one year of Plan submission land development regulations will provide for the availability of sufficient land area for the siting of public facilities. The revisions contain several new policies. New Policy 1.1.3 allows the City to issue development orders only if the necessary public facilities, operating at the adopted levels of service, are available concurrent with the impacts of the development. New Policy 1.5.1 states that the City will identify its historical resources and maintain an updated file of historically significant properties. New Policy 1.5.3 provides that the City will protect its cultural, historic, and archaeological resources by helping to educate the public of the value of such resources, considering the establishment of a historic district, and purchasing development rights to preserve historically significant properties. Revisions also clarify that open space/residential areas on the Future Land Use Map will be used for park, recreational, and ancillary uses, except as required for other public purposes. 2. Housing Element The City Council adopted several revisions to the goals, objectives, and policies of the Housing Element. Objective 3.1.4, which in its original form is set forth in Paragraph 33 above, is revised to provide that the quality of existing homes and neighborhoods will, at a minimum, be maintained, rather than maintained or improved. Policy 3.1.4.7, which is also set forth in Paragraph 33, is revised to add that the City will perform an annual review of historically significant housing units in order, as previously provided, to aid in the identification of historically significant housing and structures. 3. Public Facilities Element Objectives 4.3.5, 4.3.6, and 4.3.7 are revised as follows with the new language underlined: Objective 4.3.5: To reduce existing flooding problems and to prevent additional flooding problems from being created as a result of future development through actions identified in needs assessments and engineering studies, with the actions being undertaken on a priority basis as determined in the engineering studies, with individual prioritized actions being initiated no later than one year following the completion of the engineering studies, consistent with the schedule of actions contained in the Comprehensive Improvements Plan [sic]. Objective 4.3.6: To ensure the protection and preservation of existing wetlands as viable components of the City's surface water management systems, to include the establishment or maintenance of desirable hydroperiods, water quality conditions, and natural ecosystems applicable ordinances (including design criteria and standards) will be submitted for adoption consideration no later than October 1, 1990, with final adoption within one year following the initial submittal. Objective 4.3.7: To ensure the proper and adequate surface water management facilities are provided in response to identified needs existing deficiencies and needs will be determined, cost and time requirements of corrective actions will be identified, and alternative sources of revenue will be evaluated, with the above information being compiled into a Surface Water Management Plan for the entire City and any external service areas by October 1, 1995. The revision of another objective reiterates the intention of the City to perform engineering studies in the future to gain information necessary to drainage planning: Objective 4.3.2: To protect, preserve or improve the quality of surface drainage waters being discharged from existing and future drainage systems in the City so that such discharges do not contribute to the degradation of water quality conditions in receiving waterbodies or prevent the improvement of degraded conditions, and promote the continuance or establishment of healthy, balanced natural environments through the implementation of ordinances, engineering studies, inspection programs, and coordinative actions with regulatory agencies, with such activities being initiated no later than October 1, 1992. Revisions to several policies show an increasing recognition of the need to plan for drainage and the role of wetlands in such a plan: Policy 4.3.2.6: Proposed development plans will be thoroughly reviewed to ensure that new development does not adversely impact surrounding properties by altering drainage patterns and water storage capabilities so that increased volumes of water are discharged onto the properties or that surface drainage flows from the properties are not impeded or retarded so as to create or contribute to flooding or diminished land usage, unless such lands have been purchased or designated by the City for surface water storage purposes. Policy 4.3.4.3: The City will actively participate in the preparation and implementa- tion of applicable Surface Water Improvement and Management (SWIM) plans being undertaken by the [Water Management District] which will [replacing "would"] involve or include land areas in the City or waterbodies affected by drainage from the City. Policy 4.3.6.1: Public infrastructure improvements that encourage the development of wetlands will be avoided except in the case of overriding public interest, for the purpose of protecting and preserving wetland areas with appropriate measures such as ordinances and development standards being used [replacing "taken"] to control [replacing "discourage"] development in affected wetland areas. Policy 4.3.6.3: The City will review its existing land development design criteria, and revise if necessary, to provide for and encourage the incorporation of existing wetlands into land development plans for the use of "free services" offered by the natural areas provided that: --intrinsic natural wetland values, functions and hydroperiods are not adversely affected, --the wetland is maintained in its natural condition, and --the wetland is protected from future development. 4. Coastal Management Element The revisions add a new goal, objective, and policies that provide: Goal 5.3: The natural resources of the City's coastal area shall be preserved, protected or enhanced to provide the highest possible environmental quality for recreation and the propagation of fisheries and wildlife. Objective 5.3.1: The City shall protect, and restore where necessary, the following natural resources and environmental attributes within its control: air quality, endangered species and their habitat, native vegetation and wildlife, fisheries and estuarine habitat, water quality, and floodplains. New Policy 5.3.1.1 incorporates Objectives 6.1 and 6.2-6.9 and the policies thereunder. The revisions contain another new objective and policies under the new goal described above. Policy 5.3.2.3 states that the City will conform its plan and development criteria to the guidelines set forth in yet-to-be identified resource protection plans to the extent "legally permissible." Policy 5.3.2.4 states that the City shall notify the Resources Council of East Florida and the Indian River Aquatic Preserve of all proposed activities that the City Council considers will directly affect the coastal zone, including changes in stormwater discharge, vegetation removal, or dredge and fill operations. 5. Conservation Element Objective 6.5 of the Fisheries and Estuarine Habitat Subelement, which is quoted in its original form in Paragraph 40 above, is revised as follows: Objective 6.5: By 1993, the abundance and diversity of submerged aquatic vegetation and fish species found in the City's lakes, and in the Indian River within the zone between the Cocoa shoreline and the Intracoastal Waterway, shall be as great, or greater, than they were in 1988. The City cites eight policies under Objectives 6.4 and 6.8 in response to the objection that the Proposed Plan lacks policies addressing the protection of existing natural resources and designating for protection environmentally sensitive land. 6. Recreation and Open Space Element The revisions to the Recreation and Open Space Element contain a new objective concerning open space: Objective 7.2.1: Within one year of Plan submittal the land development regulations will include provisions for addressing the open space needs of the City. 7. Capital Improvements Element The revisions to the Capital Improvements Element include requirements that the City satisfy the requirements of Objectives 9.1 and 9.2, which are set forth in Paragraph 44 above, by 1989 and 1990, respectively. The City revised Objective 9.1 to require, by 1989, the incorporation of levels of service standards into land development regulations. Also, the City added the following language to Objective 9.5, which is quoted in its original form at Paragraph 44 above: "Public Facility needs created by development orders issued prior to Plan adoption will not exceed the ability of the City to fund or provide needed capital improvements." Evaluation and Appraisal Report The EAR, which is referenced in Paragraph 24 above, evaluates the success of an earlier, unrelated comprehensive plan previously adopted by the City. The EAR begins with an introductory section commenting about the area and problems facing the City. The introduction notes that the City has significant undeveloped lands, especially in the northwest section of Cocoa. A large part of these lands is the single open space/wetlands north of Michigan Avenue and west of Range Road. The EAR states: "Much of the land is not developable due to natural constraints; however, primary residential growth will occur in this area in the future." The introduction also recognizes that "drainage is still a major concern" due to the "extensive amount of new development and alteration of some natural drainage systems, as well as continued drainage problems from older development." Among the solutions noted in the introduction are the requirement of retention and detention areas in new developments. Concerning conservation and protection of the coastal zone, the introduction states: The City of Cocoa has continued to seek to protect the integrity of the flood hazard areas as significant development has not occurred in these areas as of this date. Maintaining these areas for natural functions, it will decrease the possibility of flooding and associated problems during heavy cycles of rain. This also adds to the water quality of the area. The major portion of the EAR is devoted to an evaluation of the success of the prior comprehensive plan. Several relevant portions of this self-assessment, which was updated on September 27, 1988, are set forth in the following paragraphs. Objective 2 under Open Space was to "develop flood plain controls which will allow for the protection of some open space around Cocoa's lakes and low areas in the event of development." The result: not accomplished. Objectives 2 and 3 under the Conservation/Coastal Element were to use the City's water retention ordinance to control surface drainage from new developments and continue to make needed drainage improvements. The results: the first objective was accomplished and the second objective was not accomplished as of April, 1988. However, as to the second objective, as of September 27, 1988, "a drainage improvement program has been initiated." Objective 3 under the Land and Vegetation Resources was to control the amount of filling that could occur in new development to ensure proper drainage in surrounding areas. The result: not accomplished in April, 1988, and partly accomplished by September 27, 1988. Objective 1 under Drainage was to develop a citywide Master Drainage Plan with priorities and cost estimates for drainage improvements needed in Cocoa. The result: not accomplished. Objective 3 under Drainage was to control activities in flood prone areas in an effort to prevent a detrimental impact on areawide drainage patterns. The result: not accomplished. Objective 4 was to encourage, as feasible, the use of natural filtration, detention, and retention to reduce runoff-associated drainage problems. The result: accomplished. Objective 11 under Intergovernmental Coordination was to adhere to statewide plans and programs designed to control nonpoint sources of water pollution and prevent alteration of areawide drainage patterns. Result: not accomplished. Miscellaneous The Plan includes the population history and estimates that had been provided with the transmittal of the Proposed Plan in April, 1988. This document is included in Cocoa Exhibit 4. The Plan includes the Consistency of the Local Comprehensive Plan with the State Comprehensive Plan that had been provided in April, 1988, at the end of the City of Cocoa--Comprehensive Plan, Volume II . This document is a cross-index between provisions of the Plan and the state comprehensive plan. Background Analysis In reply to objections and recommendations in the ORC pertaining to the Background Analysis, the City supplemented its data and analysis through revisions. Shortly after the Plan had been adopted and transmitted, the City sent to DCA the revisions to the data and analysis and responses to the objections and recommendations concerning data and analysis. Future Land Use Element and Map In response to the objection that the data omitted conservation uses and historic resources, the City states that there are "no conservation uses" and supplies a map depicting existing historic resources. Elaborating upon the historic resources, the City mentions a survey of historic structures that took place in November, 1987. The resulting list of 72 structures is depicted on a map, which is included in the response and entitled, "Cocoa Historic District." An inventory of the properties is included. In a narrative response to an objection to the absence of an analysis of the need for redevelopment, the City describes its earlier redevelopment efforts, which include the adoption of a redevelopment plan, pursuant to Chapter 163, Part III, Florida Statutes. Noting the objectives of the redevelopment plan as to the elimination of slums and blighted conditions, the narrative concludes: "These goals should be retained and reiterated in the goals, objectives and policies section of the Comprehensive Plan." 2. Housing Element The revised Background Analysis contains a long narrative concerning housing. At the end, the City states that it should take "appropriate measures" to preserve and protect the Porcher House, which is the only structure in the City listed on the National Register of Historic Places, and maintain the quality of older neighborhoods in order to preserve other potentially significant property. 3. Drainage Subelement Responding to an objection that the data and analysis fail to include the capacity allocated to meet the City's drainage needs for the ten-year planning horizon, the City added the following language: However, information is not currently available for future allocation and usage during the ten-year planning period. The available information is insufficient to accurately determine the proportion of design capacities currently being used to handle runoff and groundwater flows in the drainage system components. 4. Capital Improvements Element Elaborating upon its earlier responses to the objections to the Drainage Subelement of the Background Analysis, the City states that "[t]here are no planned capital improvements for the drainage system." The City refers to attached materials in response to numerous objections to the omission from the analysis of future revenue and expenditures available for needed capital improvements. However, such material was not included with the revisions and responses. 5. Coastal Management Element The glossary added to the Background Analysis by the revisions reiterates the statement in the original Background Analysis, noted at Paragraph 65 above, that the coastal area for the Coastal Resources Subelement is the entire City. (The reference to "Rockledge" is a typographical error; the Regional Planning Council, which drafted the Background Analysis and revisions, was working at the same time on the Rockledge comprehensive plan.) (Responses to DCA Comments, p. 12-6.) 6. Miscellaneous In responding to objections to the data and analysis concerning the consistency of the Plan with the plan of the Regional Planning Council, the City cites a new Objective 6.3 with new Policies 6.3.1-6.3.5 and 6.4.9. These items, which generally deal with ensuring the persistence through 1998 of the 1990- level distribution and abundance of endangered and threatened species and their habitats in the City, were neither considered nor adopted by the City Council. Objective 6.3 and Policies 6.3.1-6.3.5 and 6.4.9 are therefore not part of the Plan. Determination of Compliance by DCA After receiving the Plan and supporting documents shortly after October 4, 1988, DCA analyzed the revisions and responses in light of the 139 objections and recommendations contained in the ORC. At the conclusion of the analysis, DCA found that 28 of the revisions and responses were inadequate. These findings are set forth in the Preliminary Findings on the Cocoa Comprehensive Plan, which is dated November 16, 1988. On November 26, 1988, DCA published, by way of a 10 1/2" by 6 1/2" advertisement, its Notice of Intent to Find the City of Cocoa Comprehensive Plan in Compliance. The advertisement complies with the statutory requirements. Ultimate Findings as to Public Participation The public participated in the comprehensive planning process to the fullest extent possible. The City Council adopted procedures to provide effective public participation, including notice to real property owners of all official action affecting the use of their property. Any deficiency in the procedures is immaterial. The Planning and Zoning Board duly discharged its responsibilities as the local planning agency under the Act. The City Council and Planning and Zoning Board amply advertised their many public hearings and provided reasonable opportunity for written comments and open discussion. Comments from the public appear to have received fair consideration. The City disseminated proposals and other information as broadly as possible, although certain materials were available at times only to staff and not the City Council, Planning and Zoning Board, or public. The City was confronted with a substantial task involving the identification, consideration, and resolution of complex technical and legal questions. The City prudently delegated much of the work to City staff and outside consultants. The Act generates severe time pressures, especially on the local government, which has only 60 days to digest the ORC and adopt a plan. Once the City received the ORC, about half of the 60 days was spent by the staff and outside consultants in drafting proposed revisions and responses. Neither City Council or the Planning and Zoning Board could realistically commence public meetings until the members had reviewed the work of the consultants and staff. Critical land use decisions such as those involved in the adoption of a comprehensive plan are politically sensitive. The land use decisions in this case generated considerable controversy in the community. Members of the City Council or the Planning and Zoning Board could not reasonably be expected to commence public meetings before they were aware of what revisions and responses were being proposed by their experts. The greatest shortcoming in the public participation process involved the ongoing proposed changes to the Future Land Use Map and the inability or unwillingness of the City to disseminate in a timely manner updated maps reflecting these proposed changes. Broader and more timely dissemination of the proposed changes would have facilitated more careful consideration of the effects of redesignating the uses of large parcels of land. However, the real target of the frustrations expressed with the public participation process is with the resulting land use decisions, not the process itself. Even in light of the shortcomings with respect to the revisions to the Future Land Use Map, the public participated in the process to the fullest extent possible under the circumstances described above. Ultimate Findings as to Consistency Drainage, Wetlands, and Floodplains Internal Consistency The Plan is internally inconsistent with respect to drainage, wetlands, and floodplains. These inconsistencies render the Plan inconsistent in the related matters of protecting the estuarine waters of the Indian River Lagoon; fisheries, wildlife, and vegetation habitat; and general water quality. In general, the inconsistencies result from the conflict between Plan provisions protecting wetlands, restricting floodplain development, and ensuring adequate drainage, on the one hand, and, on the other hand, the elimination of nearly all of the existing open space/wetlands from, and the failure to depict wetlands as a natural resource on, the Future Land Use Map. Many Plan provisions assure the protection of wetlands, adequacy of drainage, and restriction of development in the floodplains, as well as the protection of the estuarine waters of the Indian River, various habitats, and general water quality. For instance, Policy 1.1.B protects the wetlands identified in the Conservation and Future Land Use Elements. Objective 1.5 requires that development activities will be consistent with and supportive of the Plan's objectives for protecting natural resources. Objective 4.3.6 promises ordinances to ensure the protection of wetlands. Policy 4.3.6.1 restricts public infrastructure funds that encourage the development of the wetlands. Goal 5.3 and Objective 5.3.1 provide for the protection and restoration of estuarine habitats and floodplains. Policy 6.4.7 prohibits any development that significantly and adversely alters the function of the wetlands. Objective 6.5 requires that the condition of the Indian River, in terms of its ability to support numbers and types of aquatic vegetation and fish, be maintained or improved between now and 1993. Policy 6.5.3 requires that the City take steps to reduce the volume of untreated stormwater. Objective 6.8 ensures the protection of the flood storage and conveyance capacities of the 100 year floodplain. However, the protection guaranteed wetlands, floodplains, and drainage is contradicted by the treatment of wetlands in The Future Land Use Map. The map is a critical component of the Plan. According to both Objective 1.2 and the Background Analysis, the Future Land Use Map will provide the rationale for all future land use decisions when the City implements the Plan with land development regulations. The Future Land Use Map is at least as important as goals, objectives, or policies in setting the course for future development and redevelopment in Cocoa. The Future Land Use Map subordinates all but a small section of the wetlands in the City to residential and commercial land uses. The City could have extended effective protection to the wetlands by reserving them a place in Cocoa's future. First, the City could have shown them as a natural resource on the Future Land Use Map. Second, the City could have shown them as a conservation land use on the Future Land Use Map. The failure to take these steps was not inadvertent. The ORC pointed out both of these omissions. In the Proposed Plan, the City chose to designate the wetlands as open space, which provided some protection. Even so, DCA objected to the omission of a conservation land use category from the Future Land Use Map, as required by Rule 9J-5.006(4)(a). The City's response: "No . . . conservation . . .land use categories are applicable for the city." DCA also objected to the failure to show on the Future Land Use Map all required natural resources, which include wetlands under Rule 9J-5.006(4)(b). The City's response, which betrays a failure to comprehend the difference between a land use category and a natural resource: "Wetlands are not a designated future land use." These "explanations" are hardly consistent with overall protection of the wetlands or, specifically, with such provisions as are contained in Policy 7.2.1.2, which provides that the City will "[d]esignate conservation areas . . . as part of the future land use map in order to preserve open space and fulfill . . . [Conservation Element] objectives." As the Future Land Use Map presently stands, the City will soon adopt land development regulations consistent with the use of nearly all of its wetlands for low- and medium-density residential and commercial purposes. Following the adoption of these land development regulations, it will be too late to protect the wetlands as a system, which is how they function in providing drainage, habitat, and water filtration. Absent designation as a conservation area or open space, the wetlands can be preserved, at most, as isolated, poorly functioning remnants carved out of large-scale development plans. Wetlands are vital to the efforts of the City in the areas of drainage, flood control, and water quality. Two factors exacerbate the above- described inconsistencies in the Plan. First, the drainage system suffers from known deficiencies, and, at the same time, the City has failed to achieve certain significant objectives of its prior comprehensive plan with respect to drainage, flood control, and nonpoint sources of water pollution, such as stormwater runoff. Second, the data are inadequate concerning the City's drainage needs and capacity, as well as the precise role of the wetlands as to drainage and conservation. Although eliminating open space/wetlands as a land use category and declining to depict wetlands and floodplains as a natural resource, the City acknowledges several significant shortcomings in its drainage system and efforts to protect floodplains and wetlands. The City has failed to accomplish goals of earlier comprehensive plans to adopt a citywide Master Drainage Plan and obtain cost estimates for drainage improvements. It has even failed to adhere to statewide plans to control nonpoint sources of water pollution and prevent alteration of drainage patterns. A drainage improvement program, initiated between April and October, 1988, begins on an inauspicious note with the elimination of nearly all of the open space/wetlands from the Future Land Use Map. There are signs that the natural drainage system offered by local waterbodies and wetlands may be reaching or exceeding its capacity. There is clear evidence of at least isolated failures of vital parts of the natural drainage system. For example, Big Mud Lake has been exploited to its limit as a receptacle for untreated stormwater and is probably eutrophic. Suffering from untreated stormwater runoff, the Indian River has lost the vitality needed to maintain a harvestable shellfish population. The water quality of both of these waterbodies is not good. It is difficult to correlate Plan provisions protecting wetlands, ensuring adequate drainage, and preserving water quality with the nonrecognition of wetlands in the Future Land Use Map, especially in view of the City's admitted lack of knowledge concerning the needs and capacities of its drainage system. Besides repeated references in the Background Analysis to a lack of data concerning important aspects of the drainage system, the goals, objectives, and policies reflect the need for considerably more information in this area. For instance, Objectives 4.3.2 and 4.3.5 identify "needs assessments," "engineering studies," and "inspection programs" with respect to flooding and drainage that will be conducted in the future. Objective 4.3.7 ties in this work with the promise of the preparation of a surface water management plan, by October 1, 1995, to determine "existing deficiencies and needs," "cost and time requirements of corrective actions," and "sources of revenue." Policies 4.3.2.5, 4.3.5.2, 4.3.5.3, 4.3.7.1, and 4.3.7.2 also promise engineering studies to take place in the future in order to gather more information concerning drainage and the effect of stormwater on receiving waterbodies. The Background Analysis notes that no complete inventory of the drainage system has taken place for 20 years. The City requires these studies in order to determine what to do about a deficient drainage system for which no improvements are presently planned. Objective 4.3.7 acknowledges that the City has not included any improvements to its drainage or stormwater management systems for at least the initial five-year planning timeframe covered by the Plan. The Five Year Schedule of Improvements reflects no such expenditures, and the Background Analysis states that no such expenditures are planned for the next five years. As a result of the elimination of the open space/wetlands, many provisions concerning drainage and floodplain are no longer supported by the data and analysis in material respects. The data reveal the critical role of the wetlands and 100 year floodplain in the present performance of the drainage system. However, as noted above, the data also reveal that insufficient information is presently available upon which to justify the residential and commercial development of the wetlands, especially in the face of ongoing development in the 100 year floodplain. The broad promises of adequate drainage, floodplain protection, and maintenance or enhancement of the estuarine waters of the Indian River are inconsistent with the elimination of nearly all of the open space/wetlands from the Future Land Use Map and even the presence of significant development of wetlands and vacant floodplains. Under the circumstances, the Plan is internally inconsistent in its treatment of wetlands, drainage, and floodplains and, as a result of these inconsistencies, in its treatment of estuarine waters, the above-described habitats, and general water quality. The elimination from the Future Land Use Map of the open spaces hosting nearly all of the wetlands, coupled with the refusal to designate the wetlands and floodplains as natural resources on the map, are not merely inconsistent but mutually exclusive with Plan provisions protecting the above-named resources and ensuring adequate drainage. These Plan provisions lack support by the data and analysis contained in the Background Analysis. Under these conditions and in view of the failure of the City to allocate funds for improvements in the drainage system, including stormwater runoff, the Plan also lacks economic feasibility with respect to drainage and stormwater treatment. 2. Consistency with the Regional Plan Several "issues" identified in the plan of the Regional Planning Council are devoted to wetlands, drainage, and floodplains. Each of these issues contains a goal, background summary, and policies. Issue 38 of the regional plan deals with the protection of water resources. After acknowledging that stormwater runoff may be the largest surface water quality problem facing the region, Policies 38.3 and 38.5 urge local governments to divert the "first flush" of stormwater to retention facilities. The policies recommend that the local governments employ the most efficient and cost-effective pollutant control techniques available and wet detention facilities, including isolated wetlands. The goal of Issue 39 is to reduce dependence on structural means of floodplain management and optimize maintenance of water-dependent natural systems. The regional plan states that wetlands assimilate nutrients and trap sediment from stormwater, as well as physically retard the movement of surface water. Policy 39.7 advises that "[n]atural, isolated wetlands should be incorporated in surface water management systems as detention facilities, where . . . practical and appropriate, as an alternative to filling or excavating such wetlands." Policy 39.8 adds: "Floodplains which are relatively undisturbed should be protected and preserved " The goal of Issue 40 is the protection and preservation of the region's coastal areas. The regional plan defines the "coastal zone" as "within the watersheds of coastal estuaries," including the Indian River. The background summary recognizes the adverse effects of stormwater runoff on the Indian River, which is one of two major estuaries draining the region's coastal zone. These effects include the introduction of fresh water, which kills sensitive aquatic organisms like clams and oysters, and heavy metals and other pollutants. Policy 40.1 states in part: Proposed activities which would destroy or degrade the function of coastal wetlands . . . should not be permitted except where such activities are clearly in the public interest and there is no practical alternative which reduces or avoids impacts to wetlands. The redesignation of the four open spaces and the elimination of wetlands as a future land use is inconsistent with Policy 40.1. The use of the advisory word "should" in Policies 38.3, 38.5, 39.7, and 39.8 militates against a finding of inconsistency based upon a small number of specific provisions containing little more than recommendations. On balance, the Plan is not inconsistent with the policies of the regional plan. 3. Consistency with the State Plan Under the category of water resources, the state plan includes the following policies at Section 187.201(8)(b), Florida Statutes: 2. Identify and protect the functions of water recharge areas and provide incentive for their conservation. 4. Protect and use natural water systems in lieu of structural alternatives and restore modified systems. 8. Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. 10. Protect surface and groundwater quality and quantity in the state. 12. Eliminate the discharge of inadequately treated . . . stormwater runoff into the waters of the state. Under the category of natural systems and recreational lands, the state plan includes the following policies at Section 187.201(10)(b), Florida Statutes: Conserve . . . wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. The above-cited policies are clear and specific. On balance, the Plan's treatment of wetlands, drainage, and floodplains, as well as estuarine waters, fisheries, wildlife, and vegetation habitats, and water quality, is inconsistent with the above-described policies of the state plan. On balance, the Plan is incompatible with and fails to further the state plan. The Plan is therefore inconsistent with the state plan. Historic Resources Internal Consistency The Plan is internally consistent with respect to historic resources. No material inconsistency exists with respect to the identification and protection afforded historic resources by the Plan. All relevant provisions of the Plan are oriented toward the protection of historic resources. Objective 3.1.4 promises the protection and preservation of historically significant housing. Policy 3.1.4.7 states that the City will identify historically significant housing and structures annually. Policy 1.5.3 provides that the City will protect historic resources by the education of the public, consideration of the establishment of an historic district, and purchase of development rights. Objective 1.5 states that in one year all development must be consistent with the Plan's objectives for the protection of historic resources. The above-described objectives and policies are supported by the data and analysis. As revised, the Background Analysis contains a map entitled the Cocoa historic district and an inventory of the 72 properties depicted on the map. Rule 9J-5.006(4)(a)10., Florida Administrative Code, requires the inclusion in the Future Land Use Map of historically significant properties meriting protection and the boundaries of any historic district. In the responses to the ORC, the City states that "no . . . historic resource land use categories are applicable for the city." There is some conflict between the acknowledgement of an historic district and claim that no historic resource land use categories are applicable for the city. However, on balance, the inconsistency is immaterial. Unlike the situation with respect to wetlands, drainage, and floodplains, the Plan provisions protecting historic resources can be carried out without the designation of an historic district on the Future Land Use Map. 2. Consistency with the Regional Plan Two "issues" of the plan of the Regional Planning Council are devoted to historic resources. Issue 61 concerns access to cultural and historical resources. Issue 62 concerns the development of cultural and historical programs. Policy 61.1 states that historical resources "shall" be properly identified and evaluated and "should" be protected and preserved. Policy 61.3 states that local governments should adhere to the requirements of the Act regarding the inclusion of known historically sensitive resources in existing and future land use maps and the treatment of historical resources in the coastal management element, where applicable. Policy 61.5 provides that the local government "shall," "to the maximum practical extent," avoid or reduce adverse impacts of adjacent land uses on historical sites listed or eligible for listing on the Florida Master Site File or National Register of Historic Places. Policy 62.5 states that historic resources listed or eligible for listing on the Florida Master Site File or National Register of Historic Places "shall be taken into consideration" in all capital improvement projects. The Plan could have gone farther to promote the preservation of historic resources, especially from the adverse impact of nearby development and redevelopment. The most obvious way in which to achieve this goal would be through the designation of an historic land use category. However, on balance, the Plan is not inconsistent with the policies of the regional plan. 3. Consistency with the State Plan Under the category of cultural and historical resources, the state plan includes the following policies under Section 187.201(19)(b), Florida Statutes: 3. Ensure the identification, evaluation, and protection of archaeological folk heritage and historic resources properties of the state's diverse ethnic population. Encourage the rehabilitation and sensitive, adaptive use of historic properties through technical assistance and economic incentive programs. Ensure that historic resources are taken into consideration in the planning of all capital programs and projects at all level of government and that such programs and projects are carried out in a manner which recognizes the preservation of historic resources. The Plan's treatment of historic resources is consistent with the above-described policies of the state plan. Redevelopment Plan The omission of the redevelopment plan earlier adopted by the City, the failure to describe in the Plan redevelopment programs, activities, and land development regulations, and the exclusion from the Coastal Management Element of a redevelopment component did not render the Plan inconsistent internally or with the regional or state plans.
Conclusions Jurisdiction 86 Standing 88 The Act 91 Public Participation 91 Elements Required of All Plans 94 General 94 Future Land Use Element and Map 96 Public Facilities Element 97 Conservation Element 99 Housing Element 100 Capital Improvements Element 100 Coastal Management Element 101 Miscellaneous Elements 104 Determination of Noncompliance 105 General 105 Wetlands, Drainage, and Floodplains 106 Historic Resources 108 Remedial Action 108 RECOMMENDATION 108
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs determine that the Plan is not in compliance and, pursuant to Section 163.3184(9)(b), Florida Statutes, submit this Recommended Order to the Administration Commission for entry of an appropriate final order. RECOMMENDED in Tallahassee, Florida, this 2nd day of June, 1989. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-6338GM AND 89-0291GM Treatment Accorded the Proposed Findings of Petitioners Austin, Houston, and Dorn 1-16 Adopted. 17 Adopted in substance. However, Ms. Lawandales maintained in her office a color-coded map through much, if not all, of the planning process. 18-19 Rejected as subordinate. 20-21 Adopted. Rejected to the extent that the finding suggests that the Planning and Zoning Board did not intend that the City Council adopt the Plan. Although the Planning and Zoning Board did not formally recommend adoption by the City Council, the Board intended that the City Council adopt the Plan. Adopted. Rejected as recitation of testimony and subordinate. First four sentences adopted or adopted in substance. Remainder rejected as irrelevant. 26-27 Adopted in substance. 28-30 Rejected as subordinate. 31-33 Adopted in substance. Rejected as against the greater weight of the evidence. Adopted. Rejected as subordinate. Adopted in substance. 38-40 Rejected as irrelevant. 41 Rejected as subordinate. 42-43 Adopted. 44-46 Rejected as against the greater weight of the evidence. Adopted. Adopted in substance. 49-51 Rejected as irrelevant. 52 Rejected as against the greater weight of the evidence. 53-54 Rejected as recitation of testimony. 55 Adopted. 56-58 Rejected as irrelevant, except that the proposed finding that DCA found the Plan to be in compliance after using a balancing test is adopted in substance. Rejected as irrelevant. Rejected as against the greater weight of the evidence. 61-62 Adopted. Rejected as irrelevant. Adopted. 65-66 Rejected as irrelevant. 67-69 and 71 Rejected as legal argument. Rejected as against the greater weight of the evidence. Rejected as not finding of fact. 72-83 Rejected as irrelevant and against the greater weight of the evidence. 84-86 Rejected as irrelevant. Specific objectives and policies are insufficiently specific and, in certain respects, various Plan provisions represent nothing more than an intent to plan at a later date. However, such deficiencies must be evaluated in the context of all of the provisions of the entire Plan. After doing so, the only places at which the lack of specificity and deferral of planning are generate unlawful inconsistencies have been described in the recommended order. 87-91 Adopted or adopted in substance except that last sentence of Paragraph 91 is rejected as against the greater weight of the evidence. 92-93 Rejected as irrelevant. 94 Rejected as against the greater weight of the evidence. 95-98 Rejected as irrelevant. 99 and 111 Rejected as recitation of evidence. 100-110 and 112 Rejected as against the greater weight of evidence. 113 Rejected as not finding of fact as to the expertise of the witness. Rejected as against the greater weight of the evidence as to the inconsistency in the Plan's treatment of historic resources. Treatment Accorded Proposed Findings of Petitioners Hendry There are no rulings on the proposed findings of Petitioners Hendry due to the fact that it has been determined that they lack standing. Treatment Accorded Proposed Findings of DCA 1-4 Adopted. 5-18 Rejected as legal argument. 19-40 Adopted. 41 Rejected as irrelevant. 42-56 Adopted. 57 First sentence rejected as against the greater weight of the evidence. Second sentence adopted. 58-69 Adopted. 70 Adopted in substance. 71-72 Adopted. 73 First sentence adopted. Second sentence rejected as against the greater weight of the evidence. 74-75 Adopted in substance. Adopted. Rejected as legal argument. Treatment Accorded Proposed Findings of Cocoa I-IV Adopted or adopted in substance. Adopted except that Paragraphs B and C are rejected as legal argument. Adopted except that Paragraphs B.5, B.7, B.13, and B.14 are rejected as irrelevant and Paragraph B.8.f is rejected as against the greater weight of the evidence. Adopted in substance. Adopted or adopted in substance except that Paragraph G is rejected as against the greater weight of the evidence. COPIES FURNISHED: Judith E. Koons Attorney at Law Central Florida Legal Services, Inc. 1149 Lake Drive, Suite 201 Cocoa, FL 32922 David P. Hendry, pro se 17 Riverside Drive, #2 Cocoa, FL 32922 David J. Russ, Senior Attorney Rhoda P. Glasco, Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Bradly Roger Bettin Amari, Theriac, Roberts & Runyons 96 Willard Street, Suite 302 Cocoa, FL 32922 Thomas G. Pelham Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Laurence Keesey General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 ================================================================= AGENCY FINAL ORDERS ================================================================= STATE OF FLORIDA BEFORE THE ADMINISTRATION COMMISSION OMEGA AUSTIN, BEATRICE HOUSTON, and MARY DORN, Petitioners, vs. CASE NO. 89-31 DOAH CASE NO. 88-6338GM DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA, Respondents. / DAVID P. HENDRY, SR. and LOULA P. HENDRY, Petitioners, vs. CASE NO. 89-31 DOAH CASE NO. 88-0291GM DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF COCOA, Respondents. /
