The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
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. /
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, 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
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue Whether the amendment to the Future Land Use Map (FLUM) of the Putnam County Comprehensive Plan (Plan) adopted by Ordinance No. 2001-33 on December 11, 2001, which changes the future land use designation on the FLUM of an approximately 29-acre site from "Rural Residential" to "Commercial," is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the Petition for Administrative Hearing.
Findings Of Fact Petitioner, Frances Z. Parsons, lives at 215 Woodbury Trail, Satsuma, Putnam County, Florida, which is approximately one mile from the racetrack (on the site subject to the Amendment, see Findings of Fact 14 and 15) and has resided there for over seven years. Dr. Parsons understood at the time she purchased the house that a racetrack had been in existence, but was not operational and that no evidence of a racetrack could be seen from the road. A couple of years ago, Dr. Parsons noticed construction-type activity (e.g., earth-moving machines and erection of stadium-type bleachers and lights) occurring on the Property (racetrack site). Trees along the road were "bulldozed down," the site cleared, and a fence erected, after which, Dr. Parsons could see the racetrack from the road and racing commenced. Dr. Parsons also stated that the racetrack is operational and the noise level bothers her at her home. Dr. Parsons described Satsuma as "about a half a mile wide" and "fairly settled for a rural areas, but not for -- it's certainly not downtown." Dr. Parsons stated that the community character has not changed in the last five years. Dr. Parsons submitted oral or written comments and objections regarding the disputed Amendment during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment. Respondent, Putnam County, is a political subdivision of the State of Florida. Section 7.54, Florida Statutes. The County is the local government that adopted the Amendment. Respondent, Department of Community Affairs, is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, which includes a determination of whether comprehensive plan amendments are "in compliance." Intervenor, Florida Racing, is a private corporation and is the owner of the approximately 29 acres that are the subject of the challenged Amendment. Oral or written comments and regarding the disputed Amendment were submitted on behalf of Florida Racing during the period of time beginning with the transmittal hearing for the Amendment and ending with the adoption of the Amendment. Robert Joseph Potter is the Vice- President and Comptroller for Florida Racing. The Amendment In April 2001, Florida Racing submitted to the County an "Application for Amendment to the Putnam County Future Land Use Map" (Application). This Application requested that the land use designation for an approximately 29-acre site, consisting of five contiguous parcels under the same ownership, be changed from "Rural Residential" to "Commercial" on the FLUM. The Amendment was approved and transmitted to the Department for review under Section 163.3184(6)(a), Florida Statutes. The Department conducted this review, and raised no objections to the proposed FLUM change. On December 11, 2001, the Putnam County Board of County Commissioners (Board) adopted the proposed Amendment by Ordinance No. 2001-33. The Department timely caused to be published a Notice of Intent to find the Amendment "in compliance." On or about February 28, 2002, Petitioner filed a Petition for Administrative Hearing regarding the Department's Notice of Intent. This Petition alleges that the Amendment should be found not "in compliance" on several grounds. This challenge involves an existing development, a racetrack, on the Property. However, the Amendment would allow commercial development on the approximately 29 acres, subject to compliance with applicable Plan and Putnam County Zoning Ordinance (Zoning Ordnance) provisions. (In the Application, Florida Racing advised that proposed uses included a raceway, mobile home park, restaurant, and related amenities.) The Putnam County Speedway, the Surrounding Area, and the Review Process The approximately 29-acre site (five parcels total (Property)) subject to the Amendment is the site of an existing dirt automobile racetrack with bleachers, a press box, associated structures, and a masonry building/house. A commercial mini-warehouse building (personal storage) is located on the westernmost parcel. The racetrack is currently known as the "Putnam County Speedway" (Speedway). The Property is located on the west side of U.S. Highway 17 South between the Dunn's Creek Bridge and Buffalo Bluff Road (County Road 309B). The land surrounding the Property on the west, south, and east are designated as "Rural Residential" on the FLUM, the same as the Property prior to the proposed FLUM change. The land to the north is designated as "Conservation" on the FLUM and designated as vacant and wetlands as existing land uses. The zoning is "A." See Endnote 8. The land to the east is zoned "A" and is vacant as the existing land use. The land to the north and east of the Property is part of the 1,707-acre Murphy Creek Conservation area owned and managed by the St. Johns River Water Management District. The land to the west is zoned "C-2; A" and has an existing land use of commercial, but a future land use designation on the FLUM of Rural Residential. There is also additional land to the west of the Property within the Murphy Creek Conservation Area, a couple of residences and a vacant subdivision that has been determined not to be vested for development. There is a parcel of land to the west that is also owned by Florida Racing. The land to the south is zoned "C-4, C-1, C-2, [and] A" and is designated as vacant and commercial residential as existing land uses, and has a Rural Residential future land use designation on the FLUM. See Endnote 8. The land south of the Property across U.S. 17 includes an existing commercial establishment that includes a mini-warehouse building with outside storage of equipment and semi-trailers. (The mini- warehouse was rezoned in 1986.) Also, further south and west along U.S. 17, there are two or three additional commercial businesses. Mr. Spofford referred to this area as "a commercial cluster." However, most of the uses are nonconforming uses as to the existing Rural Residential future land use, and they would not be able to change to anything more intensive or that would have more adverse impacts on the surrounding residential uses. 1 Behind the mini-warehouse building are two residential neighborhoods with two subdivisions, one with 22 lots of approximately one acre in size and the other with 19 lots, with most of the lots being significantly larger than those in the former subdivision. Another residential area further west than the two subdivisions consists of approximately 40 parcels of land which have been subdivided over time and never platted. About four of these parcels on U.S. 17 are zoned for commercial use. There is also an existing aluminum business west with a C-4 zoning. It appears that almost all of these residential lots and parcels were created after the racetrack was established. The racetrack was in operation prior to the adoption of the Plan and zoning regulations. There is evidence that a racetrack existed before 1975, but has not remained in continuous use throughout that time. The record does not detail the history of the racetrack from its initial approval some time prior to 1975 to the date of the adoption of the Amendment. There is inference that the racetrack was not actively or frequently used in the mid-1990s. (It is noted in the County Staff Report that "[a]n aerial from the Florida Department of Transportation dated February 1972 shows the subject property cleared with what appears to be an oval dirt track. A 1964 aerial photograph did not show a racetrack on the subject property. A review of property appraisal data indicate the racetrack was established around the 1970 to 1972 period.") At some point after approximately 1995, and prior to the adoption of the Amendment, racing returned to the Speedway. An automobile racetrack is not an allowable or conforming use on land designated "Rural Residential." According to the Plan's Future Land Use Element (FLUE), "[t]he Rural Residential land use category depicted on the [FLUM] consists of water front development and developed areas interspersed within the active agricultural areas. These areas are somewhat isolated from the urban areas and rural centers. The development is situated primarily on large lots in the one to five-acre range and is either a homestead or a second home for people who seek the quiet enjoyment of living in a rural environment." As a nonconforming use, the Speedway (racetrack) is subject to County land use and zoning provisions that limit or restrict the ability to undertake improvements. For example, according to the Putnam County Zoning Ordinance 88-1, as amended by Ordinance 91-31 (collectively referred to as County Zoning Ordinance or Zoning Ordinance), the racetrack, as a nonconforming use, is restricted from being extended or enlarged, and repair of its structures is limited. For example, work may be done in any 12-consecutive month period on ordinary repairs, or on repair or replacement of 15 percent of the current assessed value of the particular structure if a nonconforming structure is involved, provided the cubic content of the structure as it existed on the date it became nonconforming shall not be increased in size.2 The intent of these nonconforming use restrictions is to "permit these nonconformities to continue until they are removed, but not to encourage their survival," and it is intended that such uses would become extinguished over time as a result of being prevented from expanding or extensively renovating their structures. See, e.g., County Zoning Ordinance, Sections 2-701-2-708. On March 20, 1998, John Salmons, the Putnam County Planner, advised Tim Keyser, Attorney, that the nonconforming status of the Speedway was still in effect. Mr. Keyser was also informed, in part, that the "Putnam County Speedway may continue to operate under the provisions of the nonconforming use section of the Zoning Ordinance." At the time Florida Racing purchased the racetrack in the 1990's (the specific date is uncertain), some of the existing structures had deteriorated and were in need of repair and/or replacement. To accommodate the renewed activity in racing and the need to upgrade the racetrack, seating at the racetrack was rearranged, new seating was added for children, and a second access driveway was installed north of the existing driveway. In 2000, in a series of letters to Mr. Potter, County staff raised concerns regarding plans to significantly upgrade the racetrack. On September 26, 2000, Mr. Salmons advised Mr. Potter "that the current zoning status for the [S]atsuma racetrack is Nonconforming. As a nonconforming use, the zoning ordinance acknowledges their existence, but does not encourage their survival. As such, there are very strict rules for repairing or maintaining a nonconforming use." Mr. Salmons also informed Mr. Potter that the Property had been designated "Rural Residential" on the County's FLUM at some point subsequent to the racetrack's initial operation. (The racetrack on the Property pre-dates the Plan, including the FLUM land use categories, including "Rural Residential.") Mr. Salmons understood at the time that Mr. Potter had plans to "significantly upgrade the racetrack" and advised Mr. Potter that he "would not be able to proceed with [his] plans." In order to upgrade, Mr. Salmons advised Mr. Potter that he would need to have the Property rezoned and given the current land use designation for the Property, Mr. Potter would need to obtain an amendment to the FLUM to change the Property's land use designation from "Rural Residential" to "Commercial." However, Mr. Salmons further advised that without doing an analysis of the proposed change, he suspected that "it would be difficult for staff to support such a change" "based upon what Future Land Use patterns surround the property." Finally, Mr. Potter was told that he could continue operations "as they were in the past." But, he could not "add seating, restaurants, structures, pave the track or do much more than do some minor maintenance at this time." On December 27, 2000, Mr. Salmons sent Mr. Potter another letter similar in content to the September 26, 2000, letter. Apparently, Mr. Salmons was advised by Mr. Potter that he had already spent in excess of the 15 percent allowed in the Zoning Ordinance. Mr. Potter was advised to stop making improvements until the land use designation was changed and rezoning approved. (There have not been any legal proceedings initiated to determine whether the 15 percent threshold was crossed.) On April 16, 2001, Florida Racing submitted the Amendment Application and requested the FLUM change suggested by County staff for the Property.3 (Florida Racing also requested rezoning of the Property which is not the subject of this proceeding.) Deficiencies in the applications were noted and additional information requested. The County's FLUE of the Plan was adopted on December 12, 1991, and amended on August 24, 1993. Policy A.1.9.3.A.5. of the FLUE describes the "Commercial" land use category and provides in part: The Commercial land use areas depicted on the [FLUM] are current locations of commercial development in the County with expansion areas provided and are intended to serve as the primary commercial locations for the next 10 years. Secondary commercial locations are provided for in the policies for development in the urban service, urban reserve and rural center land use categories. Commercial land uses include activities that are predominantly associated with the sale, rental, and distribution of products or performance of service. Future development shall be allowed as follows: The maximum permitted floor area for a site shall be 1:1. The maximum permitted impervious surface shall be 70 percent of the site.4 The Staff Report dated July 11, 2001, was prepared by Mr. Spofford, A.I.C.P., a senior planner with Putnam County. As noted in the Staff Report, the purpose of the land use "change is to bring a non-conforming automobile racetrack into compliance with the" Plan. Mr. Spofford testified that the scope of the Staff Report was broader than examining the racetrack. However, the primary focus of the Staff Report is the Property being used as a racetrack and not another commercial use. It was determined that the automobile racetrack is a commercial attraction because it attracts spectators for a fee and further noted: As such, the use is not appropriate for the Agriculture I and II and Rural Residential future land use categories. The site and surrounding area do not meet the intent and description of an Urban Service or Urban Reserve future land use category because urban type infrastructure does not currently exist and is not likely within the next 10 years. This means that the use is most appropriate for a Commercial future land use category. The subject site meets the intent of the Commercial category because it is a current location of a commercial- recreational-entertainment type use. Mr. Spofford explained that the data to support the FLUM change is set forth in the Staff Report. (Mr. Salmons, Mr. Spofford's superior, believed the data in the Staff Report was adequate to support the FLUM change.) The Application was reviewed for consistency with the Plan and various provisions of Rule 9J-5. Staff made the following recommendation: The existing automobile racetrack must go through a two step process to become compliant with the Comprehensive Plan and Zoning Ordinance. First, this proposed map amendment must be approved and adopted by the County, and found to be in compliance by the Florida Department of Community Affairs (DCA). The purpose of this public hearing is to determine whether or not the proposed map amendment should be transmitted for state agency review. Therefore, the Planning Commission must recommend to either transmit the map amendment as proposed, transmit the amendment with recommended changes or not to transmit the map amendment. If the proposed map amendment is transmitted, then state agencies will review the proposed map amendment and return comments to the County in October. The County would then likely hold public hearing[s] to consider actual adoption of the map amendment in November and December. When these public hearings are held to consider the map amendment, a rezoning application would simultaneously be reviewed. A rezoning to Planned Unit Development is a negotiable process where the County can gain greater control of the use. If the proposed map amendment is not transmitted, the a rezoning will not be necessary and the automobile racetrack will continue to be a non-conforming use. As a non-conforming use, code enforcement action will be taken to have the improvements removed that consist of an expenditure greater than 15 percent of the assessed value of the structure(s), with the exception of the permitted work that includes the press box and new lighting. All other improvements could be subject to removal. However, as a non-conforming use, the racetrack would be allowed to continue operation so long as it does not expand. This means that the County would not have much control over the days and hours of operation and other critical site design issues. Although this is not the ideal location for a racetrack, the fact is it has existed on the subject property and has been determined to be a bona fide non- conforming use. Research of County records and other known available sources of information indicates that the racetrack was established prior to the residential development in close proximity south of the subject site. The request for a large-scale comprehensive plan map amendment from Rural Residential to Commercial appears to be consistent with the Comprehensive Plan. Therefore, staff recommends that the proposed map amendment be transmitted to the Florida Department of Community Affairs with a request for their review. On July 11, 2001, the Putnam County Planning Commission unanimously approved the FLUM change after receiving comments. On July 24, 2001, the Board held a public hearing to consider the Amendment and approved same. The FLUM Amendment was transmitted to the Department. Pursuant to the Department's review of the Amendment, a Memorandum dated October 4, 2001, was prepared by Russell Paul Darst, a planner with the Department, and routed to James Stansbury and Mike Sherman, the section administrator, and ultimately to Charles Gauthier, A.I.C.P., and Bureau Chief, who issued the Department's Notice of Intent. Mr. Darst, as well as others at the Department, had no objections to the Amendment. In the Memorandum, Mr. Darst concluded: "The proposed FLUM change for this 29-acre property is from Rural Residential to Commercial. The property has been used for a race track since about 1970. The amendment would change the FLUM designation for the property to reflect the actual and long-standing use of the property. This use is not allowed in the Rural Residential FLUM category." This was the crux of the data and analysis relied on by Mr. Stansbury of the Department. The Memorandum also reflected the Northeast Florida Regional Planning Council comment: "Since the raceway already exists, the land use change will not create any additional impacts to regional resources. The proposed land use change may even protect regional resources in the future by granting the County the ability to regulate the property under the most appropriate zoning classification." Dr. Darst stated that in reviewing a FLUM amendment for the Department, it would be typical to examine the existing use of the land before making his recommendation. In reviewing the County's proposed FLUM change, Mr. Darst believed, based on his discussions with County staff, that the racetrack was not expected to expand (and not that it could not) and that the change in the FLUM would give the County "part of a means of gaining effective control over [the operation of the racetrack]." He reiterated that the FLUM change would reflect the actual and long-standing use of the Property as a racetrack. On December 11, 2001, during the public hearing, the Board approved the FLUM Amendment and transmitted the approval package to the Department. On February 13, 2002, the Department had published its Notice of Intent to find the Amendment "in compliance." The Challenges Petitioner alleges that the Amendment is not "in compliance" on several grounds: first, there is no "need" for additional land to be designated for a commercial use in Putnam County; second, the Amendment and proposed land use is not compatible with the community character and surrounding land uses; and, third, the Amendment is inconsistent with provisions of the Plan, Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Need The term "need" as used in growth management refers to the amount of land required to accommodate anticipated growth. Section 163.3177(6)(a), Florida Statutes. Local governments are to analyze by acreage how much land within each land use category5 they need to accommodate projected growth through the planning timeframe, and then base their comprehensive plan on this estimate. Rule 9J-5.006(2)(c), Florida Administrative Code. The calculus of need is rather simple and, for that reason, inexact. The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning timeframe applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the planning timeframe and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need. There is no allocation ratio adopted by statute or rule by which all comprehensive plans and plan amendments are judged. There is evidence that the County has more vacant land designated "Commercial" than is needed to accommodate its projected population.6 There is data and analysis which indicates an excess of vacant commercially-designation land on a County-wide basis. For example, Florida Racing Exhibit 1 is a copy of data and analysis in support of the FLUE. This data and analysis indicates that at least as of 1991, and projected to 2001, the County has an over-allocation of need for commercial land of about two times or, stated otherwise, the County has a 2:1 allocation ratio for commercial. This data is reflected in Petitioner's Exhibit P. Mr. Spofford explained that the population data was compiled prior to 1991, has not been updated, is not meant to provide a "detailed analysis," and it is only useful for providing the acreage for each planning district. The population for each planning district is then compared to the acreage to determine the allocation of commercial to service that population. From a very general standpoint, Mr. Spofford analyzed the FLUM Amendment application in light of whether more commercial acreage was needed. Mr. Spofford explained that because the Property was so close to the edge of the planning district, it was difficult to compare the commercial and population need. However, Mr. Spofford opined that the Planning District 1 (which includes the Property) and the one to the northeast are not over-allocated for commercial use. He also opined that, generally, "more is needed, if -- especially if you're looking out 20, ten or twenty years." Petitioner did not come forward with any independent or up-to-date analysis to demonstrate the County is in fact over-allocated for commercial land use. On the other hand, Fred Goodrow, A.I.C.P., opined that the County was over-allocated regarding the need for more commercial in light of the data previously mentioned. The existence and extent of any commercial over- allocation in Putnam County is, at best, fairly debatable. Nonconforming Use, Inconsistency, and Incompatibility Petitioner asserts that the Amendment is not "in compliance" because it fails to eliminate or reduce a nonconforming use in violation of Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(3)(b)3. and (3)(c)2., Florida Administrative Code. Petitioner also argues that the Commercial land use designation which would attach to the Property is incompatible with the character of the community and adjacent land uses. Petitioner also contends that the Amendment is inconsistent with several Plan provisions. Section 163.3177(2), Florida Statutes; Rule 9J-5.005(5), Florida Administrative Code. Objective A.1.3 of the FLUE requires that "[u]pon plan adoption, Putnam County shall act to eliminate or reduce uses inconsistent with the uses identified on the [FLUM] and associated adopted Goals, Objectives and Policies through implementing the following policies." Policy A.1.3.1 of the FLUE requires revision of the County's Land Development Regulations, specifically the County Zoning Code, "to reinforce its current provisions regarding the elimination of nonconforming land uses by expanding the definition of nonconforming land uses to include all uses which are inconsistent with the Future Land Use Map 2001 or cannot be made compatible with adjacent land uses. The requirements of this provision shall be enforced upon application for building permits to repair or improve such structures."7 The nonconforming use provisions of the Zoning Ordinance apply to and implement the FLUM. An automobile racetrack is not an appropriate use to put in a Rural Residential future land use category. In theory, one purpose of this land use designation is to protect residents from the intrusion of noisy racetracks which can impact an adjacent residential user. The dispute in this case is clearly framed. Petitioner contends that because the Property was designated "Rural Residential" when the County's Plan was adopted, the Speedway (racetrack) is a nonconforming use which must be restricted and eventually eliminated. Petitioner argues that the County lacks the authority to amend its FLUM to make the Speedway a conforming use under the Plan. Respondents and Florida Racing contend that the County has the authority to amend the FLUM, and acted properly in this instance in adopting the Amendment. The County has the authority to amend its FLUM, including the designations of properties as long as the designations are consistent with other provisions of the Plan and applicable provisions of Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. The persuasive evidence indicates that an automobile racetrack is an allowable use in the Commercial future land use category as opposed to the Rural Residential category. If the Amendment is approved, the raceway would no longer be considered a nonconforming use for Plan purposes, and could undertake improvements without the restrictions that accompany such a use, subject to compliance with applicable zoning requirements. Stated otherwise, the racetrack could expand without complying with the nonconforming use restrictions, subject to compliance with the nonconforming standards in the Zoning Ordinance because the Property would remain a nonconforming use under the Zoning Ordinance. (Of course, a zoning change for the Property, as contemplated in the County's Staff Report, would create different considerations as noted below.) The Property is currently zoned C-2 and A, with the bulk of the property zoned agriculture.8 If the Amendment is approved, the next step would be for the Property owner to apply for a zoning change, e.g., special exception, or pursue a planned unit development. Under either scenario, the County could impose conditions on the use of the Property such as the amelioration of off-site impacts. On the other hand, if the racetrack continued as a nonconforming use, the persuasive evidence indicates that the County would be limited in establishing any further limitation on the use of the Property, such as duration and frequency of use, e.g., hours of operation and other site design issues. There is no persuasive support for the proposition that all subsequent Boards of County Commissioners are bound in every instance by the decision of one Board regarding the land use of a particular parcel. There is some evidence that leads to at least a fair inference that the designation of the racetrack site as "Rural Residential" may have been in error. The data and analysis that was used to support the original designation indicates the area including the racetrack as being "woodlands." The County planner involved in the preparation of the Plan, including the FLUM, testified that he did not know there was a racetrack on the land designated "woodlands." The FLUM was based "to a great extent" on this data, and very well may have designated the Property as "Rural Residential" by "oversight" based on the incorrect representation of the area as woodlands. Several other commercial uses exist within the immediate vicinity of the site of the Property, are similarly depicted as "woodlands" by the referenced data, and are designated "Rural Residential" on the FLUM. These parcels, too, may be nonconforming by error, and not by some deliberate choice. Whether the original designation of the Property as nonconforming was erroneous or not, the true question is what is the proper standard by which to weigh a FLUM amendment when it affects a site on which there exists a nonconforming use. Neither Chapter 163, Part II, Florida Statutes, nor Rule 9J-5, Florida Administrative Code, directs the Department to review a FLUM amendment involving a nonconforming use under some specific provisions. Such an amendment must be subjected to the same standards applicable to any FLUM amendment. The Property has been used intermittently as a racetrack for approximately 30 years. A racetrack has operated on the Property as a nonconforming use, and has the right to continue do so under applicable County land use and zoning regulations. The racetrack is, in fact, eligible to expand by 15 percent under these regulations. The County would not have some absolute right to cease racetrack operations if it remained nonconforming, and would not have unlimited authority to address noise and traffic concerns. The uncontradicted testimony is that it is likely that the racetrack would continue to operate even if it remained a nonconforming use. The County does not lose any authority to address noise and traffic by virtue of the Amendment. Credible evidence in the record indicates that the County may actually have a better ability to address these concerns should the racetrack be made a conforming use. Nevertheless, the fact that the racetrack, operated as the Speedway, currently exists in the area as a nonconforming use does not mean that the use is automatically compatible with the adjacent land uses and surrounding area or is otherwise consistent with the character of the community. The nonconforming use designation only means that the racetrack can continue to operate, not that the racetrack can achieve a potentially more useful and elevated land use status by virtue of being an existing raceway and commercial use. Otherwise, an existing nonconforming use would have greater rights to a new and more permissive land use designation than a new entrant into the marketplace. Stated otherwise, the FLUM Amendment, if approved, will further and encourage the nonconforming use rather than its eventual elimination as contemplated by the Plan and Zoning Ordinance. In this case, it is beyond fair debate that if a new automobile racetrack were proposed on the Property today, it would be inconsistent with the existing residential and conservation areas surrounding the property, notwithstanding the existence of several commercial properties in the vicinity. The only reasonable conclusion to be reached is that that the Amendment is not "in compliance."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Amendment adopted by Putnam County in Ordinance No. 2001- 33 is not "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003.
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
The Issue The issue for determination is whether Seminole Raceway, as proposed in Charles and Linda Wimberlys' Site and Development Plan and approved with conditions by the Leon County Development Review Committee (DRC), is consistent with the requirements of the 2010 Tallahassee-Leon County Comprehensive Plan (Comprehensive Plan) and is a permissible land use under applicable provisions of Chapter 10, Leon County Code (the Code).
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP 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.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall 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 this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 3rd day of September, 2010, 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 September, 2010.
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 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.
