The Issue Miami-Dade County's Krome Avenue is a two-lane, undivided highway. In October 2002, the Board of County Commissioners for Miami-Dade County (the Commission) passed Ordinance No. 02-198. The ordinance adopted an amendment composed of several parts to the County's Comprehensive Development Master Plan (CDMP). Among the parts of the amendment were changes and additions to the CDMP initiated by an application ("Application No. 16") that relate to Krome Avenue (the "Plan Amendment.")1 Quite detailed, the Plan Amendment, in essence, makes changes that re-designate a substantial segment of Krome Avenue from 2 lanes to 4 lanes. The Plan Amendment's additions add all of Krome Avenue as a Major Route among the CDMP's designated evacuation routes in the year 2015, create new policies related to approval of use of land in the vicinity of Krome Avenue designated as a four-lane roadway and create a new policy related to planned capacity improvement to the roadway, including widening to four lanes. The issue in this growth management case is whether the Plan Amendment is "in compliance" as defined in the Local Government Comprehensive Planning and Land Development Regulation Act. Preliminary Statement Under cover of a letter dated January 17, 2003, the Department of Community Affairs (the "Department" or "DCA") forwarded to the Division of Administrative Hearings (DOAH) a petition that requested a formal administrative hearing. The petition was "forwarded [to DOAH] for assignment of an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes." The petition was filed by the Sierra Club and John S. Wade, Jr., against the Department and Miami-Dade County (County) after the Department had issued a notice of intent to find the Plan Amendment transmitted by the County "in compliance" with the Local Government Comprehensive Planning and Land Development Regulation Act (the "Act" or the "Growth Management Act") contained in Part II of Chapter 163, Florida Statutes. The petition alleges that the Plan Amendment is "not in compliance as defined in section 163.3184(1), Fla. Stat., because it is inconsistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, the state comprehensive plan, with appropriate strategic regional policy plan, and with Chapter 9J-5, FAC." Petition for Formal Administrative Hearing, p. 4, paragraph 16. For relief, the petition requests, inter alia, that the administrative law judge enter a recommended order finding that the Plan Amendment is not in compliance. Upon receipt of the petition, DOAH assigned it Case No. 03-0150GM. Charles A. Stampelos was designated as the Administrative Law Judge to conduct the proceedings. A Notice of Hearing was issued that set the case for final hearing in March and April 2003. In February, the case was continued until September 2003 and in July 2003, the case was re-assigned to the undersigned. Prior to final hearing, two petitions to intervene were filed: the first, by Monroe County in support of Petitioners2; the second, in support by the City of Homestead in support of DCA and Miami-Dade County.3 Both were granted subject to proof of standing. Prior to hearing, a number of unopposed motions for continuances were granted. In addition, three motions were filed by the County: one for summary final order, a second to relinquish jurisdiction and issue a recommended order and the third a motion in limine. The three motions were denied. The case proceeded to final hearing in September 2005 in Miami, Florida. The evidentiary portion of the final hearing opened with the introduction and admission of most of the joint exhibits admitted over the course of the hearing. All in all, 60 joint exhibits were offered and admitted. They are marked as Joint Exhibit Nos. 1-17, 19-27, 29-31, 34-44, 46-49, 51-57, and 59-67. Petitioners commenced the presentation of their case-in- chief first. They presented the testimony of seven witnesses: Dickson Eazala, Comprehensive Planner with Miami-Dade County; Kay Bismark, an expert in the Redland area real estate market; John S. Wade, Jr., Petitioner; Rodrick Jude, Chair of the Sierra Club's Miami Group Executive Committee; Thomas Van Lent, an expert in the field of southern Everglades hydrology and restoration; Charles Pattison, Executive Director and Planner for One Thousand Friends of Florida and an expert in comprehensive planning and compliance under the Growth Management Act; and, Diane O'Quinn, Director of Miami-Dade County's Department of Planning and Zoning, an expert in the field of comprehensive planning. Petitioners offered 13 exhibits, marked as Petitioners' Exhibit Nos. 9-13, 17-19, 21-23, and 29-30. Petitioners' Nos. 18 and 23 were rejected and then proffered by petitioners. The rest of the exhibits offered by Petitioners were admitted. Intervenor Monroe County presented the testimony of Timothy McGarry, Director of Growth Management in Monroe County and an expert in land planning. Monroe County offered two exhibits, marked as Monroe County Exhibit Nos. 1 and 2; both were admitted. Miami-Dade County presented the testimony of Thomas Pelham, an expert in the fields of comprehensive planning and review of plans and plan amendments for compliance with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 9J-5; Alice Bravo, District Planning and Environmental Management Engineer for the Florida Department of Transportation (FDOT); and Jonathan Lord, Emergency Management Coordinator with Miami- Dade County's Office of Emergency Management. Miami-Dade County offered two exhibits, marked as Miami-Dade County Exhibit Nos. 1 and 2; both were admitted. The Department of Community Affairs presented the testimony of Paul Darst, Senior Planner in the Department, an expert in the fields of comprehensive planning and the review of comprehensive plan amendments with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 97-5. The Department offered one exhibit, marked as DCA Exhibit No. 1. It was admitted. After a number of motions granted to extend the time for the filing of proposed orders, the parties filed timely proposed recommended orders on February 3, 2006. This Recommended Order follows.
Findings Of Fact Krome Avenue Less than a mile south of downtown Florida City, at a "fork in the road" for a driver headed north, Krome Avenue branches off of US 1 (South Dixie Highway). It heads in a northwesterly direction for a short distance, turns due north through Florida City and the City of Homestead and then bolts northward across a considerable stretch of western Miami-Dade County. With only a slight directional variation at an intersection with Kendall Drive, the road continues its due north run until its last several miles when it turns northeasterly before it merges with US 27 (Okeechobee Road) just shy of the Broward County line. Over its 37-mile span, there are a number of significant features of the two-lane undivided roadway. Known also as 177th Avenue, it serves as the main street for the City of Homestead, a municipality hard-hit by Hurricane Andrew in 1992. It treads along the edge of the Everglades Protection Area. In the south, Krome Avenue's locus varies in distances relatively close to Everglades National Park. In the case of Water Conservation Area 3 (WCA-3) to the north, the roadway abuts the Everglades sector's politically-drawn east border. For most of its length north of US 41 or the Tamiami Trail it fragments wetlands designated as "Environmental Protection" with WCA-3 to the west and an extension of the historical Everglades to the east. It also traverses the Redland, an expansive tract of prime agricultural land packed between suburbs and the fabled River of Grass. Krome Avenue's cross of the Redland renders it a route essential to agricultural interests in the area. The roadway is used to transport harvested row crops and as a means to get produce from fruit and vegetable groves to market in the face of competitive pressure from Mexico and Central America, competition generated by the North American Free Trade Agreement (NAFTA) since its adoption during the Clinton Administration. Lately, Krome Avenue has been a shipping lane for bush, flower and tree products from recently-arisen container nurseries dedicated to ornamental horticulture. The burgeoning nursery business supports the landscaping needs of the real estate and building industries in a county that has experienced explosive residential and commercial growth recently due in substantial part to stimulation from a financing environment of low interest rates that has persisted for more than half a decade. Due to Krome Avenue's proximity to the Everglades, any proposed and adopted amendments to the CDMP or local zoning action that might promote improvement of the roadway draws attention of some involved in the Comprehensive Everglades Restoration Project (the "Project" or "CERP"). The Project, called for by Congress to be completed by the U.S. Army Corps of Engineers in a joint effort with the state and the South Florida Water Management District (SFWMD) involves the expenditure of prodigious governmental funds and utilization of ground-breaking science. Of considerable interest to many communities, residential, commercial, environmental, agricultural, and scientific, to name some of the more obvious, CERP is the subject of government involvement at all levels. Of concern is anticipation that improvement to Krome Avenue supported by CDMP amendments threatens to contribute to rises in the value of property that is being sought or may be sought for governmental acquisition to further CERP at a time when there are various forces in play to reduce funding for the Project. A Significant Roadway Krome Avenue's is Miami-Dade County's westernmost roadway of statewide significance. The CDMP recognizes this status: it classifies the roadway as a state principal arterial roadway. The state likewise recognizes Krome Avenue's significance. FDOT has designated Krome Avenue a corridor in the Florida Intrastate Highway System (FIHS)4 developed to address requirements for a National Highway System imposed by the Congress' Intermodal Surface Transportation and Efficiency Act (ISTEA) of 1991. The Plan Amendment makes it is a hurricane evacuation route for residents and the transient population of south Miami-Dade County and provides an alternative evacuation route to Monroe County and the Florida Keys, an area sensitive to effects generated by residential development in south Florida. Despite its import to local, state and national transportation systems and the recognition of that import in the last several decades, the roadway has remained an undivided rural two-lane highway. Its configuration and the transportation demands that have increased in recent years have led to concerns about safety on much of Krome Avenue. Krome Avenue Safety The 33-mile segment of the corridor between Southwest 296th Street and US 27 exhibits a vehicular crash rate that is consistently higher than the statewide average for highways with the same characteristics. A significant portion of those crashes have resulted in fatalities or severe injuries. Between 1995 and 1999, there were 966 total vehicular crashes, of which 106 resulted in severe injuries and 16 resulted in fatalities. The number of crashes resulting in fatalities increased significantly after 1999. Between January 2000 and July 2002, there were an additional 26 crashes resulting in fatalities. Between 1995 and 2002, a total of 59 people died on Krome Avenue in the 42 crashes involving fatalities. Fatal crashes occurred in four segments of Krome Avenue as indicated here: Road Segment Crashes Deaths Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 16 26 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 3 4 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 16 21 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 7 8 Of the 42 fatal crashes between 1995 and 2002, 15 were the result of head-on collisions. Another 15 were the result of centerline crossovers, where a vehicle traveling in one direction crossed over the roadway centerline and struck a vehicle traveling in the opposite direction. Crossover collisions differ from head-on collisions in that the point of impact is usually at an angle. Head-on collisions and crossover collisions on Krome Avenue are due at least in part to its configuration as a two- lane, undivided road. Because crashes occurred throughout the 33-mile corridor and not just at intersections, independent transportation engineering consultants retained by FDOT to analyze conditions on Krome Avenue recommended that a safety improvement plan should be considered for the entire corridor. (See paragraphs 18. to 28., below.) Daily traffic volumes on Krome Avenue increased steadily between 1995 and 2001, growing at a rate of over 10 percent per year. In 2001, weekday traffic volumes were approximately 14,000 to 15,000 vehicles between S.W. 8th Street and S.W. 296th Street and approximately 9,000 vehicles between US 27 and Southwest 8th Street, as illustrated in the following table: Road Segment Avg. Daily Traffic 2001 Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 14,100 Long-range traffic projections indicate that by the year 2020, weekday traffic volumes will be between 18,000 and 21,000 vehicles south of S.W. 8th Street, and approximately 12,000 vehicles to the north. No projection suggests that traffic will decrease. Indeed, traffic models for Miami-Dade County have systematically underestimated actual traffic volume. Many intersections on Krome Avenue operate with unacceptable levels of delay, which affect drivers’ overall travel times. These conditions are reasonably expected to degrade over the coming decades. The increased traffic volume and attendant diminution in Level of Service mean that a large percentage of motorists on Krome Avenue are not able to travel at desired speeds. Slow- moving vehicles impede drivers’ forward progress, but because Krome Avenue is a two-lane road with a high volume of traffic traveling in both directions, drivers are not able to pass those vehicles. The result is an increase in driver frustration. The number of head-on crashes on Krome Avenue indicates that many drivers, as they get frustrated, are more willing to attempt risky passing maneuvers. Because passing generally involves higher speeds, crashes that result from risky passing maneuvers are more likely to result in fatalities or severe injuries. The problems associated with driver frustration are further exacerbated by the increasing volume of large trucks on Krome Avenue. The number of trucks as a percentage of overall traffic varies between 26 percent and 32 percent of daily traffic. Trucks contribute to delays at intersections and, thus, to overall delays in travel times. Trucks have difficulty turning off of Krome Avenue, thereby encouraging vehicles to attempt to pass them; those vehicles in turn pose a hazard to oncoming traffic, because they are obscured by the truck. Finally, the high percentage of trucks on the road contributes to an increase in the severity of crashes involving trucks. In general, because of the difference in size and speed between trucks and automobiles, the two types of vehicles should be separated as much as possible especially by a median separating lanes of traffic proceeding in opposing directions. The 1999 Krome Avenue Action Plan In 1999, FDOT produced the Krome Avenue Action Plan (the "Action Plan.") The Action Plan followed by nine years the Florida Legislature's adoption of the FIHS of which Krome Avenue is a part. FIHS standards require that FIHS roadways be designated as controlled access facilities and that they be configured with a minimum of four lanes divided by a restrictive median (the "FIHS Directive"). Attempts to bring Krome Avenue into compliance with the FIHS Directive met with difficulties described in the Executive Summary of the Action Plan: To begin the long-range planning process required to achieve this directive, the Florida Department of Transportation (FDOT) programmed various phases of improvement for Krome Avenue in their tentative work program. This work program was adopted by the Metropolitan Planning Organization (MPO) as the Miami-Dade County Transportation Improvement Plan (TIP) and provides funding for a more detailed study of the corridor. This action set off a string of controversial meetings and hearings regarding the consistency of the TIP, the Miami-Dade County Comprehensive Development Master Plan (CDMP), and local government comprehensive plans. In response to the controversy, the MPO modified their TIP to eliminate consideration of Krome Avenue as a four (4) lane divided roadway with landscaped medians throughout the facility. In February 1997, FDOT began analyzing the Krome Avenue corridor and developing the Krome Avenue Action Plan. During the public involvement process, several alternatives were developed to preserve Krome Avenue as a two (2) lane roadway. The results of sixteen (16) months of public involvement activities and engineering analysis identified the need to preserve the rural character of the corridor while providing safety and operational enhancements to the existing roadway. Joint Exhibit 19, pgs. i-ii, (emphasis supplied). In light of difficulty in reaching "consensus and public acceptance for any improvement alternative," id., p. ii, the Action Plan was conducted "as a precursor to the requisite Project Development and Environment (PD&E) Study to avoid the expenditure of the large sums of public funds in a study effort, with no resulting project." Id. The Action Plan required that Krome Avenue be maintained as a two-lane road, and it recommended improvements, such as adding additional lanes and traffic signals at intersections; implementing an access management plan to limit the number of driveways and cross-street connections to Krome Avenue and to restrict turns off of the roadway; enhancing road shoulders; providing passing zones; adding pedestrian and bicycle facilities; improving pavement markings and signs; and widening the areas from the edge of the roadway that are free of obstructions, known as clear zones, to prevent crashes that result from drivers running off of the road. The Action Plan was premised on traffic volume projections for the year 2010 that were exceeded or were nearly exceeded by the traffic actually observed in 2001, nine years before the final projection. In addition, the amount of traffic observed in 2001 was close to the amount of traffic projected for 2020: Road Segment 2010 KAAP Forecast 2020 KAAP Forecast 2001 Avg. Daily Traffic Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,349 10,475 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,713 16,486 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,713 16,486 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 12,730- 16,351 13,486- 18321 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 11,921- 16,917 12,629- 17,921 14,100 Furthermore, after the Action Plan, that is, after 1999, the number of fatal crashes increased significantly. The increase was noted in an "Existing Level of Service Study" prepared for District VI of FDOT by Kittelson & Associates, Inc., (the "Kittelson Report"). The Kittelson Reports In 2002, FDOT retained Kittelson & Associates (“Kittelson”), independent transportation planning and engineering consultants, to report on Krome Avenue. Kittelson produced two reports in August and October of that year (the "First Kittleson Report" and the "Second Kittleson Report"). The First Kittleson Report is entitled “SR 997/Krome Avenue Existing Level of Service Study” and the Second Kittleson Report is entitled “SR 997/Krome Avenue Future Conditions Analysis and Mitigation Measures.” See Joint Exhibits 15 and 49. The 1999 Action Plan, prepared in the wake of public controversy and concerns regarding consistency between the CDMP and the FIHS Directive, directly addressed those concerns and reached a compromise in the conflict. As stated in the last paragraph of its Executive Summary: Although the improvements in the Krome Avenue Action Plan do not result in a facility that meets all FHS standards, the Action Plan represents the best compromise among a wide range of diverse interests including hundreds of interested residents, agency staff, and elected officials. Joint Exhibit 19 (emphasis supplied). Unlike the Action Plan, however, Kittelson's focus, as stated in the opening sentence of its Executive Summary in the First Kittleson Report, was squarely on level of service and safety issues: "The purpose of this study is to perform a detailed Level of Service and safety analysis for existing conditions along the SR 997/Krome Avenue (177th Avenue) corridor." Joint Exhibit 15, pgs. II and 2. In the Second Kittleson Report, Kittleson summarizes its finding with regard to the increase in the number and severity of crashes on Krome Avenue: . . . [I]t is clear that traffic volume growth and increasing levels of congestion have contributed to driver frustration and attempts to make risky passing maneuvers on Krome Avenue. This has probably led to an increase in the number and severity of crashes in the corridor. Joint Exhibit 49, p. E-V. The Second Kittleson Report recognized that short of widening to a divided, four-lane roadway, there are a number of congestion and safety measures that could be considered to enhance mobility and safety, some of which were recommended by the 1999 Action Plan and some that were in addition to that plan. But the Second Kittleson Report argued for consideration of widening Krome Avenue to a four-lane divided roadway: . . . [T]here are four factors that, in combination, argue for the consideration of widening Krome Avenue to a four lane divided section: The fact that Krome Avenue is on the Florida Intrastate Highway System and the requirement that it be designated as controlled-access facility with a cross-section that provides for at least four lanes with a restrictive median. The likelihood that the high percentage of trucks that use the entire length of the corridor Id. contribute to an increase in crash severity when trucks are involved in crashes. The increasing levels of roadway and intersection congestion and the difficulty in mitigating these levels of congestion short of providing for additional north-south through movement capacity. The crash experience on Krome Avenue exceeds the statewide average for this type of roadway. The high number of crashes and the increase in crash severity (as demonstrated by an increase in the number of fatal crashes largely due to head-on and angle collisions) that likely would be mitigated by physically separating the directions of travel with a median. In a section of the Second Kittelson Report under the heading of "Availability of Passing" Kittelson details the problems with passing on a two-lane undivided Krome Avenue, the contribution these problems make to head-on collisions and the high speeds at which passing maneuvers occur. The report concludes that several measures should be considered to counter safety issues associated with passing maneuvers, among them, the addition of passing lanes and a median separated two-lane section. The first countermeasure recommended, however, is the creation of a four-lane section: A four-lane section eliminates the need for drivers to judge the adequacy of gaps in opposing traffic and use the opposing lane to perform the passing maneuver. The length and placement of a four-lane section can vary (for example, a four-lane section can be located between intersections or on a specific stretch of roadway). It is noted that in areas where access to roadside properties exists or is planned, a four-lane section should be median separated and that left-turn lanes need to be provided to minimize crossover crashes and rear-end crashes. A properly designed four-lane section can be expected to nearly eliminate head-on crashes (a crash type that often results in severe injuries or fatalities) and reduce the total number of roadway crashes associated with passing maneuvers. Joint Exhibit 49 (emphasis supplied). The Second Kittleson Report notes that "[w]hen considering potential countermeasures, it is important to note that one treatment does not have to be applied to the entire corridor." Joint Exhibit 49, p. 36. The reason is that there are a number of issues including safety that should be examined. The Second Kittelson Report reaches the conclusion, therefore, that "[a]n alternative analysis that considers issues such as available right-of-way, environmental impacts, safety benefits, operational benefits, and community concerns should be completed in order to decide what the preferred treatment should be." Id. In light of four factors stated above and specifically, the solution to head-on collisions offered by upgrading a two-lane undivided highway to a four-lane divided highway, Kittelson in the Second Kittleson Report recommends, "that a Project Development and Environment process be conducted to consider the range of solutions for improving the operational and safety characteristics of Krome Avenue." Joint Exhibit 49, p. E-V. The Kittleson reports, therefore, went a step beyond the 1999 Action Plan. They call for improvement of some or all of Krome Avenue to a four-lane section with a restrictive median as one of the solutions, among a range of solutions, to safety on Krome Avenue. Before such an improvement can take place, however, FDOT must conduct a Project Development and Environment Study (a "PD&E Study.") FDOT's Position FDOT is solely responsible for funding and building improvements to Krome Avenue. FDOT has neither a rule nor an un-codified policy that it will not consider funding or building an improvement to a road under its jurisdiction when improvement would be inconsistent with an applicable local comprehensive plan. Nevertheless, as made clear in the 1999 Krome Avenue Action Plan, FDOT is plainly sensitive to undertaking expensive studies necessary to roadway improvements that are inconsistent with local comprehensive plans. A PD&E Study is resource-intensive in time, money and FDOT commitment. Inconsistency with a local comprehensive plan is not a prescription for action on roadway improvement; rather it tends to produce a situation laden with complication as FDOT's District Engineer testified at hearing: (Tr. 768) Q. . . .[I]f this plan amendment which authorizes the widening, on the comprehensive plan, to four lanes, if this amendment is rejected, what happens next? A. . . . [W]e would have to stop and consider the circumstances, the situation, a lot of different factors before we decided whether or not to proceed with the ... study. FDOT has long been aware of safety problems on Krome Avenue. In the wake of the Kittelson Reports commissioned after a rapid rise in life-threatening traffic accidents on Krome suspected to be due, at least in part, to its configuration and a strong recommendation that widening and median placement be considered among a range of improvements, a PD&E Study was not commenced. As of the time of hearing a PD&E Study had still not been commenced. Evacuation Route In considering the data related to safety on Krome Avenue, including the Kittelson Report, the Commission considered Krome Avenue's status as an evacuation route. Since the early 1990s, Miami-Dade County has experienced significant population growth along its southern and western fringes, between the Broward County line and the Homestead/Florida City area. This growth is reasonably expected to continue. Because Krome Avenue is one of only three continuous north-south routes in Miami-Dade County, it is important to persons evacuating the City of Homestead and other surrounding areas in southern and western Miami-Dade County and Monroe County. Krome Avenue is an evacuation route not only for hurricanes but also for “all hazards,” such as a meltdown at the Turkey Point Nuclear Power Plan. Nonetheless, it is not designated by Monroe County as part of the official evacuation route. Krome Avenue had been used to evacuate southern Miami- Dade County during Hurricane Andrew. It had also been used to transport relief personnel, vehicles, and supplies in the aftermath of that storm. Given the growth of Miami-Dade County’s population, the other north-south routes, the Florida Turnpike and US 1, would be extremely congested if all of southern and western Miami-Dade County evacuated—much more so if Monroe County evacuated at the same time. Moreover, it is not only people who live in mandatory evacuation zones who evacuate during an emergency: an increasing number of people evacuate voluntarily. Additional capacity on Krome Avenue is necessary to accommodate both mandatory and voluntary evacuees. Miami-Dade County’s Comprehensive Emergency Management Plan, prepared by the Miami-Dade Office of Emergency Management (“OEM”) in October 2000 and adopted by the County Commission, currently designates Krome Avenue as a primary north-south evacuation route for the Florida Keys and south Miami-Dade, in the event of a hurricane or an emergency related to the Turkey Point Nuclear Power Plant. Designated evacuation routes are roads that OEM encourages people to use in an emergency, and they are selected based on recognizability, carrying capacity, and where they end. To maintain consistency between the Emergency Management Plan and the CDMP, the Plan Amendment amends the map of “Designated Evacuation Routes-2015” in the Transportation Element to add Krome Avenue as a “Major Route.” Monroe County’s Director of Growth Management, Timothy McGarry, opined that Krome Avenue was not necessary to accommodate evacuation from Monroe County, because the Florida Turnpike provided adequate capacity. But McGarry based his opinion on the amount of Monroe County’s population that has historically evacuated, which is 50 percent. McGarry would not say that the Florida Turnpike would provide adequate capacity if 100 percent of Monroe County’s population were to evacuate. Moreover, McGarry conceded that, in formulating his opinion, he had not considered what would happen if both Monroe County and southern Miami-Dade County evacuated at the same time. A four-lane Krome Avenue would increase the capacity of Miami-Dade County’s Primary Evacuation Route System and facilitate relief efforts to south Miami-Dade and Monroe County. Moreover, if residents of both Miami-Dade County and Monroe County are evacuated, the additional capacity would allow OEM to direct Miami-Dade residents to Krome Avenue, thus opening the Turnpike and US 1, which provide the only exit routes from the Florida Keys, for residents and tourists evacuating Monroe County. The CDMP and the UDB Miami-Dade County is one of the only counties in the State of Florida to have an “urban development boundary" (UDB.) In the Land Use Element of the Adopted Components of the Year 2000 and 2010 CDMP dated December, 1988, the UDB is described: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2000 from areas where it should not occur. * * * The CDMP seeks to facilitate the necessary service improvements within the UDB to accommodate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. Joint Exhibit 56-A, pgs. I-35 and I-36. Thomas Pelham, Miami- Dade County's expert in comprehensive planning, explained the difference between a UDB and an Urban Services Area: The urban service area concept is the local government's designation of the areas in which it . . . will provide urban services. The urban growth boundary is a technique by which a line is drawn beyond which urban development will not be allowed. Tr. 662-3. With regard to the UDB, the parties stipulated, The CDMP currently contains policies to discourage urban sprawl and urban development in areas outside the Urban Development Boundary (the "UDB"), particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Pre-hearing Stipulation, p. 14, para. 13. The UDB appears on the CDMP's Adopted 2005 and 2015 Land Use Plan map ("LUP map") as a broken line that on its northern end commences on the border with Broward County. It runs primarily north-to-south along the breadth of developed Miami-Dade County, within several miles of the Everglades and environmentally protected lands, and through the Redland to a point southwest of Florida City and Homestead where it turns sharply east for five to six miles and then heads in a primarily northeast direction around Homestead Regional Airport to meet the coast along Biscayne Bay near Black Point Park. Other counties have at most an “urban service area” or “urban service boundary,” which merely designates the areas in which the government will provide urban services. In contrast to the UDB, an urban service area does not prohibit urban development outside its boundary. A comprehensive plan with an urban services area typically provides only that the landowner, rather than the government, is responsible for providing urban services outside the urban services area. Miami-Dade County had the UDB before the Florida legislature adopted the laws requiring comprehensive plans, in 1985. The UDB thus predates the CDMP, which was adopted in 1988. Neither Chapter 163 nor Rule 9J-5 requires an urban development boundary. In providing a UDB in the CDMP, therefore, Miami-Dade County is making use of a technique to discourage urban sprawl that exceeds the requirements of Chapter 163 and Rule 9J-5. Miami-Dade County has rarely expanded the UDB in areas not designated as Urban Expansion Areas (“UEAs”). In the last 10 years, the UDB has only been expanded once. That amendment, for the Beacon Lakes project, approved an industrial use where rock mining and cement manufacturing had already taken place. All along its path, Krome Avenue is outside (or to the west of) the UDB. The CDMP does not specify any procedures for applications to move the UDB, beyond the requirements applicable to plan amendments generally. Instead, the procedures for moving the UDB are set forth in Section 2-116.1 of the Code of Miami-Dade County Florida (the “County Code”). That section requires an affirmative vote from two-thirds of the total membership of the County Commission. There are no restrictions on how frequently the County Code may be amended. Changes to the County Code may be accomplished by ordinance at any legislative meeting of the County Commission. The entire process can take as little as three months. Changes to the CDMP, by contrast, are subject to more rigorous procedures: applications may only be filed twice a year; they require review by the Regional Planning Council and DCA; they require two public hearings before the Planning Advisory Board; they require two public hearings before the County Commission; and the entire process takes one year. In its “Statement of Legislative Intent,” the CDMP provides: 3. The CDMP is intended to set general guidelines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. * * * 6. The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Pre-Hearing Stipulation, para. 14. The CDMP currently contains substantive policies to discourage urban sprawl and urban development in areas outside the UDB, particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Land Use Objective 1 provides: The location and configuration of Miami-Dade County’s urban growth through the year 2015 shall emphasize concentration and intensification of development around centers of activity, development of well designated communities containing a variety of uses, housing types and public services, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Pre-Hearing Stipulation, para. 15. Land Use Element Policy 1P provides: Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. Pre-Hearing Stipulation, para. 16. Land Use Element Policy 1Q provides: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism related to the area’s agricultural and natural resource base including Everglades and Biscayne National Parks. Pre-Hearing Stipulation, para. 17. Land Use Element Policy 2B provides: Priority in the provision of services and facilities and the allocation of financial resource for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non-urban areas. Pre-Hearing Stipulation, para. 18. Land Use Element Policy 8C provides: Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to promote agriculture as a viable economic use of land in Miami-Dade County. Pre-Hearing Stipulation, para. 19. Land Use Element Policy 8F provides: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objective and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period of headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective 7, herein. Pre-Hearing Stipulation, para. 20. Land Use Element Policy 8G provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of the EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy 7F. The adequacy of non-residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. Pre-Hearing Stipulation, para. 21. Land Use Element Policy 8H provides: When considering land areas to add to the UDB, after demonstrating that a countywide need exists, The following areas shall not be considered: The Northwest Wellfield Protection Area located west of the Turnpike Extension between Okeechobee Road and NW 25 Street, and the West Wellfield Protection Area west of SW 157 Avenue between SW 8 Street and SW 42 Street; Water Conservation Areas, Biscayne Aquifer Recharge Areas, and Everglades Buffer Areas designated by the South Florida Water Management District; The Redland area south of Eureka Drive; and The following areas shall be avoided: Future Wetlands delineated in the Conservation and Land Use Element; Land designated Agriculture on the Land Use Plan map; Category 1 hurricane evacuation areas east of the Atlantic Coastal Ridge; and The following areas shall be given priority for inclusion, subject to conformance with Policy 8G and the foregoing provision of this policy: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Land contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Pre-Hearing Stipulation, para. 22. Interpretation of the LUP Map: Policy of the Land Use Element provides: Urban Development Boundary (p. I-45) The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2005 from areas where it should not occur Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process . . . . [U]rban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Transportation Element. . . . Concepts and Limitations of the Land Use Plan Map: Coordinated-Managed Growth (p. I- 59) [C]ritical in achieving the desired pattern of development is the adherence to the 2005 Urban Development Boundary (UDB) and 2015 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that the actions of one single- purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. Concepts and Limitations of the Land Use Plan Map: Ultimate Development Area (p. I- 64) The 2005 and 2015 Land Use Plan map identified the areas that will be urbanized within those time frames. As indicated throughout this Plan, these are the areas of the County where financial resources should be directed from the maintenance and construction of urban infrastructure and services. Growth of Dade County, however, is not projected to cease after the year 2015. Therefore, prudent long-term planning for infrastructure may need to anticipate locations for possible future extension. For example, it may be desirable to reserve rights-of-way in certain growth corridors as well as on section, half-section, and quarter-section lines, well in advance of need so that opportunities to eventually provide necessary roadways are not irrevocably lost. It is difficult to specify where and how much of Dade County’s total area may ultimately be converted to urban development. . . . It is reasonably safe to assume, however, that the areas least suitable for urban development today will remain least suitable. Theses areas include the remaining high-quality coastal and Everglades wetland areas in the County, and the Northwest Wellfield protection area. The areas more appropriate for, and more likely to experience sustained urban pressure are the heavily impacted, partially drained wetlands in the Biscayne-Snake Creek and Bird-Trail Canal Basins, the agricultural areas of southwestern and southeast Dade, and the impacted wetlands south of Homestead and Florida City. When the need for additional urban expansion is demonstrated after the year 2015, such expansion should be carefully managed to minimize the loss of agricultural land and to maximize the economic life of that valuable industry. Accordingly, urban expansion after the year 2015 in the South Dade area should be managed to progress westerly from the Metrozoo area to Krome Avenue north of Eureka Drive, and on the west side of the US 1 corridor southerly to Homestead only when the clear need is demonstrated. . . . Pre-Hearing Stipulation, para. 23 (emphasis supplied). Of particular import to this proceeding, Policy 4C of the Traffic Circulation Subelement requires avoidance of improvements which encourage development in certain areas. With regard to development in Agriculture and Open Land areas, transportation improvements which encourage development are to be avoided but avoidance is subject to an exception, "those improvements necessary for public safety and which serve the localized needs of these non-urbanized areas." Areas designated Environmental Protection, on the other hand, are to be "particularly avoided." Policy 4C of the Traffic Circulation Subelement provides: Dade County’s priority in the construction, maintenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan map. Second priority in transportation allocations shall support the staged development of the urbanizing portions of the County within the Urban Expansion Area. Transportation improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. Areas designated Environmental Protection shall be particularly avoided. Pre-Hearing Stipulation, para. 24 (emphasis supplied). Policy 1A of the Water and Sewer Sub-element provides: The area within the Urban Development Boundary of the Land Use Plan map shall have the first priority in providing potable water supply, and sanitary sewage disposal, and for committing financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Land, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health, safety or welfare. Pre-Hearing Stipulation, para. 25. Policy 1H of the Water and Sewer Sub-element provides: New water supply or wastewater collection lines should not be extended to provide service to land within the areas designated Agriculture, Open Land or Environmental Protection on the Land Use Plan map. New water or wastewater lines to serve land within these areas should be approved or required only where the absence of the facility would result in an imminent threat to public health or safety. The use of on- site facilities should be given priority consideration. In all cases, facilities should be sized only to service the area where the imminent threat would exist, to avoid inducing additional urban development in the area. This policy will not preclude federal, State or local long-range planning or design of facilities to serve areas within the Urban Development Boundary (UDB) or Urban Expansion Area (UEA). Public health and safety determinations will be made in accordance with Chapter 24 of the Code of Miami-Dade County (Environmental Protection) and Section 2-103.20, et. seq., (Water Supply for Fire Suppression) Code of Miami-Dade County. Pre-Hearing Stipulation, para. 26. Policy 5A of the Capital Improvements Element provides: As a priority, previously approved development will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority for investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs. Pre-Hearing Stipulation, para. 27. The Plan Amendment The Plan Amendment consists of several components grouped as follows: a. changes in Plan designations in the Land Use Element on the LUP map and in the Traffic Circulation Subelement that increase the lanes on a segment of Krome Avenue from 2 lanes to 4 lanes (the "Lane Increase Changes"); b. changes in the Transportation Element's Traffic Circulation Subelement that add Krome Avenue as a Major Route in the Designated Evacuation Routes 2015 (the "Evacuation Route Change"); c. addition of new policies that require among other matters a super-majority of the County Commission for zoning action or amendment to the CDMP that would approve certain uses within one mile of Krome Avenue designated for improvement to four lanes (the "New Super-Majority Policies"); and d. addition of a new policy that requires adoption of a binding access control plan for the Krome Avenue corridor before capacity improvements to Krome Avenue outside the UDB (the "New Binding Access Control Plan Policy"). The parties stipulated to the following narrative description of the Plan Amendment: 31. As part of the October 2002 Plan Amendment, the County Commission approved Application 16. Application 16 made the following changes to the CDMP: Changed the Plan designations of Krome Avenue (SR 997/SW 177 Avenue), between US 27 and SW 296 Street, as follows: In the Land Use Element, on the Land Use Plan map change from Minor Roadway (2 lanes) to Major Roadway (3 or more lanes); and in the Transportation Element, Traffic Circulation Subelement, Figure 1, “Planned Year 2015 Roadway Network”: Change from 2 lanes to 4 lanes. In the Transportation Element, Traffic Circulation Subelement, added Krome Avenue between US 27 and US 1 to Figure 7, Designated Evacuation Routes 2015, as a Major Route. Added the following new Policy 3F to the Land Use Element: Any zoning action or amendment to the CDMP that would approve any use other than direct agricultural production and permitted residential uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinate use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. The term “direct agricultural production” includes crops, livestock, 15 nurseries, groves, packing houses, and barns but not uses such as houses of worship, schools, sale of produce and other items, and outdoor storage of vehicles. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3G to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than limestone quarrying, seasonal agriculture or permitted residential use in an area designated as Open Land on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3H to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than seasonal agricultural use in the Dade-Broward Levee Basin or permitted residential use in an area designated as Environmental Protection, on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 4E to the Traffic Circulation Subelement: Notwithstanding the designation of Krome Avenue as a Major Roadway on the CDMP Land Use Plan Map or as a four-lane roadway in the Traffic Circulation Subelement, no construction associated with the four- laning, or other capacity improvement, of Krome Avenue outside the Urban Development Boundary shall occur until FDOT has prepared, and the Board of County Commissioners has adopted, a detailed binding access control plan for the Krome Avenue corridor. This plan should emphasize access to properties fronting Krome Avenue primarily through alternative street locations. Pre-hearing Stipulation, para. 28. Land Uses Near Krome Avenue North of S.W. 56th Street, the bulk of land uses around Krome Avenue are Environmental Protection and Open Land with almost all of the adjacent land north of US 41 designated Environmental Protection. South of S.W. 56th Street the land is designated as Agriculture and Environmental Protection except for near Homestead and Florida City where the land use designations are Residential Communities (of mostly low density), Business and Office and some Industrial and Office. Krome Avenue currently provides the western boundary of an Urban Expansion Area (UEA) for the year 2015 between what would be an extension of S.W. 42nd Street and an extension of S.W. 112th Street. The CDMP directs that urban infrastructure and services be planned for eventual extension into the UEA, as far west as Krome Avenue, sometime between 2005 and 2015. In addition, the area two miles east of Krome Avenue, between S.W. 12th Street and S.W. 8th Street, is designated as UEA. What the Plan Amendment Does Not Do Of particular import to this proceeding, given the case presented by Petitioners, is what the Plan Amendment does not do. The Krome Avenue Amendment does not change any land uses. It does not alter the existing Conservation Element or any other CDMP policies that protect environmental resources. It does not add Krome Avenue to the Capital Improvements Element or provide funds for or authorize construction on Krome Avenue. Furthermore, any future attempt to change land use in the vicinity of Krome Avenue, if anything, will be more difficult because of the New Supermajority Land Use Policies contained in the Plan Amendment. The New Supermajority Policies work in tandem with the substantive policies to provide the standards for land use changes within one mile of Krome Avenue designated for improvement to four lanes. For example, existing Land Use Policy 8H states that the areas surrounding Krome Avenue, particularly areas west of the road, be avoided or not be considered if Miami-Dade County proposes expanding the UDB. Because the only procedural requirements for moving the UDB are currently contained in the County Code, which may be amended from time to time, adding the Supermajority Requirement to the CDMP with its more rigorous amendment procedures, tends to make it more difficult to change the planning and zoning designations on a property. The Lane Increase Changes There are serious safety problems that rise to the level of literally "life-or-death" on the segment of Krome Avenue subject to the Lane Increase Changes. The Lane Increase Changes do not mandate that the portion of Krome Avenue that they govern be four-laned. They simply allow four-laning if a PD&E Study is conducted by FDOT that determines four-laning is the best way to address the safety issues. While the Lane Increase Changes give a designation to the Changed Segment of Krome Avenue that would allow it to be four-laned, it will not be four-laned until it is determined on the basis of further study in the future that four-laning is the best alternative for improving the Changed Segment. The Lane Increase Changes, without regard to the New Supermajority Policies, are supported by adequate data and analysis. This data and analysis consists of studies and commentaries by FDOT, including the Kittelson Reports and the 1999 Action Plan. The Lane Increase Changes do not authorize construction of improvements to the road. They do not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." (Tr. 671) It is only actual development that would cause potential urban sprawl that might threaten agriculture or pose a danger to the Everglades. Before any development could take place, additional amendments would have to be made to the CDMP. Those amendments would be subject to the same process as the Plan Amendment has undergone and is now undergoing. In other words, the potential dangers feared by Petitioners could not materialize without adoption of additional plan amendments. Furthermore, the fears held by Petitioners are mitigated by the New Supermajority Policies. DCA Review The entire package of amendments in the second round of 2002 for the CDMP, which included Application 16, is referred to by DCA as "Miami-Dade County 02-2 Proposed Comprehensive Plan Amendments." See Joint Exhibit 11. Initial staff review of Miami-Dade County 02-2 culminated in a August 5, 2002 memorandum (the "Pre-ORC Staff Analysis Memorandum") to the Chief of the Bureau of Comprehensive Planning from a Senior Planner. The staff analysis is summarized in the memorandum: Staff has identified two potential ... objections with the Krome Avenue (FIHS facility) segment[5] amendment concerning internal inconsistency with the CDMP objectives and policies, and lack of supporting data and analysis addressing public safety. Joint Exhibit 11, p. 1. With regard to the "safety" data and analysis, staff wrote, "the amendment is not supported with adequate data and analysis which demonstrates consistency with the CDMP policies which allow for capacity improvements outside the Urban Development Boundary (UDB) only upon showing the amendment is 'necessary' to address public safety." Id., p. 3. The CDMP objectives and policies were summarized as follows: The corridor runs through Agriculture and Open Land use categories. In order to promote the agricultural industry, the CDMP clearly states, under its Agriculture land use category, facilities which support or encourage urban development are not allowed in the amendment area. The subject segment of the roadway currently runs north-south through an extensive area of active farmlands, except the northern portion between US 41 (SW 8th Street) and SW 56th Street which is designated as Open Land in the CDMP's FLUM. The CDMP also states that Open Land designated land, is not simply surplus undeveloped land, but rather land that is Id. intended to serve for production of agriculture, limestone extraction, resource- based activity such as production of potable water supplies or other compatible utility and public facilities or rural residential development at no more than 1 du/5 acres. The amendment area is also a prime candidate for conservation, enhancement of environmental character, and for acquisition by federal, state, regional, county or private institutions that would manage the areas for optimal environmental functions. Beyond SW 8th Street to Okeechobee Road is the environmental and wellfield protection areas through which the upper Krome Avenue runs. One mile west of the segment is the Everglades National Park Expansion Area (Attachment 3) which is authorized by the Congress for federal acquisition. Agriculture is the existing primary use of the corridor area as shown in (Attachment 4). The concern with regard to inconsistency was expressed in this way: Id. Staff is concerned that expansion of Krome Avenue will increase market pressure in the western MSA's within the UDB, resulting in the premature extension of the UDB. Staff concurs with County staff that the widening will cause appraisals to increase property values in the corridor, causing farmers to sell agricultural lands for urbanization. It is also likely that property values will increase on environmental/open lands which should be maintained for water management, resource protection and other functions related to Everglades protection. Within two weeks of the Pre-ORC Staff Analysis Memorandum, DCA issued the ORC Report. In a cover letter, Bureau Chief Charles Gautier wrote the following synopsis of the ORC: The Department is concerned that the widening of Krome Avenue or a segment of it will undermine the County's ability to control urban sprawl and impacts to agriculture and environmental lands. While we share concerns regarding accidents and fatalities on Krome Avenue, we recommend that the County fully evaluate all possible alternatives designs, including implementation of the FDOT 1999 Krome Avenue Action Plan, before considering the four lane option to address public safety. Department staff is available to assist your staff as they formulate the County's responses to the objections and recommendations for the amendment. Joint Exhibit 20, 1st page of the cover letter dated August 16, 2002. Miami-Dade County responded to the ORC Report by clarifying its interpretations of provisions in the CDMP, particularly LUE 2B, and by providing additional data and analysis. Department staff struggled with the response, but ultimately concluded that Miami-Dade County's interpretations were defensible and recommended the Plan Amendment be found in compliance. See Joint Exhibit 16. On December 18, 2002, the Department wrote to Miami- Dade County that it had determined the Plan Amendment to be in compliance. Accordingly, a Notice of Intent to determine the Plan Amendment in compliance was published in the Miami Herald on December 20, 2002. The Petition After the issuance of the notice of intent by the state land planning agency (DCA) to find the Plan Amendment in compliance, this proceeding was initiated by the filing of a petition as allowed by Section 163.3184(9)(a), Florida Statutes. The petition was filed by Sierra Club and John S. Wade and joined by Intervenor, Monroe County. The issues presented by the petition that remain after the parties entered a preheating stipulation filed with DOAH are stated in a section of the stipulation entitled, "D. Issues of Law and Fact That Remain to Litigated." Material Issues of Ultimate Fact While not exhaustive, the parties agree that the following are the major issues of disputed fact: Whether the amendment is consistent with legal provisions concerning the discouragement of urban sprawl. Whether the amendments will have a material impact on the agricultural industry in south Miami-Dade County. Whether the amendments will have a material impact on the restoration of the Everglades. Whether the plan amendments is necessary to address public health and safety and serve localized needs. Issues of Law Whether the Plan Amendment is in compliance. Whether the Plan Amendment maintains the Plan's internal consistency and reflects the plans goals, objectives and policies, per 163.3177(2) Rule 9J-5.005(5)(a)&(b), F.A.C., specifically in regard to: Transportation Element Policy 4C. FLUE Policy 2B. FLUE Policy 8F. Transportation Element(TE) Policy 4C. FLUE Policy 3B. Whether the Plan Amendment is supported by data analysis as required by Sections 163.3177(6)(a), (8), and (10)(e), Fla. Stat. and Rules 9J-5.005(2) and (5), F.A.C. Whether the Plan Amendment is inconsistent with Fla. Admin. Code Rules 9J- 5.006(5)(g)(1)-(10) and (13), and Rules 9J- 5.006(5)(h), (i), and (j)(6), (18), and (19) because it fails to coordinate future land uses with the appropriate topography and soil conditions, and the availability of facilities and services; ensure the protection of natural resources; and discourage the proliferation of urban sprawl. Whether the Plan Amendment is inconsistent with Rule 9J-5.019(3)(d), (f), (i) and 9J-5.019(4). Whether the Plan Amendment is inconsistent with Rule 9J-5.005(6), FAC because it fails to establish meaningful and predictable standards for the use and development of land and fails to provide meaningful guidelines for the content of more detailed land development and use regulations that would prevent the urban sprawl and impacts to agricultural, rural and environmentally sensitive lands caused by the four-laning of Krome Avenue. Whether the Plan Amendment is inconsistent with Sections 163.3177(6)(a)- (g), (8) & (10(e), Fla. Stat. Whether the Plan Amendment is inconsistent with the Strategic Regional Policy Plan of the South Florida Regional Planning Council as a whole, and directly conflicts specifically with: Strategic Regional Goal 2.1 (1) Policy 2.1.4 (2) Policy 2.1.10 (3) Policy 2.1.14 Strategic Regional Policy 2.2.1 Strategic Regional Policy 3.9.1 Whether the Plan Amendment is inconsistent with the State Comprehensive Plan as a whole, including: Goal 15 (a) (LAND USE); Policy 15(b)1; Policy 15(b)6 Goal 16(a) & (b)(URBAN DOWNTOWN REVITALIZATION) Goal 17(a) (PUBLIC FACILITIES); Policy 17(b)1 Goal 19(a); Policy(b)12 Goal 22(a) & (b) (AGRICULTURE) Pre-hearing Stipulation, Section D. The Parties The Sierra Club is a national organization with close to 800,000 members. Qualified to do business in the State of Florida, 30,000 or so of the Sierra Club's members are in its Florida Chapter. About 2800 Sierra Club members live and work in Miami-Dade County where the Miami Group of the Florida Chapter of the Sierra Club holds regular meetings. The Miami Group is a "wholly owned subsidiary . . of the national organization." (Tr. 235) "[A]s opposed to some other organizations which may have separate chapters . . . separately . . . incorporated in their local jurisdictions," the Miami Group, the Florida Chapter and the national organization of the Sierra Club "speak with one voice . . . ." Id. Organized to explore, enjoy and protect particular places around the globe, to practice and promote the responsible use of the earth's ecosystem, to educate and enlist humanity to protect and restore the quality of the natural and human environment and to use all lawful means to carry out these objectives, the Sierra Club has taken numerous actions in support of restoration and preservation of the Everglades. The Sierra Club has been involved on many occasions in growth management issues in different parts of the state. It is particularly concerned about public policy issues that affect Miami-Dade County, including increased urban sprawl, the loss of agricultural lands, clean water, clean air, open space, parks and recreation and the associated loss of quality of life. A substantial number of Sierra Club members use areas surrounding Krome Avenue to recreate and regularly traverse the area on their way to the Everglades, Biscayne National Park, and Florida Keys National Marine Sanctuary as well as using the area for biking, hiking, bird watching, and picking tropical fruits and vegetables. A substantial number of members also regularly use and enjoy Everglades National Park and Florida Bay and use Krome Avenue en route to these destinations. Representation of its members' interests in administrative proceedings to enforce growth management laws is within the corporate purposes of Sierra Club. In keeping with its purposes, the Sierra Club commented to the Board of County Commissioners regarding the Plan Amendment between the time of its transmittal to DCA and its adoption. John S. Wade, Jr., operates an interior foliage or a "container" nursery business at 20925 S.W. 187th Avenue "in the center of the Redlands area," tr. 210, one mile due west of Krome Avenue. Mr. Wade has been extensively involved in county planning issues for many years. A member of the Sierra Club, he is also an individual Petitioner in this proceeding. Mr. Wade commented to the Board of County Commissioners regarding the Plan Amendment between the time of transmittal to DCA and their adoption. Mr. Wade believes that the Plan Amendment affects his interests in that it will have a negative impact on wildlife which he enjoys and on his nursery business. The parties stipulated that Mr. Wade is an "affected person" with standing to bring and maintain this action under Section 163.3184, Florida Statutes. Roads and Land Use: General Impact Chapter 163, Florida Statutes, establishes an important link between planned road infrastructure and future land use decisions. The future transportation map, furthermore, plays a critical role in the future land use pattern of a local government, particularly with regard to roadways. The impact of a road-widening amendment is relevant to land use or environmental policies. There is, moreover, no question that improved or expanded transportation infrastructure does nothing to diminish the potential for development in surrounding areas as a general matter. In general, widening a roadway promotes development in surrounding areas served by the roadway. Growth management laws, therefore, generally discourage the provision of roadway capacity in areas where a local comprehensive plan discourages development. The general principles of the effects of roadway capacity and improvements to roadway infrastructure, including road widening, are also reflected in the State Comprehensive Plan, the Regional Policy Plan, Florida Administrative Code Chapter 9J5, and the CDMP, itself. Petitioners and Monroe County emphasize this point in the following paragraphs of their proposed recommended order now found as fact in this Recommended Order: []. Goal 19(a) of the SCP requires that future transportation improvements aid in the management of growth. Fla. Stat. 187.201(19)(a). []. Policy 19(b)(12) of the SCP requires that transportation improvements in identified environmentally sensitive areas such as wetlands be avoided. Fla. Stat. 187.201 (19)(b)(12). The Regional Policy Plan states that "roadways also aid in attracting development to new areas." Jt. 7@ 36. Rule 9J5 recognizes limits on extending infrastructure as a development control that can inhibit sprawl. Conversely, making improvements or extensions to infra- structure [when considered in isolation] can encourage urban sprawl. Darst V9@ 972. The CDMP's data and analysis contains the following language: Concepts and Limitations of the Land Use Plan Map: Coordinated- Managed Growth (p. I-59) "Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary.Consistency with the CDMP will ensure that the actions of one single-purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single- purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives." (Pre- Trial Stip. @ 18) (emphasis added) Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 7. Miami-Dade County, the Department and the City of Homestead do not contend otherwise. In the words of Thomas Pelham, distinguished expert in comprehensive planning whose testimony was presented by Miami-Dade County, the transportation map is "always relevant" (tr. 709) to issues of encouragement and discouragement of urban development. Furthermore, as Miami-Dade County concedes and as Mr. Pelham testified, new roads and improvements in roadway infrastructure "can aid in attracting development in new areas anywhere." Tr. 713 (emphasis supplied). For that basic reason, if a local government adopts a plan amendment that increases roadway capacity and the intent is not to attract development to the area around the roadway, the local government may opt to adopt additional protective policies. For example, in such a situation, the local government could take a clarifying step toward discouragement of urban development in areas served by the roadway planned for improvement: simultaneous adoption of a policy that prohibits consideration of the additional planned capacity of a roadway in subsequent future land use map decisions. Such an additional policy was not adopted as part of the Plan Amendment. In Mr. Pelham's opinion, however, it was not necessary, because of "the strong policies that already exist in the [CDMP]." Tr. 714. These strong policies include, of course, the existence of the UDB, a planning concept associated with Miami-Dade County in a unique manner in the State of Florida due to its strength and the length of existence over time. They also include CDMP policies related to lands designated as "Agriculture" or "Environmental Protection" whose purpose is to preserve and protect. The impact of roads on land use patterns in general, moreover, does not necessarily translate into expected impact in any specific case because of facts peculiarly associated with the specific case. As Mr. Pelham testified, "[t]here is absolutely nothing inconsistent with the four-lane divided highway in rural areas and agricultural areas. We have them all over the country, and in fact, you can identify numerous ones in this state alone." Tr. 676. Three prominent examples in Florida of four-lane divided highways that have not led to development were provided at hearing: Alligator Alley (the segment of Interstate 75 known also as Everglades Parkway) that stretches nearly the width of the Florida Peninsula from Collier County not far from the City of Naples at its western terminus through Big Cypress National Preserve across the boundaries of the Miccosukee Indian Reservation and the Big Cypress Seminole Indian Reservation into Broward County on the east; the Florida Turnpike running from deep in South Florida northward and westerly to Wildwood in Sumter County; and Veteran's Parkway, US 19, from Pasco County to Crystal River "that goes through vast stretches of rural and agricultural lands . . . ." Tr. 677. The construction of these four-lane divided highways have not promoted urban development in lands immediately adjacent to significant sections of these highways. That these highways did not promote urban development flows from their purpose. Their purpose, quite simply, is other than to support urban development. Their purpose is to provide efficient commercial transportation and to be safe for the transportation of people or as expressed at hearing, "to be conduits for people to go from one [point] to another without interruption in an efficient manner." Id. Furthermore, access to these rural, divided four-lane highways is restricted or tightly managed for several reasons. One of the benefits of restricted access is that it discourages urban development. While Miami-Dade County did not adopt a policy that a widened Krome Avenue was not to be taken into consideration in subsequent decisions to amend the future land use map, as Petitioners suggest it could have, New Transportation Policy 4E was added to the Plan Amendment in order to discourage urban development. That policy requires a detailed, binding controlled access plan for the Avenue corridor to be prepared by FDOT and adopted by Miami-Dade County prior to the commencement of any construction associated with four-laning or a capacity improvement. Adoption of such an access control plan will have a deterrent effect on urban development along whatever part of Krome Avenue may at some point in the future be widened to four lanes. The effect of the adoption of a binding access control plan was explained at hearing by Mr. Pelham: It means that most of the traffic on it is not going to be entering or leaving the highway to shop at retail commercial establishments or to go into office parks to work, or to frequent any of the other kinds of urban development that could spring up along the road. It will be a deterrent to anyone who wants to seriously talk about locating a business there because they're going to realize that the public does not have readily easy access to it. [New Transportation Policy 4E] will certainly help insure that [Krome Avenue] remains a primarily rural facility rather than the typical urban highway that's lined with urban development. Tr. 679. From a planning perspective, in addition to being an impediment to urban development, the New Binding Access Control Plan Policy is also a sufficient guideline to discourage urban development. Incorporation of the professional land planning concept of access control makes the policy clear to transportation planners and FDOT and to any party or entity called on to implement the plan especially when the last sentence of the new policy is considered: "[The binding access control plan] should emphasize access to properties fronting Krome Avenue primarily through alternative street locations." This sentence indicates that while access to Krome Avenue is not prohibited, access is to be governed by "a strictly limited access plan," tr. 681, a "strong benefit [of the Plan Amendment] and a strong disincentive or deterrent to urban development." Tr. 679. Urban Sprawl Internal DCA memoranda and the ORC Report reflect a concern by Department staff that the re-designation of Krome Avenue could encourage urban sprawl with serious negative impacts to the Redland and agricultural lands and the Everglades and areas designated to be protected environmentally. The concern of staff is not to be taken lightly. Re- designation of Krome Avenue as a Major Roadway with four-lane capacity will allow parties who seek to develop along Krome Avenue in the future to point to the new "planned" capacity as a factor in support of an amendment to the CDMP that would allow such development. "That's a . . . common argument for why a plan amendment . . . increasing densities in that area . . . [would be] appropriate." Tr. 494. The planned roadway will be more than just fuel for argument. According to Charles Pattison, Petitioners' comprehensive planning expert with significant credentials and experience, the planned capacity increase is without doubt a "key factor," tr. 494-5, for consideration of decision-makers in support of future CDMP amendments that allow urban development. Still, the existing policies that protect agricultural and environmentally sensitive lands, including the UDB and related policies, will also have to be taken into consideration. So will the results of FDOT's PD&E Study and the actual improvement undertaken under the guidance of the study by FDOT, if any, and in whatever form it may take. The policies should not fail to protect agricultural and environmentally protected land merely because of this plan amendment. The policies will not cease to be operative because of the re- designation of Krome Avenue even if FDOT ultimately decides to improve Krome Avenue by widening all or part of it to four lanes. Stated alternatively, in Mr. Pelham's words, existing policies "militate strongly against any urban development ... [outside] the urban growth boundary." Tr. 675. For this reason, among others, Mr. Pelham characterized the concerns of DCA staff and the fears of Petitioners, as "sheer speculation, suspicion and mistrust of . . . government . . . [of] a county that has a strong record of not extending its urban growth boundary." Id. Furthermore, it must be kept in mind what the re- designation of Krome Avenue does and does not do. It does not constitute the ultimate decision or authorization necessary to widen or improve the capacity of Krome Avenue. It does not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." Tr. 671. It is that development which "would cause potential urban sprawl problems that might threaten agriculture, that, theoretically, might pose a danger to the Everglades." Id. Development of that property would require plan amendments, vulnerable to challenges like this one and subject to scrutiny under the Growth Management Laws, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J5. Amendment of the CDMP, therefore, to "allow widening of an existing road to address safety or congestion or level of service or evacuation problems, in and of itself, does not pose any of those threats or harms." Tr. 672. Rule 9J5 Urban Sprawl Indicators Urban sprawl is evaluated according to 13 "primary indicators" set forth in Florida Administrative Code Rule 9J- 5.006(5)(g) (the "Primary Indicator Rule.") Applying the Primary Indicator Rule, the Department analyzes first, "within the context of features and characteristics unique to each locality" whether a plan amendment "trips" or "triggers" any of the 13: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, 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. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Fla. Admin. Code R. 9J-5.006(5)(g). If a plan amendment trips or triggers one or more of the Primary Indicators, the Department then considers the extent to which the tripped indicators suggest that the amendment does not discourage the proliferation of urban sprawl, or put conversely, induces sprawl. If the Department determines from review of the tripped indicators that the amendment does not discourage urban sprawl proliferation or in induces sprawl, then it turns its attention to the development controls in the comprehensive plan or in the proposed plan amendment. Evaluation of the development controls is made to determine whether they offset the amendment's inducement of urban sprawl. If the inducement is not sufficiently offset by development controls, then, the Department determines the amendment is not: consistent with relevant provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, F.S., and the remainder of [Florida Administrative Code Chapter 9J-5] regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources. Fla. Admin. Code R. 9J-5.006(5)(a). It is possible that if only a few of the 13 Primary Indicators were clearly "tripped" then a determination could be made that a plan amendment "does not discourage the proliferation of urban sprawl." Normally, however, if few primary indicators are tripped, "it's going to be a tough argument to make that [there is] sprawl inducement." Tr. 919. The Department's Position re: Primary Indicators The Department's position is that the Plan Amendment does not trip in any way 10 of the 13 primary indicators listed in the Primary Indicator Rule. The main reason they are not tripped, in its view, is because the amendment, in and of itself, does nothing more than plan for the improvement of Krome Avenue up to a capacity of four lanes. For example, the first primary indicator is whether the plan amendment "[p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need." Fla. Admin. Code R. 9J-5.006(5)(g)1. As Mr. Darst testified, "[T]his is an amendment for the widening of the road and it's not a land use amendment." Tr. 913-4. In and of itself, the amendment does not allow or designate any development. Primary Indicator 4 is not tripped because "premature or poorly planned conversion of rural land to other uses" is not at issue in this case. An analysis of Primary Indicator 5 can only take place "within the context of features and characteristics unique" to Miami-Dade County, including the UDB and the protective policies of the CDMP and the Plan Amendment, itself. Primary Indicators 9 through 13, are not tripped. Primary Indicators 9 through 12 are not relevant to this case. Primary Indicator 13 is not tripped because although small amounts of functional open space might be taken for widening Krome Avenue, the amount would not be significant relative to the amount of functional open space adjacent to Krome Avenue. Of the other three primary indicators tripped in the Department's view by the Plan Amendment, they are tripped only minimally. Primary Indicator 6 is tripped because with Krome Avenue widened "trips shift there from another road," tr. 916, so that maximum use is not made of the other road, an existing public facility. The same is true of Primary Indicator 7, which relates to future public facilities. Primary Indicator 8 is tripped because funds will have to be expended to construct any widening and because of an increase in law enforcement expenses. The involvement of Primary Indicator 8, however, is minimal and without significant impact. Despite the Department's position, the re-designation of Krome Avenue, at a minimum, has at least the potential to "promote" development so as to trip Primary Indicators 1, 2, and As Mr. Pattison testified, the planned increased capacity of Krome Avenue is, by the very nature of increased roadway capacity, a key factor for consideration of proposed amendments that would allow increased development of lands surrounding Krome Avenue. Whether the Plan Amendment is not in compliance for failure to comply with urban sprawl requirements depends on whether the tripped Primary Indicators are offset by development controls. Development Controls Florida Administrative Code Rule 9J-5.006(5)(j, (the "Development Controls Rule") states "[d]evelopment controls in the comprehensive plan may affect the determination in (5)(g) above," that is, whether a plan amendment does or does not discourage the proliferation of urban sprawl. Determination that urban sprawl indicators have been tripped, therefore, is not, standing alone, sufficient to find that a plan amendment fails to discourage urban sprawl. The Development Controls Rule lists 22 types of development controls to be evaluated to determine how they discourage urban sprawl. The CDMP contains development controls to discourage urban sprawl and development in areas designated Agriculture, Open Land or Environmental Protection. They are the UDB, see Florida Administrative Code Rule 9J-5.006(5)(j)21., and the two policies related to it: Land Use Element Policies 8G and 8H. Evaluation of the development controls in the CDMP leads to a determination that the tripped Primary Indicators, Primary Indicators 1, 2, and 3, triggered by the Plan Amendment's potential to promote development that could lead to urban sprawl and Primary Indicators 6, 7 and 8, all "minimally" tripped, are offset by the development controls. Furthermore, the Plan Amendment, itself, contains additional policies that constitute development controls: the New Land Use Policies requiring super-majorities of the Board of County Commission for approval of re-designations near Krome Avenue and the New Binding Access Control Plan Policy. See Fla. Admin. Code R. 9J-5.006(5)(j)15. and 22. Petitioners view the New land Use Policies as inadequate development controls because they do not set forth measurable or predictable standards to govern county commission decisions. Other than to require super-majorities for re- designation of land uses near Krome Avenue ("procedural" standards), the New Land Use Policies do not contain standards that govern county commission decisions. But there are a plethora of standards elsewhere in the CDMP. These other standards have been determined to be meaningful and predictable and there is nothing in the New Land Use Polices that allows the commission to disregard them. New Policy 4E which requires an access control plan prepared by FDOT prior to construction of any capacity improvement to Krome Avenue is viewed by Petitioners as "so vague as to fail to meet the definition of an objective or policy or to provide meaningful or predictable standards." Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 18. But a reading of the policy contradicts the allegation. Meaningful and Predictable Standards Petitioners allege that the Plan Amendment is inconsistent with land use policies requiring coordination with the surrounding environment and requiring meaningful standards for more detailed regulations, and, therefore, that it is inconsistent with Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(6). The CDMP contains meaningful and predictable restrictions on land use in areas designated Agriculture, Open Land and Environmental Protection. The Plan Amendment does nothing to deter those restrictions. Furthermore, among new policies in the Plan Amendment is the addition of procedural safeguards to the substantive criteria, thereby strengthening the existing standards. The Plan Amendment, therefore, retains meaningful and predictable standards for more detailed regulation, and if anything, strengthens the chance for their application to protect lands designated Agriculture, Open Land and Environmental Protection. Increasing Land Values and Speculation Petitioners argue that widening Krome Avenue to four lanes will adversely affect farming in the Redland and the Everglades by increasing land values and speculation. These arguments do not take into account that regardless of improvements to Krome Avenue, most of the area north of 42nd Street has little appeal to developers. Its designation as Environmental Protection makes it difficult if not impossible to develop. Despite extreme development pressure elsewhere in the county, to date there has been little pressure to develop the area due to the success of the comprehensive plan, particularly its policies against development in the area. Asked at hearing about such pressure, Miami Dade County's Director of Planning and Zoning, Diane O'Quinn responded, ". . . I haven't seen it. Not at all . . . because we've got very strong environmental policies in the comp plan." Tr. 625. Furthermore, considerations of increasing values and land speculation are not compliance issues under Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Were they compliance issues, there are other forces at work that are encouraging an increase in land values in the Redland: in particular, the economics of the agriculture industry and the increasing demand for residential housing throughout Miami-Dade County. Agricultural uses in the County have been declining since Hurricane Andrew in 1992. Up to then, the predominant forms of agriculture had been row crops (tomatoes, for example) and lime, avocado and mango groves. Andrew destroyed many groves. They were not replanted because of expense and the length of time it takes from planting for the groves to bear fruit and increasing competition from foreign producers. Within a year or two of the hurricane, the North American Free Trade Act (NAFTA) was passed and produce from Mexico and Central America was introduced in great volume into U.S. markets. The south of the border competition generated by NAFTA, especially with regard to tomatoes and limes, reduced the value of the type of produce that had been predominant in the Redland prior to Andrew. Ten years later, the University of Florida's Florida Agricultural Market Research Center in the Summary and Recommendations Section of its Miami-Dade County Agricultural Land Retention Study (the "Agricultural Land Retention Study") described the market for agricultural commodities produced in Miami-Dade County as "fiercely competitive," Joint Exhibit 55, p. xiv, because of Latin American produce and predicted, "[e]conomic globalization and trade liberalization will continue. It is unlikely that the U.S. trade policy will be altered to any appreciable degree in the foreseeable future to protect domestic fruit and vegetable industries." Id. at xiii. Testimony at hearing established that these predictions have been accurate through the time of final hearing in late 2005. The Study, completed in April 2002, also reached this conclusion: Population growth and concomitant urban development appear inevitable for Miami-Dade County. Based on the capitalization of relatively low financial returns to agriculture in recent years, especially row crops, only about twenty-five percent of the current land prices is justified by returns to land in agricultural uses. The remaining seventy-five percent represents future anticipated value in non-agricultural or I agricultural residential use. Further, as supply of developable land dwindles, prices will undoubtedly increase. These price increases, if accompanied by chronically low financial returns to agriculture, will motivate landowners to convert to agricultural land to higher-valued uses. Joint Exhibit 55. p. xiii. This observation continued to have validity more than three years later at the final hearing in this case in late 2005. Following Andrew, land prices that had been stagnant for many years at $5,000 per acre or so increased three and four fold. The increases made it relatively expensive to buy land, plant and grow. The combined effects of Andrew and NAFTA reduced row crop and grove produce profitability. The agricultural industry shifted to ornamental horiculture nurseries. At the time of hearing, land prices had risen so much that even the nurseries whose products have been in demand for residential development have begun to become economically infeasible. Soon after 1992, the SFWMD also began buying property for Everglades restoration projects west of a levee on the west side of Krome that runs parallel to the roadway. These purchases too increased land values in the area. The recent rise in prices is also due to the low interest rate environment that began to have a wide-spread effect in early 2000. The low interest rate environment spurred demand for single-family homes. Furthermore, with the stock market decline that commenced in early 2001, investors began shifting from equities to real estate and demand for second homes increased. Miami-Dade County's excellent weather attracts people from all over the world and this has fostered increased foreign investment in the local real estate market. The combination of all these events led to acquisition of land for residential development throughout Miami-Dade County by developers. The diminution in the amount of vacant residential land naturally turned the attention of developers to agricultural areas and to the Redland where density is limited to one hours per five acres. The increased demand for housing led to price escalation so that five-acre parcels in the Redland became relatively inexpensive. The confluence of these factors accelerated the subdivision of agricultural properties into five-acre residential estates in the Redland. This trend began with Krome Avenue as a two-lane road and it is reasonably expected to continue, regardless of whether Krome is improved to four lanes or not. The trend toward development of five-acre residential estates will likely stave off further urbanization of the Redland. As the area is developed at one house per five acres, it becomes difficult to reassemble acreage to create subdivisions of higher density. For properties in the Redland that do not directly abut the road, the price of land is unrelated to Krome Avenue. Rather, it is based on the increasing demand for five-acre estates. The New Land Use Policies will likely restrain speculation based on the re-designation of Krome Avenue. One of the components of value is the probability of rezoning. Often much more important to land values are other factors: the land use plan designation and the history of land use in the surrounding areas. The planning and zoning restrictions, particularly in the light of the New Land Use Policies, send a signal to the market that the area around Krome Avenue is not slated for urbanization. The restrictions thereby limit increase in value and dampen speculation based on the potential widening of Krome Avenue. The trend in converting agricultural lands to residential uses has been in the making in Miami-Dade County for at least 30 years. The interplay between the agricultural and housing markets is the result of far larger forces than whether Krome Avenue is re-designated for improvement up to a divided four-lane roadway making any such re-designation of minor impact. As Mark Quinlivan, an expert in the field of real estate valuation in particular with regard to the areas along the Krome Avenue Corridor and the Redland, summed up the situation at hearing: So the trend is and has been for the last few years . . . to convert [the Redland] to five acre estates. Once they are converted to five acre estates and the homes are actually built, there is really not much else that can be done. Now you can't tear down the house and re-subdivide it if you could rezone. . . . [W]hether you put Krome as two lanes, four lanes, six lanes this trend is way beyond this amendment . . . Tr. 264. Environmental Impacts Although whether Krome Avenue will ever be improved to four lanes north of US 41, most of which crosses lands designated Environmental Protection depends on an environmental evaluation and other factors subject to an FDOT PD&E Study, it must be assumed for purposes of this compliance determination that it is allowed to be four lanes. The same assumption must be made for all of Krome Avenue subject to the Plan Amendment. Were a new plan amendment to be applied for, however, to re- designate land adjacent to Krome Avenue, road capacity would be a "minor" consideration because development control "policies in the plan are very strong and they're much more important and that would override the fact that there happens to be road capacity available." Tr. 737. The County recognizes the importance of maintaining a buffer between urban development and the Everglades. This recognition is reflected in CDMP policies. The CDMP, moreover, attempts to prevent the loss of environmentally sensitive lands. In the 1990's Congress required the U.S. Army Corps of Engineers to develop a plan to reverse as much as possible the anthropogenic damage inflicted upon the Everglades. The result was CERP, a joint federal/state plan to restore the Everglades by completing sixty-eight individual projects by 2038 costing many billions of dollars. Adopted by an Act of Congress in 2000, CERP directs the Corps to restore the Everglades using CERP as a guideline. With the exception of 10 of the projects authorized by the act, each of the other 58 individual CERP projects must undergo a specific process of planning and then Congressional authorization and appropriation. There have been no Congressional authorizations since 2000. The 58 projects not authorized in 2000 still await final planning and design and Congressional authorization and appropriation. Because of a design of Krome Avenue improvement has not been proposed, it is not possible to determine whether the widening of Krome Avenue will physically impact CERP projects. The concern advanced by Petitioners is that improvement to Krome Avenue will not only decrease the availability of land availability to CERP but will also raise land values. The concern is appropriate because, in general, the primary strategy of CERP is the acquisition of privately-owned land to dedicate to water storage, wetland restoration, and other related uses. "Most [CERP] projects have land acquisitions as the single largest factor in their cost." Tr. 415. Escalating real estate costs is a significant issue for CERP project managers attempting to stay within budget. As land acquisition costs increase, it becomes more difficult to get adequate funding or even authorization of a project. Furthermore, the federal authorization law requires a re- authorization by Congress if projected initial costs are exceeded by more than 20 percent. One of the critical aspects of CERP is water storage for which significant amounts of land must be acquired. There are numerous water storage restoration projects planned in the vicinity of Krome Avenue dependent on land acquisition. Petitioners recognize, however, that there is a certain amount of speculation in any anticipation of a rise in land values in the area of Krome Avenue. "If widening Krome Avenue raises the value . . . of surrounding lands it will have an adverse affect on the success of the Everglades restoration project." Petitioners and Intervenor Monroe County's Proposed Recommended Order, para. 95, p. 16 (emphasis supplied). Furthermore, as found already, the rise is dependent on re- designation of lands in the area of Krome Avenue, which are subject to policies in the CDMP, such as the existing Conservation Element, that discourage re-designation in a manner that would stimulate a rise in land values. It is sufficient for the CDMP to have policies that direct development to minimize impacts to environmental resources and guide the more detailed analysis that will be performed pursuant to the PD&E Study and further regulations. As Thomas Pelham explained: The purpose of the comprehensive plan is to establish policies that will be applied to and will govern actual development proposals that come in under the plan. It's not the purpose of a comprehensive plan to do a development permit level analysis. You do that when development permits are applied for . . . until you have . . . a specific proposal for a road, actual alignment, design features, you can't really fully analyze the impacts of it, anyway. . . . [T]he comprehensive plan . . . establish[es]] in advance policies that are reviewed for adequacy for protecting natural resources, the environment, so, that when someone comes in with an actual development proposal, then, it has to be evaluated in terms of the policies in the plan, and if it's not consistent, the law requires that it be denied. Tr. 686-7. The existing Conservation Element and other CDMP policies that protect environmental resources adequately address the potential impacts of the Krome Avenue Amendment vis-à-vis the environment and environmental considerations. South Florida Regional Policy Plan Amendments must be consistent with the Strategic Regional Policy Plan (SRPP) in order to be in compliance. § 163.3184(1)(b), Fla. Stat. SRPP Goal 2.1 is to achieve long-term efficient and sustainable development patterns by guiding new development and redevelopment into area which are most intrinsically suited for development. This includes areas where negative impacts on the natural environment will be minimal and where public facilities/services already exist, are programmed, or on an aggregate basis, can be provided most economically. SRPP Policy 2.1.4 requires development to be directed away from environmentally sensitive areas. Strategic Regional Goal 2.2 is designed to revitalize deteriorating urban areas. SRPP Policy 2.2.1 requires priority for development in blighted areas characterized by underdevelopment/under- employment that are in need of re-development. SRPP Policy 3.9.1 is designed to direct development and uses of land inconsistent with restoration away from Everglades and adjacent natural resources of significance. State Comprehensive Plan Section 187.101(3), Florida Statutes, states the following with regard to the construction of the State Comprehensive Plan: The [state comprehensive] plan shall be construed and applied as a whole, and no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan. Petitioners do not ignore this provision of the statutes, citing to it in their proposed recommended order. See Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 41. Petitioners contend that it is beyond fair debate that the Plan Amendment is inconsistent with the State Plan as a whole and that it is specifically inconsistent with the following provisions in the State Plan: LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water and other natural resources to meet demands; and the potential for flooding. URBAN AND DOWNTOWN REVITALIZATION.-- (a) Goal.--In recognition of the importance of Florida's vital urban centers and of the need to develop and redevelop downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for an finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. TRANSPORTATION.-- Goal.--Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. 12. Avoid transportation improvements which encourage or subsidize increased development in coastal high-hazard areas or in identified environmentally sensitive areas such as wetlands, floodways, or productive marine areas. AGRICULTURE.-- (a) Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Id. at pgs. 41-43.
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 October 2002 Plan Amendment to the Comprehensive Development Master Plan of Miami- Dade County adopted by the Board of County Commissioners for Miami-Dade County as reflected in Ordinance No. 02-198 be determined to be "in compliance." DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006.
The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2015.
The Issue The issue in these cases is whether the Alachua County Comprehensive Plan amendments adopted through Alachua County Ordinance Number 03-05 on August 26, 2003, are "in compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003).
Findings Of Fact Parties The Board is a local government charged with the responsibility of adopting and enforcing a comprehensive plan as provided in the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2003)(the "Act"). In this Recommended Order, "the Board" will refer to the elected Board of County Commissioners. "The County" will refer to Alachua County staff, as well as to the County as a litigant in these proceedings. The Department of Community Affairs is the state land planning agency with the authority to administer and enforce the Act. David and December McSherry are residents of the County, own and operate a business, and own property in the County. The McSherrys made comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The McSherrys are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding. Dr. Adams owns property and resides in the County. Dr. Adams submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Adams is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Dr. Kathy Cantwell owns property and resides in the County. Dr. Cantwell submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Cantwell is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Holly Jensen owns property and resides in the County. Ms. Jensen submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Ms. Jensen is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Sierra Club, Inc., is a California nonprofit organization that advocates ecological conservation in the County through its Florida chapter and the Suwannee-St. Johns Group. Sierra Club and a substantial number of its members conduct a business in the County by maintaining a local website, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, distributing publications, purchasing, selling and delivering merchandise and goods and services, holding conferences and meetings, maintaining local representatives, distributing information and newsletters, and organizing members and other citizens to petition the government for redress of grievances. Sierra Club provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Sierra Club is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. SAC is a Florida nonprofit organization that advocates ecological conservation and principles of sustainability in the County. The organization and a substantial number of its members conduct a business in the County by maintaining a local website that is a forum for local comment, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, and distributing publications. SAC provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. SAC is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. Each of the Jonesville Petitioners owns property and operates businesses in the County. Each of the Jonesville Petitioners provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The Jonesville Petitioners are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding. PRPV is a Florida not-for-profit corporation that was created for the purpose of representing landowners of rural and agricultural land, participating with local and state government in the development of reasonable land use regulations, and protecting values of rural properties in the County. A substantial number of PRPV's members reside in, own property in, or own or operate businesses in the County. PRPV submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. PRPV is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. BANCF is a Florida corporation that was created for the purpose of educating and advocating on behalf of its members, who are primarily engaged in the residential and commercial construction industry in the County and who are citizens residing in, and businesses located in the County. A substantial number of BANCF's members reside in, own property in, or own or operate businesses in the County. BANCF submitted oral and written comments to the Board concerning the 2003 Amendments during the respective transmittal and adoption periods. BANCF is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. Background and Procedural Issues The Board adopted the Plan in 1991. In 1998, the Board adopted an Evaluation and Appraisal Report ("EAR") for the Plan. Subsection 163.3191(1), Florida Statutes (2003), requires each local government to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR. § 163.3191(10), Fla. Stat. (2003). In August 2001, the Board adopted amendments to the Plan and transmitted them to DCA, and to the other agencies enumerated in Florida Administrative Code Rule 9J-11.009(6), for review and comment. On November 30, 2001, DCA completed its review of the amendments and issued its Objections, Recommendations and Comments document (commonly referred to as an "ORC Report") to the County pursuant to Florida Administrative Code Rule 9J-11.010. On April 8, 2002, the Board adopted the 2002 Plan Update, addressing the objections raised in the ORC Report. By letter dated May 31, 2002, DCA notified the Board that it had completed its review of the 2002 Plan Update and determined that it met the Act's requirements for "compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003). DCA published notice of its intent to find the 2002 Plan Update in compliance in The Gainesville Sun on June 3, 2002. On June 24, 2002, PRPV and others filed a petition challenging DCA's determination that the 2002 Plan Update was in compliance. The Petition was forwarded to DOAH on July 5, 2002. BANCF was granted intervenor status, in alignment with PRPV, on July 11, 2002. On July 25, 2002, the PRPV Petitioners joined by BANCF, filed a request for mediation pursuant to Subsection 163.3189(3)(a), Florida Statutes (2003). On August 1, 2002, the Board filed a response agreeing to participate in mediation. In the instant proceeding, the Sierra Club/McSherry Petitioners have alleged several irregularities in the mediation process. They allege that despite the requirements of Subsection 163.3184(16)(a), Florida Statutes (2003), regarding mediation, "the McSherry Petitioners found that they were not given adequate notices of [mediation] meetings and proposals, that the method in which the mediator ran the meetings denied them a reasonable opportunity to participate, that they were not included in negotiation meetings, and that negotiation meetings were not open to the public, and that when the public did attend meetings the public was not allowed to comment." The Sierra Club/McSherry Petitioners allege that they were systematically frozen out of the mediation process, which resulted in a settlement agreement favorable to PRPV and BANCF. However, the facts established at the hearing did not support these allegations. One particular complaint by the Sierra Club/McSherry Petitioners is that the mediator, Robert Cambric of DCA, split the mediation into two simultaneous meetings, one on land use and one on environmental issues, making it impossible for an individual or a small group to follow all the issues under discussion. This situation did occur at one mediation session on December 12, 2002. Ms. McSherry and Dr. Adams complained about this arrangement, and it was not repeated by Mr. Cambric. Richard Drummond, the County's growth management director, testified that no agreements were reached at the December 12, 2002, sessions; rather, participants were given "homework assignments" to complete for the next mediation session. Mr. Drummond's testimony is supported by the fact that the mediation process continued for another six months after this disputed meeting. The Sierra Club/McSherry Petitioners were allowed to participate in the mediation sessions even before they were formally granted intervention in the underlying proceeding. No evidence was presented to establish that secret meetings were held. The evidence demonstrated that County staff, at the Board's direction, attempted to negotiate a tentative settlement. On several occasions, the Board held public meetings at which extensive public comment was elicited and during which the Board directed staff regarding its position on issues. The Sierra Club/McSherry Petitioners actively participated in these public meetings, and were represented at all the mediation sessions. No evidence was presented that the mediator acted less than capably and professionally during the mediation process. Mediation sessions were open to the press and public, though participation at the sessions was limited to the parties, which included the Sierra Club/McSherry Petitioners. Every person who requested individual notice of mediation sessions was included on an electronic mail distribution list and received notice. The Board's meetings on the mediation were publicly noticed, and extensive public comment was taken. Beginning in December 2002, a spreadsheet matrix was circulated that outlined the positions of the County and of the PRPV Petitioners on the narrowing list of issues that remained in dispute. As the mediation entered February 2003 and the County and PRPV inched closer to settlement, it became apparent that the County's position on many issues was beginning to diverge from that of its aligned Intervenors, the Sierra Club/McSherry Petitioners. Mr. Cambric, the mediator, offered to meet with Dr. Adams and Dr. Cantwell6/ in order to flesh out their issue positions for inclusion in a separate "intervenors" column of the spreadsheet matrix. On or about March 5, 2003, Mr. Cambric, Richard Drummond, and other County staff persons held the proposed meeting with Dr. Adams, Dr. Cantwell and the McSherrys. A revised matrix was circulated on March 11, 2003, that included a separate column setting forth Intervenors' position. On March 20, 2003, the matrix was further amended to add a separate column for the McSherrys, whose positions on some issues deviated from the positions of Dr. Adams, SAC, and the Sierra Club. It is clear from the documentary evidence and the testimony of various witnesses that the Sierra Club/McSherry Petitioners felt a degree of betrayal in the County's reaching a settlement with PRPV. However, the evidence was insufficient to establish their allegations that they were denied adequate participation in the process. The Sierra Club/McSherry Petitioners contend that the driving force in the settlement of PRPV's challenge was a change in the makeup of the Board in the wake of a primary election held on September 10, 2002. The political situation in Alachua County is obviously relevant to the concerns of the parties, but is beyond the scope of this proceeding. There is no need for detailed findings of fact concerning the Board elections or the positions taken by candidates for office in the County. Finally, the Sierra Club/McSherry Petitioners contend that jilted Intervenors; i.e., those who supported the County's initial litigation position in defense of the 2002 Plan Update and then opposed the Stipulated Settlement Agreement, should be allowed, by virtue of the realignment of parties pursuant to Subsection 163.3184(16)(f), Florida Statutes (2003), to step into the shoes of the original Petitioners and attack the 2002 Plan Update, as well as the 2003 Amendments. This contention was rejected at the hearing for reasons explained in the Conclusions of Law below. Extensive evidence, testimonial and documentary, was taken regarding the 2002 Plan Update. However, findings of fact concerning the 2002 Plan Update are confined to its interplay with the 2003 Amendments and to issues of internal consistency raised thereby. The Jonesville Petitioners raised procedural issues regarding the concluding phase of the mediation. On July 11, 2003, the Jonesville Petitioners filed a motion to intervene in the challenge to the 2002 Plan Update. Their concern was that the revised definition of "strategic ecosystem" in the proposed 2003 Amendments would adversely affect the value and/or development potential of their properties. At the hearing, the Jonesville Petitioners contended that they were not given adequate notice of the proposed change to the definition of "strategic ecosystem." Policy 1.1.2 of the Conservation and Aquifer Recharge Element of the 1991 Plan required the County "to provide notification to all property owners whose land use may be restricted due to proposed conservation or preservation designation in the Comprehensive Plan prior to official designation in the Alachua County Comprehensive Plan." The evidence established that the County complied with this policy, providing notice by mail in April 2003 to all owners of property proposed to be mapped as part of a "strategic ecosystem" site by the 2003 Amendments. The notice informed the property owners that their properties had been identified within the mapped areas and invited the property owners to attend one of a series of late-April 2003 informational workshops regarding the map. The Jonesville Petitioners received the mailed notices. The Board held a public hearing on approval of the Stipulated Settlement Agreement on July 15, 2003, and a public hearing on August 26, 2003, to adopt the 2003 Amendments. The Jonesville Petitioners had actual knowledge of the public hearings in July and August to approve the agreement and adopt the 2003 Amendments and were represented at those hearings. At the hearing in the instant proceeding, the Jonesville Petitioners complained that they submitted extensive site investigation reports to the Board at the July 15, 2003, demonstrating that their properties should not be considered "strategic ecosystems," but that they were allowed only three minutes to make their presentation at the hearing. There was no requirement that the Board allow lengthy, fact- intensive presentations concerning specific parcels of land during the public hearing to adopt the Stipulated Settlement Agreement. Nonetheless, the evidence established that the Jonesville Petitioners, like the other parties to the underlying litigation, would have been allowed more than three minutes had they requested it before the hearing. There was also no requirement that the County staff or the Board make a detailed response to the Jonesville Petitioners' site reports prior to the Board's adoption of the Stipulated Settlement Agreement or the 2003 Amendments. Further, as is more fully explored below in the findings as to the 2003 Amendments, the information provided by the Jonesville Petitioners was more appropriate to a land development scenario than to the large- scale comprehensive plan amendment process that the County was undertaking. In conclusion, it is found that neither the Sierra Club/McSherry Petitioners nor the Jonesville Petitioners demonstrated that their procedural rights under the Act or its implementing rules were violated by the process employed by the County during the mediation and when adopting the 2003 Amendments. 2003 FLUE Amendments Gated Communities and Cul-de-Sacs FLUE Objective 1.2 in the 2002 Plan Update states: Provide for adequate future urban residential development that includes a full range of housing types and densities to serve different segments of the housing market, designed to be integrated and connected with surrounding neighborhoods and the community, with opportunities for recreation and other mixed uses within walking or bicycling distance. The 2003 Amendments included the following changes to FLUE Policy 1.2.1.17/: Residential areas shall be designed to provide for an interconnected system of internal circulation, including the provision of streets dedicated to the public connecting the residential area to the major street system. New development shall not restrict preclude public access to the development or include cul de sacs. Residential areas shall also be designed to provide for substantial interconnectivity between adjacent developments and within developments, except where such connectivity is precluded by constraints resulting from physical layout of existing development or environmental features. If connectivity is precluded by such constraints, cul de sacs may be considered for those roads subject to such constraints. The land development regulations shall detail the requirements for public access and substantial interconnectivity based on standards such as a connectivity index, maximum separations between connections to adjacent developments, and rules relative to hours, operations, and public safety considerations for any restriction of access through use of gates. FLUE Policy 1.2.1.1 was new to the 2002 Plan Update. Its purpose is to assist in discouraging urban sprawl by encouraging street connectivity, thus, moving the County away from a development pattern of isolated residential subdivisions with only one or two points of ingress/egress. Adding connectivity features allows pedestrian or bicycle travel between subdivisions and disperses the flow of vehicular traffic by providing more points of entry to arterial roads. All of the parties agreed that interconnectivity is a positive value. The Sierra Club/McSherry Petitioners criticize amended Policy 1.2.1.1 for failing to define "substantial interconnectivity" and, therefore, providing no meaningful standards by which to determine whether a new residential development provides "substantial interconnectivity." They point out that the policy leaves it to subsequent land development regulations ("LDRs") to define the term, but provides little guidance and essentially standardless discretion to the drafters of the LDRs. The Sierra Club/McSherry Petitioners' chief concern was that a lax regulatory regime could define a single connecting road as "substantial interconnectivity" and, thereby, defeat the clear intent of the policy. Similarly, they observed that Amended Policy 1.2.1.1 refers to a "connectivity index," but provides no definition or guidance as to the meaning of the term, again leaving the LDR drafters limitless discretion. The Sierra Club/McSherry Petitioners suggest that the seeds for lax regulation are planted in the policy through its requirement that the LDRs provide for "maximum separations between connections to adjacent developments." They argue that, if the goal is to provide for interconnected developments, then the LDRs should logically provide for minimum, not maximum, separations between connections. This argument is rejected simply as a matter of logic because providing for maximum separations in the LDRs is precisely what can ensure interconnectivity.8/ Finally, the McSherry Petitioners argue that the amended policy's allowance of gated communities is in direct contradiction to its mandate that "[n]ew development should not preclude public access to the development." They contend that LDRs providing rules for "hours, operations, and public safety considerations for any restriction of access through use of gates" would create an internal inconsistency within FLUE Policy 1.2.1.1. The County presented testimony from Richard Drummond stating that amended FLUE Policy 1.2.1.1 strengthens existing Plan provisions for interconnectivity by adding the requirement for "substantial interconnectivity," and by adding a requirement that new development not preclude public access. Robert Pennock, PRPV's expert witness on local government comprehensive planning, with an emphasis on urban sprawl, testified that the term "substantial," in the context of FLUE Policy 1.2.1.1 and in combination with other policies in the Plan, is a meaningful qualifier indicating the County's intent that its future development pattern will not be a patchwork of isolated subdivisions with a single connection to an arterial road. Mr. Pennock pointed out that a degree of common sense must be applied to the use of the term in the development of LDRs and that it must be acknowledged that the details of the LDRs will be developed by professional planners. Mr. Pennock's comments regarding common sense and good faith on the part of the regulators points out the chief flaw in the Sierra Club/McSherry Petitioners' argument that a lax regulatory regime could employ the terms "substantial interconnectivity" and "connectivity index" in such a way as to allow developers to do whatever they wish. The argument fails to explain why such a hypothetical "bad regulator" could not twist the Sierra Club's favored term, "connectivity," in the same fashion. If one accepts the hypothetical premise of the "bad regulator" poised to do the bidding of residential developers regardless of any other considerations, then the text of the Plan will hardly matter; the bad regulator will find a way around the Plan's language. In fact, "substantial interconnectivity" is no more or less vague a term than "connectivity." As Mr. Pennock testified, these terms have meaning in the planning profession, and it must be accepted that the County will draft meaningful LDRs to implement FLUE Policy 1.2.1.1, including the challenged terms. In summary, the Sierra Club Petitioners did not establish that an outright ban on gated communities or cul-de- sacs is necessary for the County to have an efficient road network, meet applicable levels of service or Rule 9J-5 requirements, or that such a ban has ever been imposed elsewhere in Florida. It is at least fairly debatable that 2003 FLUE Policy 1.2.1.1 appropriately responds to the data and analysis and provides adequate guidance for development of LDRs. Clustering Florida Administrative Code Rule 9J-5.003(14) defines "clustering" as "the grouping together of structures and infrastructure on a portion of a development site." Clustering is a planning and development technique that transfers the allowable development density onto smaller lots on a portion of the property to be developed, in a tighter development pattern, that reduces road and infrastructure costs and that sets aside the remainder of the property for conservation, agriculture, or general open space. Residential cluster development is generally promoted as a means of conserving open space, rural character, and important environmental resources in new housing developments. According to the County's "Supporting Data and Analysis for Comprehensive Plan Amendments Updating the Alachua County Comprehensive Plan: 2001-2020" (the "Data and Analysis"), clustering is a "means to protect the characteristics and features of rural areas, while allowing for rural residential lifestyles." FLUE Policy 7.2.8 of the 1991 Plan required clustering in new rural residential subdivisions with 25 or more lots and made no provision to allow clustering for smaller subdivisions. Proposed clustered developments were required to seek permits as Planned Unit Developments, a lengthy and complicated zoning process that included review by County staff, recommendations by the Board, and final approval or denial by the Board at a public hearing. Every witness who testified on the subject agreed that the clustering provision of the 1991 Plan had been a failure. Only two proposed developments have sought permits as clustered developments, and both were denied. The County approved the construction of phased subdivisions, with each phase containing fewer than 25 lots and built to the base rural density of one unit per five acres. Smaller subdivisions were designed to fall below the 25-lot threshold for clustering. Richard Drummond noted that the 1991 Plan would not allow the developer of these smaller subdivisions to cluster even if he so desired. These subdivisions tend to be platted in such a way that each lot owner also owns a small part of the natural resources found in the subdivision, complicating any efforts by the County to preserve those resources. The consensus of the expert opinion was that clustering failed because developers tend to be conservative in designing subdivisions. Clustering is a new pattern for development, and 1991 FLUE Policy 7.2.8 offered insufficient incentive to developers to take the risk of building and marketing nontraditional developments and left them the option of sizing their developments to avoid the clustering requirement. In the 2002 Plan Update, proposed FLUE Policy 6.2.9 addressed the reluctance of developers to cluster by removing their option to avoid clustering by downsizing their projects. The policy would have required clustering in all new rural residential subdivisions. The 2003 Amendments softened the policy as follows: Policy 6.2.9 Clustering The preferred design for Nnew rural residential subdivisions shall be is that they be clustered in order to protect the characteristics and features of rural areas through the following goals: Protect natural and historic resources. Support continued agricultural activities by preserving viable soils and effective land masses. Minimize land use conflicts. Provide recreational and habitat corridors through linked open space networks. Achieve flexibility, efficiency, and cost reduction in the provision of services and infrastructure. Reduce natural hazard risks to life and property. The 2003 Amendments maintain the clustering requirement for new developments containing 25 or more lots, but attempt to provide more incentives to developers to use clustering in developments of any size. 2003 FLUE Policy 6.2.10, relating to allowable density and intensity of new development, provides for a "density bonus" as follows, in relevant part: The overall development density shall not exceed the maximum gross density of one dwelling unit per five acres for the Rural/Agriculture land use category, except as a result of incentive bonuses for clustering as provided under item 4 below, subject to the resource protection standards in the Conservation and Open Space Element. These standards include the following requirements: * * * 4. As an incentive to cluster new residential subdivisions, if a new residential subdivision in the Rural/Agriculture area is clustered with a minimum of 50% of the development in open space, a total of 2 units in addition to the number of units based on the gross density of 1 unit per 5 acres are allowed, plus 1 additional unit per every 10 acres of conservation area set aside as open space; plus 1 additional unit per every 20 acres non-conservation area set aside as open space. As a further incentive, the 2003 Amendments delete the Planned Unit Development aspect of clustered subdivision approval, expediting the zoning approval process. Under the clustering provisions of the 1991 Plan, rural subdivisions with more than 25 lots were required to set aside 80 percent of their area as open space. The 2003 Amendments reduce this open space set-aside to 50 percent. Richard Drummond persuasively noted that there is no practical reduction in the set-aside, because very few people subjected themselves to the clustering requirement of the 1991 Plan. Also, the 1991 Plan expressly disclaimed any intent that the open spaces remain undeveloped in perpetuity. 2003 FLUE Policy 6.2.12.4 provides that all future development in designated open space areas is prohibited and requires the filing of a legal instrument that runs with the land establishing that the open space will be maintained and remain undeveloped in perpetuity. Conservation is the highest priority among the open space uses recognized by the 2003 Amendments' provisions on rural development. 2003 FLUE Policy 6.2.5 requires clustering for a new development of more than 25 lots, then goes on to provide that a new development of fewer than 25 lots must either cluster or employ a development plan "that assures the permanent protection of natural resources consistent with the requirements of the [COSE]." 2003 FLUE Policy 6.2.5 further provides that the LDRs will detail the requirements for "management and permanent protection of the ecological value of natural resources in those developments that are not clustered, through legally enforceable mechanisms" that provide protections equivalent to those provided in clustered subdivisions. The Sierra Club Petitioners attacked the 2003 clustering provisions as being inconsistent with the 2002 Data and Analysis, which emphasize that urban sprawl is a major threat to the County's rural agricultural landscape. The Data and Analysis indicated "a rapid rate of conversion of the rural area to allow low density development," and concluded that "the rural land character is threatened by the piece-meal development of residential uses." Sierra Club places special emphasis on a 1992 report sponsored by the American Farmland Trust, Florida's Growth Management Plans: Will Agriculture Survive?, summarized and discussed in the 2002 Data and Analysis as follows: This report noted that the degree to which rural low density residential zones are effective in conserving farmland is directly related to the minimum lot size required for each residence. The larger the minimum lot size, the more effective the zone is in conserving farmland. The current policy [in the 1991 Plan] allowing residential development on 5 acre lots in the rural area is totally ineffective, according to this report. The minimum lot sizes can be rated as follows according to their effectiveness in conserving farmland: under 4.9 acres totally ineffective 5 to 9.9 acres generally ineffective acres moderately ineffective to 20 acres moderately effective 20.1 to 40 acres generally effective over 40 acres highly effective In the six years, 1995-2000, the average numbers for single family and mobile home permits issued by lot size in unincorporated Alachua County were as follows: Less than 3 acres 162 average yearly 3 to 8 acres 182 average yearly 8 to 12 acres 72 average yearly 12 to 20 acres 35 average yearly Total 20 acres or less 511 average yearly[9/] Relying on the quoted section of the Data and Analysis, Sierra Club argues that only mandatory clustering of subdivisions in the rural area can fulfill the goal of protecting the characteristics and features of the rural area. Sierra Club correctly notes that, in adopting the 2003 Amendments, the County provided no additional data and analysis to demonstrate that the density bonuses added to the Plan would lead to clustering under 2003 FLUE Policy 6.2.9, which eliminated mandatory clustering and simply made it the "preferred design." Sierra Club contends that the County was required to offer some expert testimony to indicate that density bonuses provided in 2003 FLUE Policy 6.2.10 would actually cause landowners to choose clustering. Alternatively, Sierra Club argues that if voluntary density-bonus clustering occurred, it could lead to considerably more dwelling units in rural areas than under the 1991 Plan. For example, if a 20-acre parcel with four 5-acre lots were clustered to leave ten acres of conservation area, then a total of seven units would be permitted for the parcel: four units based on the allowed rural density of one unit per five acres; two units as a bonus for leaving 50 percent of the development in open space; and one additional unit for setting aside ten acres of conservation area. Thus, seven units would be permitted, compared with four units that would have been allowed without the bonuses, and these seven would be situated on the ten unpreserved acres on lots with an average size of 1.43 acres. Sierra Club contends that these "ranchettes" would not meet the objective of maintaining viable agriculture and of providing a separation between urban and rural land uses. Thus, Sierra Club argues that, under any view, the 2003 Amendments are inconsistent with FLUE Objective 6.1: Rural areas shall protect rural and agriculture areas in a manner consistent with the retention of agriculture, open space, and rural character, and the preservation of environmentally sensitive areas and efficient use of public services and facilities. Richard Drummond contended that it is impossible at this point to say that the 2003 Amendments dealing with incentive clustering will not work. He conceded that the density bonuses provided in 2003 FLUE Policy 6.2.10.4 could be too much or not enough, but that the only way to know is to try it in practice, then use the experience to adjust the incentives in future plan cycles. Mr. Drummond credibly testified that given the lack of clustering that occurred under the mandatory provision of the 1991 Plan, it is a virtual certainty that there will be more clustered development under the 2003 Amendments. Sierra Club's criticism that density-bonus clustering will not have a great impact on the density of development in the rural area is well taken, but beside the point. The very 2002 Data and Analysis upon which Sierra Club bases its argument notes that "rural cluster subdivisions are simply an internal transfer of density involving the same number of dwellings." In other words, the chief purpose of clustering is not to affect overall density of development, but to arrange that development on the land in a more environmentally sensitive, aesthetically pleasing way than traditional grid-style platting of lots. The density bonuses offered by the 2003 Amendments will not notably alter the overall density of rural development, but that is not their main purpose. The County hopes that the density bonuses will provide sufficient incentive for developers to avail themselves of the clustering option. The County did not dispute Sierra Club's argument that the 2002 Data and Analysis support the mandatory clustering for all new development that was adopted in the 2002 Plan Update. However, the County does contend that the 2002 Data and Analysis do not require mandatory clustering as the only way to achieve the goals of retaining the rural character and preserving the environmentally sensitive areas of rural lands. The County is correct that the 2002 Data and Analysis provides a generally positive assessment of clustering, but nowhere forces a reader to conclude that mandatory clustering is required. Even accepting the Data and Analysis suggestion that allowing residential development on five-acre lots in the rural area is "totally ineffective" in conserving farmland and that controls show some effectiveness only when the minimum lot size is increased to ten acres, the fact remains that conserving farmland is not the sole value served by the clustering provision, nor should it be the sole measure of the provision's success. In addition to farmland conservation, 2003 FLUE Policy 6.2.9 cites protection of natural and historic resources, minimization of land use conflicts, provision of recreational and habitat corridors through linked open-space networks, achievement of flexibility, efficiency, cost reduction in the provision of services and infrastructure, and reduction of natural hazard risks to life and property as goals of the clustering provisions. While it may be true that lot sizes of more than 40 acres would be "highly effective" in conserving farmland, Alachua County seeks to balance all of the stated goals in its clustering provision and has arrived at a reasonable formula for achieving at least some progress on each of the goals. The County pointed out that Florida Administrative Code Rule 9J-5.006(5)(l) identifies clustering as an "innovative and flexible" planning strategy, but does not mandate clustering. Given the County's history of failure with one form of mandatory clustering, it is not unreasonable that it would attempt the application of an incentive program as an alternative. Urban Cluster/Urban Services Line10/ The 2003 Amendments amended the Future Land Use Map series ("FLUM"), a necessary part of the FLUE pursuant to Florida Administrative Code Rule 9J-5.006(4). FLUE General Strategy 1 provides that the Plan must: Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following: Designate and maintain on the [FLUM] an urban cluster that sets a boundary for urban growth. Provide incentives for higher average densities for residential development and mixed uses in the urban cluster, including density bonus and transfer of development rights. Provide a range of urban residential densities with the highest densities located in or near urban activity centers, and lower densities located in outlying rural areas or areas of the County which have physical limitations to development. . . . The "Urban Cluster" is defined as: An area on the [FLUM] for urban development, which includes residential densities ranging from one unit per acre to 24 units per acre or greater, non- residential development, and is generally served by urban services. The Urban Cluster designation on the FLUM sets a boundary for urban growth in order to maximize the efficient use of available urban infrastructure and to preserve environmentally sensitive areas to minimize urban sprawl. The 2002 Plan Update uses the Urban Cluster to differentiate between urban and rural uses and encourages higher densities in the Urban Cluster in order to use land efficiently. To further the efficient use of land, the 2002 Plan Update also established an "urban services line" ("USL") within the Urban Cluster. FLUE Policy 7.1.3.A describes the USL as follows: In order to phase development for the Urban Cluster and promote efficient use of land and infrastructure and minimize sprawl, an urban services line is designated in the Future Land Use Map series. The line identifies the limits of the area within the Urban Cluster within which phased development shall be promoted through the year 2010. The USL's ten-year planning period, through 2010, is shorter than the planning period for the Urban Cluster, which is through 2020. The purpose of USL is to provide better timing of development within the urban area, to encourage redevelopment and direct new development to areas where infrastructure exists or will be available. The 2003 Amendments expanded the Urban Cluster as part of the FLUM series. The 2003 Amendments also expanded the USL within the Urban Cluster on the FLUM series. The appropriate size for the USL and the Urban Cluster depends on the amount of land needed for projected population growth. FLUE Policy 7.1.3 establishes the process for determining the need for additional developable land to accommodate the projected population as follows: As part of the periodic update of the Comprehensive Plan and any proposed amendments to the Urban Cluster, determine a sufficient and nonexcessive amount of land within the Urban Cluster to accommodate urban uses for a ten year and twenty year time frame. The determination (methodology is shown in Appendix A)[11/] shall be based on a comparison of: a forecast need for land for urban residential and non-residential development based on projected population, average household size, a residential vacancy rate, and a market factor. The market factor for the ten year time frame shall be 2.0. The market factor for the 20 year time frame shall be 1.5. land available in the Urban Cluster for urban residential and non-residential uses. Mapping of environmentally sensitive areas shall be utilized as a factor for determining land availability. If the land comparison shows that the land available is less than the forecast need for land, the following measures shall be considered: revisions to density standards and land development regulations, or other measures, to accommodate greater population within the existing Urban Cluster. coordination with municipalities regarding possible reallocation of forecast need to the incorporated areas. phased expansion of the Urban Cluster. If the forecast need for one type of land use exceeds the supply of land for that particular use, a revision to the allocation of land uses within the Urban Cluster shall be considered before the Urban Cluster is expanded. If this methodology determines expansion of the Urban Cluster is warranted, the evaluation of appropriate location shall be subject to analysis including the following economic, infrastructure, transportation, conservation and recreation criteria: rural character and viable agriculture land and the potential impact of expansion of the Urban Cluster on existing agricultural uses. economic development considerations including affordable housing. relationship to existing and planned future urban services and infrastructure. access to the regional transportation network and multi-modal transportation systems. Conservation and Preservation land uses. planned recreation/open space or greenway systems. Thus, FLUE Policy 7.1.3 provides a three-step process for determining "a sufficient and nonexcessive amount of land" to accommodate urban uses. First, there must be a calculation of the estimated need for land to accommodate the projected population. The second step is to calculate the amount of vacant land currently available for urban residential use. Third, a comparison is made between the need for and the availability of vacant land to determine whether and how the FLUM should be amended. In calculating need, the County built into its formula a safety factor to ensure sufficient land for the future population over the projected time period. The real estate market requires some excess capacity to prevent scarcity-driven price increases, and the County, therefore, included a "market factor" in determining the amount of land that should be designated for development. The 2002 Data and Analysis explained the principle as follows: A market factor is included in the calculation to allow for a measure of flexibility between supply and demand. A sufficient market factor allows flexibility in the siting of development, thereby helping ensure that developers can find locations favored by the market. Market factor is a multiplier used in developing a forecast of future land use needs, specifically housing, to allow for market choice. The market factor results in additional developable land in the urban cluster and thereby can have a positive effect on housing affordability. The market factor also addresses market uncertainty with respect to the accuracy of market predictions, for example if some landowners withhold their land from development. The market factor ensures that enough land is set aside for residential purposes to accommodate these residential support activities-- parks, easements for utilities, churches, to name a few. Across the country the range in factors is as low as 1.15 (Portland, Oregon) to over 2.0 (several Florida locations). Alachua County has used the market factor 2.0 for calculations for the year 2010 and the market factor 1.5 for the year 2020. The County multiplied the number of new dwelling units needed over the 2010 and 2020 planning horizons by the market factors chosen for those periods to arrive at a "total capacity needed" number. The Sierra Club/McSherry Petitioners contended that the market factors chosen by the County were too high and that 1.25 was a more reasonable figure for the County. Mr. Pennock, PRPV's planning expert, testified that there is no "final magic answer" to the question of the market factor number. He stated that 1.25 is a "conservative" market factor, and that 2.0 is a professionally acceptable number. It is found that the County's market factors of 2.0 for the year 2010 and 1.5 for the year 2020 were reasonable, in light of all the evidence. After determining the amount of land needed over the planning horizon, the second step in the County's formula is to determine the amount of vacant land currently available for urban residential use. In order to determine the amount of land currently available, there must be a calculation of the number of units per acre available for future residential development. The two components of this calculation are, first, the number of acres presently within the Urban Cluster or USL, and second, the residential dwelling unit density allowed within that acreage. FLUE Objective 1.3 provides that "[g]ross residential densities shall be established to serve as a guideline for evaluating development in Alachua County." FLUE Policy 1.3.2 classifies the densities as follows: The following classification of gross residential densities shall serve as a standard for evaluating development in Alachua County, unless specific provisions are otherwise provided in the Plan. a. Urban Residential Densities - Areas designated on the [FLUM] for gross residential densities of one unit per acre or greater shall be considered as urban in character. There shall be four gross residential density ranges as follows: Low Density One to Four dwelling units per acre Medium Density Greater than Four to less or equal to Eight dwelling units per acre Medium-High Greater than Eight to less than or equal to 14 dwelling units per acre High Density Greater than 14 to less than or equal to 24 dwelling units per acre The Sierra Club/McSherry Petitioners contend there was already an excess of acres available for development relative to need for the projected population, even before the 2003 Amendments expanded the Urban Cluster and the USL. They point to the 2002 FLUE Data and Analysis, which explained that the need calculations resulted in a finding that there were 7,396 acres available for urban development beyond the projected need in the Urban Cluster through the year 2010, and 4,378 acres beyond the projected need in the Urban Cluster through the year 2020. The 2002 Data and Analysis concluded: "Therefore there is no need in both 2010 and 2020 for modification of the area designated for urban development." Nonetheless, the 2003 Amendments added an additional 434 acres to the Urban Cluster, thereby increasing the available acres for development to 8,370. Richard Drummond explained that the County discovered, after the EAR process and the adoption of the 2002 Plan Update, that some of the population projections for the unincorporated areas were in error. The County also found miscalculations in terms of the existing housing stock. Mr. Drummond stated that the 2002 projections did not reflect the impact that the Plan's new environmental and floodplain policies could have on existing development capacity, or the fact that some private property owners had made it known their land would not be available for development. Mr. Drummond emphasized that the final need projections reflected the methodology that the County chose to employ and conceded that other methodologies could be used to arrive at different projections. The Sierra Club Petitioners have set forth at some length the methodologies they believe should have been employed by the County as regards establishment of the Urban Cluster and USL. At the outset, the Sierra Club Petitioners have challenged the County's methodology for calculating the number of needed dwelling units and corresponding acreage. They contend that the County calculated an excessive amount of acreage based on outdated historical data, rather than on the maximum gross residential densities allowed under the updated Plan. In making its acreage calculations, the County assumed that the low density residential areas would have an average density of 1.6 dwelling units per acre ("DU/acre"). Sierra Club contends that the County placed undue reliance on historical evidence that the density trends in the low density category was 1.34 DU/acre from 1980-1990, and 1.6 DU/acre from 1991-1997, when the County's own EAR provided more recent evidence that the objective of 2.0 DU/acre was being achieved. Mr. Drummond testified that a goal of the 2002 Plan Update was to increase the density of development within the low-density range. Sierra Club contends that using higher densities in the calculations of needed acreage would better support that goal and that the County was, therefore, required to base its calculations of the land presently available to serve the projected need on the maximum available density. The Sierra Club Petitioners argue that basing the projections on historical trends "perpetuates old planning mistakes," and is internally inconsistent with FLUE General Strategy 1's requirement that the Plan provide "incentives for higher average densities for residential development and mixed uses in the urban cluster." They conclude that the maximum available density of 4.0 DU/acre should have been the County's basis for allocating acreage in the low density category, rather than the historically-based 1.6 dwelling units per acre presented by the County. The Sierra Club Petitioners offered a detailed recalculation of the "needed acres" for the Urban Cluster and the USL based on a density of 4.0 DU/acre, rather than 1.6 DU/acre, concluding that Alachua County overestimated the needed land by 2,737 acres in the low-density residential category. They performed a similar recalculation of need in the medium-high and high-density residential categories based on the maximum allowable density, rather than the historic "average density" used by the County. It is not necessary to set out the recalculation here because it is found that the Sierra Club Petitioners failed to demonstrate that the methodology employed by Alachua County to project the acreage needed for development in 2010 and 2020 was so unreasonable as to be beyond fair debate, or that their substituted methodology was correct and accurate beyond fair debate. The Sierra Club Petitioners may be correct in their contention that the Plan's goal of increasing densities in low-density residential developments would be better supported by use of maximum allowable densities in the need projections. There is little doubt that reducing the acreage available for development would force more compact development in the Urban Cluster, but there is no indication that the County's projections present an unreasonable risk of urban sprawl. Both Richard Drummond and Mr. Pennock discussed other Plan goals, such as avoiding a distortion of the real estate market caused by allocating too little land for development, that the Sierra Club Petitioners' methodology arguably does not address or would even subvert. In arriving at its methodology, Alachua County necessarily struck a balance in its priorities. Richard Drummond candidly testified that there were other ways to arrive at the need projections. The Sierra Club Petitioners reasonably disagree with that balance and believe that the community would be better served through tighter controls on expansion of urban development. This is a disagreement to be resolved through the political process and is certainly not beyond "fair debate" for either side of the argument in the context of this administrative proceeding. The Sierra Club Petitioners contend that the "development factor" employed in the calculation of capacity needed within the Urban Cluster and USL also contributes to inflating the estimate. As part of the formula used to calculate the land needed to accommodate the projected population, Alachua County applied a "development factor" of 0.5 to the residential units available on vacant land identified as "strategic ecosystems" or wetland areas, thus halving the available acreage in those areas. The 0.5 development factor was applied in recognition of the Plan's policies requiring that 50 percent of such lands be preserved from development. The Sierra Club Petitioners argue that the County's reasoning ignores FLUE Policy 6.2.10, which allows the landowner to cluster the total number of available residential units for an entire parcel on the developable 50 percent of the property. Thus, while 50 percent of the property is placed in conservation with no dwelling units, the dwelling units for the total acreage can be built on the remaining 50 percent of the property. The Sierra Club Petitioners argue that this methodology leads to an understatement of the acreage available for development and, thereby, underestimates the number of available dwelling units. Mr. Drummond explained that the "development factor" is intended to account for several contingencies. Some property owners might not choose to cluster and, therefore, would not develop the remaining 50 percent at the maximum density. More than 50 percent of some properties might be set aside after their boundaries are ground-truthed.12/ Because of such contingencies, the County decided to adjust the calculations so that its estimate would include the net acreage that would be fully available for development. This rationale could lead to some excess of vacant residential lands if a significant number of the conservation/wetlands properties are developed to their maximum density, but it cannot be deemed wrong beyond fair debate for Alachua County to seek certainty under its formula. FLUE Policy 7.1.3.d, set out in full above, requires the County to evaluate the appropriate location for expansion of the Urban Cluster according to the criteria set forth therein. The Sierra Club Petitioners contend that Alachua County did not provide data and analysis to demonstrate compliance with these locational standards in its 2003 Amendment to the FLUM for the Urban Cluster. The 2002 FLUE Data and Analysis provide that development outside of the USL "must provide a full compliment of urban services." Mr. Drummond testified that because the 2002 Plan Update requires that all new development in the urban area must hook up to central water and sewer services,13/ the 2002 USL was based on proximity to those services, which became "the primary indicator for the rational progression of urban development." The Sierra Club Petitioners have challenged the 2003 Amendments' expansion of the USL to include all land in "common ownership" outside of the parcels on the 2002 FLUM map. According to Mr. Drummond, the common ownership included parcels where there was "a legal relationship between the corporate entities that owned the property." The Sierra Club Petitioners claim that the County "failed to demonstrate that the method of including all parcels within common ownership within the expanded Urban Cluster or [USL] was a professionally acceptable methodology." The Sierra Club Petitioners assert that the effect of this change is to add property within the USL regardless of proximity to existing infrastructure in contravention of 2002 FLUE Policy 7.1.3(d). It is found that the County's recognition of properties under common ownership in setting the USL, where at least part of the property meets all criteria for inclusion within the USL, appears on its face to be a sensible amendment. In this proceeding, the burden was not on the County to demonstrate that its methodology was "professionally acceptable." Rather, the burden was on Petitioners to demonstrate that the methodology did not meet the "fairly debatable" standard of acceptability. Petitioners failed to make that demonstration as to this issue. The Sierra Club Petitioners claim that because the expansion of the USL in the 2003 Amendments was based on availability of central water and sewer, it is internally inconsistent with other provisions of the Plan. FLUE Principle 2 requires the Plan to "[b]ase new development upon the provision of necessary services and infrastructure." FLUE General Strategy 1.f. provides that the Plan should: Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following: * * * f. Time development approval in conjunction with the economic and efficient provision of supporting community facilities, urban services, and infrastructure, such as streets, utilities, police and fire protection service, emergency medical service, mass transit, public schools, recreation and open space, in coordination with the Capital Improvements Element. The Sierra Club Petitioners assert that the County has failed to comply with these provisions because it based the expansion of the Urban Cluster and the USL on only one form of infrastructure, central sewer and water, while ignoring the availability of "supporting community facilities, urban services, and infrastructure" such as schools, police and fire protection, emergency medical service, mass transit, and recreation and open space. The evidence does not support this assertion beyond fair debate. The USL is a timing and phasing mechanism for development within the Urban Cluster over a ten-year planning horizon and is intended to encourage redevelopment and to direct new development to areas where public infrastructure exists or will be available. To the east, the County has located the USL coterminously with the Urban Cluster in order to promote redevelopment in the east Gainesville area. To the west, the USL is located a quarter-mile outward from existing and planned central water and sewer lines, without splitting ownership lines on individual parcels, except that in an area to the southwest near Archer Road, the USL is located a half- mile from existing and planned central water and sewer lines in order to promote this area as a future transit corridor. It is at least fairly debatable that the establishment and location of the USL is supported by appropriate data and analysis and that the County considered other infrastructure factors in drawing the lines of its urban boundaries. Water and Sewer Line Extensions In the 1991 Plan, Potable Water and Sanitary Sewer Element ("PWSSE") Policy 8.2 provided, in relevant part: Proposed extensions of potable water and sanitary sewer lines outside of the urban service area designated by the [FLUE] shall be subject to approval by the Board of County Commissioners. . . . The 2002 Plan Update renumbered the quoted provision as PWSSE Policy 3.5 and changed the term "urban service area" to "Urban Services Line," but otherwise left the text unamended. The 2003 Amendments changed the term "Urban Services Line" to "Urban Cluster." The Sierra Club Petitioners contend that the effect of the latter change is to allow the extension of water and sewer outside the USL, but within the Urban Cluster without the approval of the Board. They point out that the City of Gainesville owns and operates Gainesville Regional Utilities ("GRU") and that Alachua County historically has had little to no control over the pattern of development based on utility service. Mr. Drummond conceded that allowing the utility provider to dictate the pattern of development led to low- density sprawl. Thus, the Sierra Club Petitioners contend that the 2003 Amendment to PWSSE Policy 3.5 weakens the ability of the County to control growth through the phasing envisioned by the USL, because the County has no control over how the growth is "phased" when it lacks control over utilities. The County replies that the 2003 Amendments' change of "Urban Services Line" to "Urban Cluster" merely corrects a scrivener's error. Mr. Drummond testified that the 2002 Plan Update version of PWSSE Policy 3.5, requiring Board approval of water and sewer extensions outside the USL, unintentionally conflicted with FLUE Policy 7.1.3.B, which provides a mechanism for development to occur outside the USL but within the Urban Cluster without Board approval. The 2003 Amendment corrected the error and brought PWSSE Policy 3.5 into harmony with FLUE Policy 7.1.3.B. It is found that the 2003 Amendment to PWSSE Policy 3.5 does not represent a substantive change to the Plan. As to Petitioner's "lack of control" critique, the County responds that the City of Gainesville's Plan calls for coordination with the County's Plan when proposing utility line extensions. Mr. Drummond testified that the City of Gainesville's Plan recognizes that GRU will extend its utility lines in the unincorporated area in a manner consistent with the County's Plan. It is at least fairly debatable that the 2003 Amendments are supported by data and analysis and do not inappropriately delegate planning authority to the City of Gainesville or GRU. 2003 COSE Amendments Strategic Ecosystems The 1991 Plan employed the term "conservation area" to describe properties meriting special protection, including areas with significant geologic features such as springs and caves, wetlands, areas subject to 100-year flooding, and surface waters and their transitional zones. The 2002 Plan Update recognized both "primary" and "secondary" conservation areas. 2002 COSE Policy 3.1.1 provided: Primary conservation areas shall consist of natural resources that, because of their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures to sustain their ecological integrity. These areas shall include: Wetlands; Surface waters; Wellfield protection areas; Listed species habitat; Significant geologic features; and Strategic ecosystems.[14/] "Strategic ecosystem" was a new term added by the 2002 Plan Update and was defined in the 2002 COSE definitions as follows: Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System" (1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida" (2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Golder's "Alachua County Ecological Inventory Project" (1996). 2002 COSE Objective 4.10, not amended in 2003, provides that it is the County's objective to "[p]rotect, conserve, enhance, and manage the ecological integrity of strategic ecosystems in Alachua County." The 2002 COSE Policies implementing Objective 4.10, which were all new to the 2002 Plan Update, provided: Policy 4.10.1 Conserve ecosystems that are determined to be strategic based on an overall assessment of the following characteristics: Natural ecological communities that exhibit: Native biodiversity within or across natural ecological communities. Ecological integrity. Rarity. Functional connectedness. Plant and animal species habitat that is: Documented for listed species. Documented for species with large home ranges. Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering. High in vegetation quality and species diversity. Low in non-native invasive species. Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration. Policy 4.10.2 Strategies shall be implemented through the land use planning and development review process to ensure that each strategic ecosystem is evaluated and protected based on the integrity of the ecological unit. Policy 4.10.3 The County shall create special area plans in cooperation with landowners to establish specific guidelines for strategic ecosystems prior to approval of land use change, zoning change, or development approval. The County shall devise a schedule for creating special area plans, based on current development pressures and anticipated priorities. The County shall create special area plans for each strategic ecosystem, in accordance with the schedule and with the standards under Objective 3.6.[15/] If an applicant seeks development prior to the County's creation of a special area plan for a particular strategic ecosystem, the applicant has two avenues for pursuing development. A special area study may be conducted at the applicant's expense. Alternatively, if the applicant demonstrates that the ecological integrity of the strategic ecosystem will be sufficiently protected, the applicant may proceed according to the clustering provisions in policies under Objective 6.2 of the [FLUE]. Policy 4.10.4 Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans and may include, but are not limited to: Prescribed burning. Control of invasive species. Silvicultural activities according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems. Reduction in the intensity of site preparation activities, including bedding and herbicide application. Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas. Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting. Land acquisition. Policy 4.10.5 Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM]. Policy 4.10.6 The County shall provide regulatory flexibility to facilitate planning across multiple parcels that protects the integrity of the strategic ecosystem as an ecological unit. Existing cluster and PUD ordinances shall be revised to enhance long-term protection of strategic ecosystems. Policy 4.10.7 The County shall work with owners of agricultural and silvicultural lands to retain the ecological integrity and ecological value of strategic ecosystems through management plans and incentives. A management plan shall be required before any activity occurs in a strategic ecosystem that has not been used for agriculture or silviculture within the last 20 years, in accordance with the following: The management plan shall provide for retention of the ecological integrity and ecological value of the strategic ecosystem. The management plan shall be submitted to Alachua County for review and approval by appropriately qualified technical staff. The management plan may be satisfied by Forest Stewardship Council certification, land acquisition, or participation in a conservation program sponsored by the USDA Natural Resources Conservation Service. Passive recreational and ecotourism activities shall be encouraged where consistent with protection of the ecological integrity of the strategic ecosystem. The County shall, through community outreach and collaboration, facilitate participation of landowners in forestry certification programs, land acquisition programs, and federal and state cost-share conservation programs, such as the Environmental Quality Incentive Program, the Conservation Reserve Program, the Wildlife Habitat Incentive Program, and the Farmland Protection Program. Policy 4.10.8 Alachua County shall implement an ordinance that specifically addresses the preservation of strategic ecosystems, significant plant and wildlife habitat, habitat corridors, and vegetative communities. The 2003 Amendments deleted 2002 COSE Policy 3.1.2, which had defined "secondary" conservation areas. The 2003 Amendments amended 2002 COSE Policy 3.1.1, set forth above, by deleting the first word, "Primary." The effect of these amendments is that the policy now simply defines "conservation areas" without distinction as to their being "primary" or "secondary." The 2003 Amendments also deleted "Wellfield protection areas" from the definition of "conservation areas," replacing it with "100-year floodplains." Finally, the 2003 Amendments changed the definition of "strategic ecosystem" to read: Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System"(1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida"(2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Sites that are identified in the KBN/Golder's Associates report, "Alachua County Ecological Inventory Project" (1996). The 2003 Amendments amended the 2002 COSE Policies implementing Objective 4.10 as follows: Policy 4.10.1 Conserve strategic ecosystems that are determined through ground-truthing using the KBN/Golder report as a guide to be strategic maintain or enhance biodiversity based on an overall assessment of the following characteristics: Natural ecological communities that exhibit: Native biodiversity within or across natural ecological communities. Ecological integrity. Rarity. Functional connectedness. Plant and animal species habitat that is: Documented for listed species. Documented for species with large home ranges. Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering. High in vegetation quality and species diversity. Low in non-native invasive species. Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration. The Alachua County 2001 digital orthophotographic series (for purposes of this policy, the date of this photography is March 1, 2001) shall presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy. The County shall adopt land development regulations that set forth additional guidance for the determination of whether and the extent to which strategic ecosystems exist on a property. * * * Policy 4.10.4 Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans or cluster developments and may include, but are not limited to: Prescribed burning. Control of invasive species. Silvicultural activies according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems. Reduction in the intensity of site preparation activities, including bedding and herbicide application. Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas. Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting. Land acquisition. * * * Policy 4.10.5 Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM]. Policy 4.10.5 Each strategic ecosystem shall be preserved as undeveloped area, not to exceed 50% of the upland portion of the property without landowner consent and in accordance with the following: Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 50% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation. This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 and 4.5, respectively. This limitation shall not restrict in any way state and federal agency protections. The remaining Policies implementing 2002 COSE Objective 4.10 were not amended by the 2003 Amendments. Thus, the definition of "strategic ecosystem" was amended from an identification of sites based upon the characteristics of their ecological communities to a question of whether a given property is found on a "strategic ecosystems" map sourced from the "Alachua County Ecological Inventory Project" prepared by KBN/Golder Associates (the "KBN/Golder Report"). In 1986, the County retained the Gainesville firm of KBN Engineering and Applied Sciences, Inc. ("KBN") to conduct a survey of potential ecologically significant upland properties. The purpose of the survey, completed in 1987, was to provide information on important upland sites for planning purposes, principally to complete the Conservation Element of what would become the 1991 Plan, and to assist the Alachua County Conservation and Recreation Areas Task Force in greenbelt planning. In November 1996, the County commissioned KBN, now a subsidiary of Golder Associates, to produce the KBN/Golder Report, which built upon the 1987 survey to compile the most extensive study to date of ecological communities in the County. The stated purpose of the KBN/Golder Report was to "identify, inventory, map, describe, and evaluate the most significant biological communities, both upland and wetland, in private ownership in Alachua County and make recommendations for protecting these natural resources." A total of 47 sites were identified and ranked based on their quality of vegetation and landscape ecology, their status as habitats for endangered species and wildlife in general, their hydrology, and their management potential. The 1996 KBN/Golder Report was more comprehensive than its predecessor study in that it covered a larger area, evaluated wetlands as well as uplands, and included mapping of ecological connections and biological communities. KBN/Golder accumulated and evaluated a wide range of data in the process of preparing the Report including: the 1987 KBN survey; a 1995 set of infrared aerial photographs provided by the St. Johns River Water Management District ("SJRWMD"), as well as a 1986 set of infrareds provided by the Alachua County Department of Environmental Services; a 1994 set of black and white aerial photographs provided by the Alachua County Property Appraiser's Office; Florida Fish and Wildlife Conservation Commission ("FFWCC") habitat distribution maps; SJRWMD wetlands vegetation maps; Florida Natural Areas Inventory natural community/plant community classification categories; and SJRWMD and Suwannee River Water Management District Floridan Aquifer recharge maps. The KBN/Golder Report described its methodology and limitations as follows: The inventories were done by David Clayton and Bob Simons, working separately. Landowners were contacted where access was necessary for the survey work, and those lands where access was denied were inventoried using aerial photographs, outside sources of information, and whatever information could be obtained by observations from the property boundary. Initially, a review was made of the USGS topographic quadrangle maps (various dates) and aerial photographs... to determine access, location of communities, drainage features, and karst features. Next, vehicle or pedestrian surveys of all accessible areas were used to get an overall view; to discern as many biocommunities as possible; to look for exotic species, listed species, or signs of habitat for listed species; and to evaluate the overall wildlife habitat and the condition of the communities. Specific sites were chosen to inventory in more detail. Limitations for this survey were the large number of sites, the vast acreage, and the restricted time available. Thousands of acres on 47 sites were surveyed within 8 weeks, necessitating limited survey time on the larger sites. Terrestrial species were emphasized because 90 percent of the area surveyed is terrestrial. The Jonesville Petitioners contested the validity of the 2003 Amendments regarding strategic ecosystems on several grounds. Common to all these grounds is a disagreement on the meaning of the strategic ecosystems definition and its interplay with COSE Objective 4.10 and its implementing policies, as amended by the 2003 Amendments. The Jonesville Petitioners argue that defining the term "strategic ecosystem" by way of the map in the KBN/Golder Report is fatally flawed because it provides no flexibility. If a property is identified on the KBN/Golder Report map, then it is a strategic ecosystem subject to the restrictions of COSE Objective 4.10, without regard to the facts on the ground. The definition makes no provision for ground-truthing the property prior to inclusion in the strategic ecosystem category. The County responds that 2003 COSE Policy 4.10.1 provides for more detailed identification of strategic ecosystems through ground-truthing, using the KBN/Golder Report as a guide. 2003 COSE Policy 4.10.1 also provides that the County's LDRs will provide additional guidance to determine whether and to what extent, strategic ecosystems exist on a property. The Jonesville Petitioners answer that there is a fundamental conflict in the policy's purported use of the KBN/Golder Report as a "guide" to delineating strategic ecosystems, when the definition provides that identification on the KBN/Golder Report is all that is required to establish a property as a strategic ecosystem. Subsequently adopted LDRs cannot provide guidance as to whether strategic ecosystems exist on a property; by definition, the KBN/Golder Report map determines whether there are strategic ecosystems. The Jonesville Petitioners argue that the only correct way to take a property out of the strategic ecosystem category would be to amend the adopted KBN/Golder Report map, thus amending the definition of "strategic ecosystem." The Jonesville Petitioners' argument fundamentally concedes that, if the definition were to provide for ground- truthing based on the characteristics set forth in 2003 COSE Policy 4.10.1, it would be unexceptionable. However, they point out that 2003 COSE Objective 4.10 and its policies apply to all "strategic ecosystems," that "strategic ecosystems" are also subject to regulation as "conservation areas" under COSE Policy 3.1.1, and that the ground-truthing provided by 2003 COSE Policy 4.10.1 does nothing to change the definition. Under this definitional scheme, a landowner whose property is identified on the KBN/Golder Report map can do nothing to take his property out of the strategic ecosystems definition, short of petitioning the County to amend its Plan, and is subject to all COSE provisions dealing with strategic ecosystems. The undersigned agrees with the Jonesville Petitioners that the County would have been better served to refine its definition of "strategic ecosystem" to include the standards set forth in 2003 COSE Policy 4.10.1. The undersigned does not agree that the County's failure to do so invalidates the definition under the "fairly debatable" standard, given the County's interpretation of the interplay among the applicable policies. By using the KBN/Golder Report map to set the boundaries of strategic ecosystems, the County attempted to delineate reasonably large, contiguous areas, rather than create a "swiss cheese" pattern of intermixed conservation and non-conservation lands; i.e., designating isolated pockets of conservation within a large non-conservation area, or vice versa. The County made a general determination that strategic ecosystem site boundaries should be delineated with simple straight lines, rather than by the edges of land features, such as vegetative cover. The County reasonably decided that a straight boundary, such as a section line is easier to administer and more easily communicated to the public than a natural feature such as vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that under this approach, strategic ecosystems would include some areas neither particularly environmentally sensitive, nor valuable as habitat. 2003 COSE Policy 4.10.1 provides for ground-truthing to further refine the delineation of the boundaries of the strategic ecosystem properties to more specifically identify the most environmentally sensitive portions of the property and to assist in the determination of appropriate protection measures. Under the COSE Objective 4.10 policies, set forth in full above, the County will use the KBN/Golder Report map and the more detailed information provided by additional ground-truthing to identify the least environmentally sensitive portion of the strategic ecosystem property, so that any development can be directed and clustered there, and away from the most environmentally sensitive portion of the property. The landowner will retain the right to transfer the same number of residential units as allowed by the density limits of the underlying land use classification to the least sensitive portion of the property, notwithstanding the strategic ecosystems designation. The County's explanation of the interplay among the Plan provisions effectively addresses the concerns of the Jonesville Petitioners regarding "erroneously mapped" parcels, i.e., parcels that are identified on the KBN/Golder Report map, but that, in fact, are not environmentally sensitive. The Jonesville Petitioners are technically correct that because identification on the KBN/Golder Report map defines a property as a strategic ecosystem, subsequent ground-truthing does nothing to remove the property from that definition. However, the Jonesville Petitioners' argument depends on a reading of the Plan that is not merely literal, but blinkered. One must accept that the definition is absolutely controlling and that if a property is on the KBN/Golder Report map, then every individual plan provision referencing "strategic ecosystem" will apply to the property regardless of the natural characteristics found on the ground. A fair reading of the 2003 Amendments makes it clear that the definition of "strategic ecosystem" is the beginning of the analysis, not the end. The County acknowledged that, while the data on the KBN/Golder Report map are professionally accepted for general planning purposes, the data are not detailed enough for regulatory purposes on the level of individual parcels. Thus, once the map designates a property as a strategic ecosystem, 2003 COSE Policy 4.10.1 requires ground- truthing to determine whether and to what extent that strategic ecosystem is subject to conservation. Later adopted LDRs will provide additional guidance "for the determination of whether and the extent to which strategic ecosystems exist on a property." This treatment is similar to that found in 2002 COSE Policy 3.3.4 regarding conservation and preservation areas on the FLUM generally: Site Specific Delineation: The parcel- specific boundaries of preservation and conservation areas shall be verified by ground surveys conducted in the course of special studies or development review. County-initiated mapping efforts shall be performed at the County's expense, except when an applicant seeks land use change, zoning change, or development approval prior to the completion of the County's mapping efforts, consistent with [COSE] policies 3.4.2 and 4.10.3. Conservation policies shall be applied based on the resulting site specific delineation. The referenced 2002 COSE Policy 3.4.2 provides: Where site specific analysis or verification is required to determine the presence of natural resources protected under this Element, the cost of such analysis or verification shall be borne by the applicant. The Jonesville Petitioners contend that there is an internal inconsistency in the fact that the definition of strategic ecosystem does not include the criteria found in 2003 COSE Policy 4.10.1. However, the parameters used by KBN/Golder Report to score and rank the sites that appear on the map include: vegetation value (species diversity, presence of exotics); endangered species habitat value (plant and animal); wildlife habitat value; hydrology; landscape ecology (community diversity, ecological quality, community rarity, functional connectedness); and management potential. These parameters are consistent with the characteristics listed in 2003 COSE Policy 4.10.1. The Jonesville Petitioners point out that the design of the KBN/Golder Report map was such that no parcel less than 20 acres in size was identified, resulting in the omission of thousands of acres countywide that possess the characteristics identified in 2003 COSE Policy 4.10.1 as indicative of strategic ecosystems. The Jonesville Petitioners claim that this presents an internal inconsistency in the Plan, because the COSE policies would protect only 25 percent of those unmapped properties (under 2003 COSE Policy 4.9.12 addressing upland habitat), rather than the 50 percent protected by the strategic ecosystems policies. This alleged inconsistency is simply another example of the County's reasonable policy choice to focus its conservation efforts on larger, more contiguous properties, rather than a myriad of small-acreage lands. Even the 2002 definition of "strategic ecosystem," not challenged by the Jonesville Petitioners, limited strategic ecosystems to properties greater than 20 acres in size. The smaller sites will remain subject to regulation on a site-specific basis as they are proposed for development. The Jonesville Petitioners appear to insist, absent any pending development applications with the County or even any present plans to develop, on their right to have the Plan and its incorporated maps provide them with a definitive, binding delineation of their properties and, thus, their development potential. This claim is unrealistic, given that such a general right would require County staff to ground- truth hundreds of thousands of acres countywide before a conservation land use category could be established at all. The KBN/Golder Report map is sufficient to place landowners, such as the Jonesville Petitioners, on notice of their need to inquire as to the status of their properties prior to the initiation of development activities. Parcel- specific regulation requires parcel-specific ground-truthing, and 2003 COSE Policy 4.10.1 provides for such ground-truthing. Further, 2003 COSE Policy 4.10.3 provides that the County will create special area plans for strategic ecosystems "based on current development pressures and anticipated priorities." It further provides that an applicant in the position of the Jonesville Petitioners may pay for its own special area plan, should it not wish to wait on the County to complete its plan process. Finally, the Jonesville Petitioners attack 2003 COSE Policy 4.10.1's use of the Alachua County 2001 digital orthophotographic series dated March 1, 2001, to "presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy." They contend that it is uncertain how the County will treat properties on which the owners have altered ecosystems in the period between the 2001 orthophotographs and 2003 adoption of the new COSE policies and that the policy would have a retroactive impact of dubious constitutionality if the County were to require restoration of those properties to their 2001 state. This valid concern of the Jonesville Petitioners is prematurely raised in this proceeding. The evidence at hearing failed to demonstrate that the County would not allow a landowner to provide information through the development review process to demonstrate that the condition of the property had changed after March 1, 2001, and prior to the effective date of the 2003 Amendments. In summary, it is found that the mere fact that the County determined that the definition of "strategic ecosystem" shall consist of the identification of properties on the KBN/Golder Report map is a fairly debatable decision, given the manner in which that definition is put into effect through amended COSE Objective 4.10 and its implementing policies. The Jonesville Petitioners entered reports prepared by their environmental consultant concerning particular properties and their unsuitability for designation as strategic ecosystems and presented extensive testimony on the subject. The County presented testimony as to each of the Jonesville Petitioners' properties to support the County's contention that they are indeed strategic ecosystems. Each of the Jonesville properties is a small portion of a much larger parcel on the KBN/Golder Report strategic ecosystems map. It is unnecessary to make detailed findings of fact as to the environmental quality of these properties. As the findings above indicate, the appropriate time to consider the qualities of particular properties will be during the special area planning process and/or the development review process.16/ Uplands Habitat 2002 COSE Objective 4.9, titled "Biodiversity," provides: Maintain and enhance plant and animal species diversity and distribution within Alachua County by protecting significant plant and wildlife habitats, providing for habitat corridors, and preventing habitat fragmentation. The 2002 Plan Update provisions implementing COSE Objective 4.9 provided as follows: Policy 4.9.1 A critical portion of each significant plant and wildlife habitat type in Alachua County shall be protected. Protection shall be accomplished using all available methods, including land acquisition, incentives and requirements for the provision of conservation or preservation areas, habitat corridors, greenways, and common open space. Policy 4.9.2 During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site. The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. Conserved habitat shall be located and maintained in areas with intact canopy, understory and groundcover in functional, clustered arrangement which maximizes use by wildlife and maintains the long-term viability of native upland plant communities. Linkages to habitat corridors and greenways shall be required where available. The County shall have the authority to accept alternatives to onsite conservation that provide for the long-term protection and management of significant plant and wildlife habitat of equal or greater habitat value that would not have otherwise been preserved. The land development regulations shall establish criteria for determining which projects warrant the use of alternatives to onsite conservation. Criteria may include but are not limited to: the size of the development site, habitat quality, uniqueness, connectivity, management opportunities, and adjacent uses. Off-site conservation shall not be permitted for listed species habitat that is capable of being managed or restored on- site as a high quality natural plant or animal community or communities. This requirement is not intended to limit the effect of other resource-specific protective measures in this element, such as clustering and buffers. Policy 4.9.3 The County shall require the development and implementation of management plans for all significant plant and wildlife habitat that is to be protected. The management plan shall be prepared at the expense of the developer by an appropriately qualified professional and provide for the following: Removal of invasive vegetation and debris. Replanting with native vegetation as necessary. Maintenance of biodiversity, with special emphasis on protection of listed plant and animal species. Any additional measures determined to be necessary to protect and maintain the functions and values of the habitat conservation areas while ensuring protection from wildfire. Policy 4.9.4[17/] The County shall consult with the Florida Fish and Wildlife Conservation Commission, United States Fish and Wildlife Service, Florida Department of Agriculture and Consumer Services or other appropriate agencies prior to authorizing development that could result in potential adverse impacts to any listed species. The County shall utilize these recommendations to provide specific requirements regarding development where these species are encountered. Conditions of approval shall ensure the maintenance and, where feasible and appropriate, increase the abundance and distribution of populations of listed species. Policy 4.9.5 The use of listed plant and wildlife species habitat shall be restricted to that which is compatible with the requirements of listed species. Development activities[18/] that would threaten the life or habitat of any listed species shall not be permitted. Policy 4.9.6 The County shall prohibit the alteration of natural shorelines or degradation of water quality where listed species feed or breed, through the establishment of buffers as set out in [COSE] Policy 3.6.8. The County shall encourage the restoration of degraded shorelines when possible. Policy 4.9.7[19/] The County shall periodically review monitoring data from federal, state, regional, and local agencies to determine the status of listed species habitats in Alachua County. The County shall use this information to maintain and provide, for the convenience of the public, a table of listed species and listed species habitats in Alachua County. Policy 4.9.8 The County shall recommend specific management and recovery strategies for listed species, as they are developed by the Florida Fish and Wildlife Conservation Commission and the U.S. Fish and Wildlife Service, and shall assist in their implementation. These management techniques shall be incorporated into the land development regulations, as well as the management plans of County-owned preservation areas. Policy 4.9.9 Wildlife habitat enhancement and management programs in urban areas shall be promoted through such techniques as designation of bird sanctuary areas where rookeries or other significant bird populations exist and landscaping schemes for stormwater detention and retention areas that maintain native vegetation and establish littoral zones which encourages wildlife usage. Policy 4.9.10 The County shall develop incentives designed to encourage private land owners to manage land holdings for wildlife attributes. Policy 4.9.11 The County shall establish and preserve habitat corridors that connect significant plant and wildlife habitats throughout the County. The County shall perform an objective analysis to determine the appropriateness of habitat corridors, how extensive they should be, the location of potential corridors, what fiscal resources are available for implementation, and economic incentives for property owners to voluntarily participate in formation of a habitat corridor program. The 2003 Amendments changed 2002 COSE Policy 4.9.2 as follows: During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site, subject to the limitation in 4.9.12. The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. . . . The 2003 Amendments added a new COSE Policy 4.9.12, which reads as follows: Policy 4.9.12 Upland habitat protections under Objective 4.9 shall be limited as follows: No more than 25% of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent. Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 25% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation. This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 [Flood Plains and Floodways] and 4.5 [Groundwater], respectively. This limitation shall not restrict in any state and federal agency protections. For purposes of applying this limitation, a property shall include all contiguous land under common ownership or control. Properties may not be disaggregated, processed in piecemeal fashion, reviewed or developed in any manner that results in lesser upland protections than would otherwise be required under this Objective. The Sierra Club Petitioners challenged these uplands policies on several grounds. The 2002 Plan Update, as amended in 2003, provides two kinds of protection to uplands. The most highly protected upland is one established as part of a strategic ecosystem. Under 2003 COSE Policy 4.10.5, up to 50 percent of the upland portion of a strategic ecosystem can be preserved as undeveloped area without the landowner's consent. A lesser level of protection is afforded to "significant plant and wildlife habitat." The 2002 Plan Update defines "significant habitat" as "contiguous stands of natural upland plant communities which have been documented to support, and which have the potential to maintain, healthy and diverse populations of plants or wildlife." Under 2003 COSE Policies 4.9.2 and 4.9.12, up to 25 percent of the upland portion of "significant plant and wildlife habitat" may be set aside for preservation without the landowner's consent. Neither the strategic ecosystems provision nor the significant plant and wildlife habitat provision purports to restrict or lessen any protections afforded by state or federal law. The Sierra Club Petitioners complain that the 2003 Amendments modify the categories and levels of upland protection which had been adopted in the 2002 Plan Update, that these modifications weaken the environmental protection provided to upland vegetative communities and habitats, and that the modifications are based on legislative settlement of the 2002 administrative challenge, not on any science or new data or analysis. The 2002 Plan Update was supported by the 1998 EAR and the 2002 Data and Analysis documents. On December 10, 2002, during the settlement process that culminated in the 2003 Amendments, Alachua County's environmental protection director, Chris Bird, produced a memorandum titled "Response to Questions Raised on Conservation Issues in the 12/2/02 Special [Board] Comp Plan Meeting," referred to hereinafter as "the Bird Memo." As of December 2, 2002, mediation had commenced in the 2002 administrative challenge, but the parties had yet to crystallize their respective positions into what would become the 2003 Amendments. As indicated by its full title, the Bird Memo contains the County staff's explanation of the basis for the conservation policies in the 2002 Amendments. The memo sets forth citations to and quotes from the 2002 Data and Analysis, and supplements this with its own comments on the propriety or necessity for the changes to the 1991 Plan made by the 2002 Amendments. The Sierra Club Petitioners point out that the Bird Memo offers a clear explanation as to how the 2002 Plan Update was based on the 1998 EAR and the 2002 Data and Analysis. They contend that there is no equivalent documentation in the record of this case that explains how the 2003 Amendments were based on the Data and Analysis. In answer to the question, "What's wrong with the old [1991] Comprehensive Plan and why do we have to change it?," the Bird Memo stated: Of 70 measurable objectives set forth for the Conservation portion of the [1998] EAR, less than a third of those objectives were met without caveat. At least 10 objectives were not met, and another 40 objectives were only partially met, met in limited fashion, or were in need of revision/update. The Bird Memo noted that the 1998 EAR made the following recommendations under the heading, "Permitted Uses in Conservation Areas": Review and revise requirements for development in ecologically sensitive/environmentally significant areas. Using the PUD[20/] or a modified Cluster Ordinance, consider the following modifications at a minimum: (1) modify the comprehensive plan to include additional natural communities identified in the 1996 ecological inventory [i.e., the KBN/Golder study]; (2) require clustering for all development and eliminate the 20-acre parcel threshold; (3) require stricter long-term protection for Conservation areas and significant natural communities; (4) increase the 50% minimum set-aside; (5) include incentives/requirements for permanent set-aside arrangements. The Bird Memo went on to set forth staff's recommendation as to what "stricter long-term protection for conservation areas and significant natural communities" necessitates for "significant habitat": Significant habitat is defined in the [2002] Comprehensive Plan update as contiguous stands of natural upland plant communities that support and maintain healthy and diverse populations of plants or wildlife. Sandhill and xeric hammock are two examples. Industrial pine plantations are not significant habitat because they are not natural communities. FAC 9J-5 requires that the Conservation Element include objectives and policies that conserve and protect native vegetative communities and wildlife habitat from destruction by development activities. The Plan update approaches this protection at two scales: strategic ecosystems are important at a larger geographical scale; significant habitat and listed species habitat are important at smaller scales. The purpose is to identify and protect natural systems and their fundamental building blocks before they are in the "emergency room" at the brink of crisis, when they can still be preserved for the future in healthy form. To accomplish this, the largest remaining wild areas are afforded the greatest protection (80% preservation of strategic ecosystems), while the smaller but significant natural habitat areas are afforded lesser but still meaningful protection (25% preservation of significant habitat). There is no percentage associated with listed species habitat protection, but protection is determined on a case-by-case basis depending on species and site characteristics. The requirement for 25% preservation of native habitat is clearly less than what is needed to stop habitat and species declines, but represents a compromise.[21/] This percentage was chosen in order to provide for the conditions necessary to preserve some degree of ecological integrity while accommodating the needs of development. . . . The Sierra Club Petitioners concede that some of the quoted conservation recommendations were adopted in the 2003 Amendments, e.g., the map of the KBN/Golder Report inventory lands was adopted as the initial definition of strategic ecosystems and incentives for clustering are provided. However, they contend that most of the staff's conservation recommendations are not reflected in the 2003 Amendments, e.g., clustering is not required for all development in ecologically sensitive and/or environmentally significant areas; the 20-acre parcel threshold for ecosystem protection is not eliminated; 50 percent minimum set-asides are not increased; species on the Florida Natural Areas Inventory ("FNAI") endangered species list but not on federal or state lists are not protected in wetland buffers; the recommended minimum default buffer is not used; and no minimum protection is required for either listed species habitat or significant habitat. The Sierra Club Petitioners contend that the 25 percent maximum upland preservation introduced by 2003 COSE Policy 4.9.12 destroys the impact of 2002 COSE Policy 4.9.5, which under the 2002 Plan Update would have protected the habitat of any "listed species" on a case-by-case determination of what was reasonable and necessary for the species on the particular site, apparently without regard to the amount of a given tract that would be turned over to preservation against the wishes of the landowner. "Listed species" is defined in the 2003 Amendments as: Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g., they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction. This contention is rejected because it neglects to factor in the express limitation expressed in 2003 COSE Policy 4.9.12.c. that the 25 percent limitation "shall not restrict in any way state and federal agency protections." Such "protections" include federal and state listed species protections, meaning that the 25 percent limitation cannot function as a brake on listed species protection. The Sierra Club Petitioners make too much of the distinction between 2002 COSE Policy 4.9.2's language, "All developments shall protect as conservation or preservation areas a minimum of 25 percent of the significant plant and wildlife habitat that occurs on site," and 2003 COSE Policy 4.9.12's language, "No more than 25 percent of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent." They appear to assume that the former provision would allow the County to impose draconian development limitations without regard to the property rights of landowners. In the undersigned's view, the distinction is not so great, particularly in light of 2002 COSE Policy 4.9.2.1's direction to the County to "work with the landowner to select the portion of the habitat that will be included in the 25% set aside." (Emphasis added.) The express reference to a "25% set aside" indicates that Alachua County did not anticipate forcing landowners to cede more than that amount of their property even under the 2002 Plan Update. It is found that the Sierra Club Petitioners overstate the necessary impact of the Bird Memo as "Data and Analysis." Florida Administrative Code Rule 9J-5.005(2), indeed, requires that plan amendments be "based upon relevant and appropriate data," and further explains that to be "based on data" means "to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." However, the Sierra Club Petitioners essentially contend that the Board was bound to enact each recommendation of the Bird Memo in every particular or stand in violation of Florida Administrative Code Rule 9J-5.005(2). To accept this contention would be to make the elected officials of Alachua County subservient to their own hired staff, an exact reversal of the comprehensive planning process. It is found that the County has reacted to the data and analysis of the Bird Memo "in an appropriate way and to the extent necessary indicated by the data." There is no question that the 2002 Plan Update, as amended by the 2003 Amendments, for the first time "establish[es] an integrated approach to the protection of natural communities and their associated values in Alachua County," in contrast to the fragmented approach of the 1991 Plan. See COSE Data and Analysis, Biodiversity, p. 38. The 2003 Amendments address and, to some degree, adopt every element raised by staff in the Bird Memo. The 2003 Amendments do not adopt the terms of the Bird Memo to the letter as urged by the Sierra Club Petitioners, but the County was not required to do so. It is at least fairly debatable that the COSE uplands policies are supported by data and analysis and provide adequate guidance for the development of LDRs. Wetland Buffers Under the 1991 Plan, standards for natural vegetative buffers around surface waters and wetlands consisted of a minimum 75-foot buffer for Outstanding Florida Waters and a 35-foot buffer for all other surface waters and wetlands. The 2002 Plan Update's version of COSE Policy 3.6.8, referenced in Policy 4.9.6 above, provided detailed new buffer requirements as follows: Policy 3.6.8 Development occurring along the edges of conservation and preservation areas shall be designed to protect and minimize the impact of development on conservation areas through the use of natural vegetative buffers. Buffer width shall be determined on a case-by-case basis depending on what is demonstrated to be scientifically necessary to protect natural ecosystems from significant adverse impact. This determination shall be made in consideration of at least the following factors: Type of development and associated potential for adverse site-specific and off-site impacts; Natural community type and associated hydrologic or management requirements; Buffer area characteristics and function; Presence of listed species of plants and animals. Absent scientific information which demonstrates that a larger or smaller buffer width is appropriate, the following buffer widths shall apply for the resources set forth in the table below. Protected Resource Buffer Distance (feet)** Surface waters and wetlands that do not include the resources listed below 75* Outstanding Florida Waters 200* Areas where listed plant or animal species have been documented within 300 feet of a surface water or wetland 300* from the surface water or wetland Public water supply well 200 * Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000. ** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4. Buffers shall be measured from the outer edge of the protected resource. The 2003 Amendments made no changes to the text of COSE Policy 3.6.8, but changed the table of buffer widths as follows: Protected Resource Buffer Distance (feet)** Surface waters and wetlands less than or equal to 0.5 acre that do not include OFWs or listed animal species as described elsewhere in this table 50 average, 35 minimum Surface waters and wetlands greater than 0.5 acre that do not include the resources listed below OFWs or listed animal species as described elsewhere in this table 75* 75 average, 50 minimum Areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species listed plant or animal species have been documented within 300 feet of a surface water or wetland 300* from the surface water or wetland 100 average, 75 minimum Outstanding Florida Waters (OFWS) 200* 150 average, 100 minimum Public water supply well 200 * Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000. ** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4. The referenced COSE Policy 3.6.5, introduced in the 2002 Plan Update and not amended in 2003, provides: Development on land that includes conservation areas shall be sited and designed according to the following standards and consistent with policies under Objective 6.2 [Rural/Agriculture] of the [FLUE] in the rural area: The preservation of conservation areas shall be required on all development sites to the greatest extent possible, consistent with standards which are outlined subsequently in [the COSE]. Density or intensity shall be transferred from conservation areas to non- conservation portions of the property, to adjoining property under common ownership or management and within a unified development, or to other development receivership areas, at a rate consistent with that of the underlying zoning district, but not to exceed the maximum density allowed by the land use designation. When there are no non-conservation areas to which density or intensity may be transferred, the development shall be clustered in the portion of the site that will result in least environmental impact. When connection to central sewer is not required, septic wastes shall be disposed of according to the Comprehensive Plan, land development regulations, and health department standards, and without adversely affecting ecosystem health. Existing landscape connections to other conservation areas shall be maintained so that fragmentation is avoided. The referenced COSE Policy 4.6.6, under Objective dealing with "Surface Water Systems," was introduced in the 2002 Plan Update, was not amended in 2003, and provides: The following activities may be allowed within the buffer subject to standards that regulate environmental impacts: Agricultural and silvicultural operations consistent with Objective 5.5 [Agricultural and Silvicultural Practices]; Water dependent facilities; Minimal impact activities; Activities that serve the overriding public interest; and Development allowed through implementation of [COSE] policy 3.6.5.3, provided that the development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. 175. The referenced COSE Policy 4.7.4, under Objective dealing with "Wetland Ecosystems," was introduced in the 2002 Plan Update and amended in 2003 as indicated below: Development activity shall not be authorized in wetlands or wetland buffers except when all of the following conditions are met: The applicant has taken every reasonable step to avoid adverse impact to the wetland and buffer; and The applicant has taken every reasonable step to minimize adverse impact to the wetland and buffer; and The applicant has provided appropriate mitigation for adverse impact to the wetland and buffer; and The applicant shows that one of the following circumstances applies: Minimal impact activity; or Overriding public interest; or All economically beneficial or productive use of the property is otherwise precluded. The development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. Notwithstanding the above, mitigated impact may be allowed to any isolated poor quality wetland that is less than 0.25 acre in size, provided the total impact area is not greater than or equal to 0.25 acre per development. Poor quality shall be defined in the land development regulations based on factors relative to ecological value. The 2002 Data and Analysis clearly concluded that the 35-foot buffers in the 1991 Plan were inadequate to protect the natural functions of the affected wetlands. The Bird Memo summarized the data as follows: The Conservation/Aquifer Recharge portion of the EAR, as well as the data and analysis supporting the Comprehensive Plan update, are replete with documentation of the inadequacy of the current 35-foot buffer for wetlands and surface waters in Alachua County. Inadequacy is demonstrated by documentation of at least the following nine facts: (1) the direct loss of the extent and quality of wetlands, (2) the degradation of wetland functions, (3) no change in declining water quality trends since implementation of 35-foot buffers, high sediment loads in surface waters, elevated nutrient concentrations in surface waters, groundwater, and springs, poor surface water systems health documented by macroinvertebrate sampling, poor hydrology, including lake drawdown problems, (8) the continued loss, degradation and fragmentation of wildlife habitat in Alachua County, and (9) the decline of native species concurrent with the spread of invasive non-native species. The Bird Memo also contained appendices that included 11 pages of specific citations from the Data and Analysis discussing the inadequacy of the 35-foot buffers and supporting larger buffer widths. The buffers in 2002 COSE Policy 3.6.8 were based on the Data and Analysis in the 2000 Jones, Edmunds & Associates, Inc., report titled "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," ("JEA Report"). The Bird Memo summarized the JEA Report's findings and Alachua County's response, as follows: Upland vegetative buffers are widely regarded as necessary to protect wetlands, streams, and other aquatic resources. However, buffer size requirements typically have been established by political acceptability, rather than scientific merit. This often leads to insufficiently buffered aquatic resources and the false perception that the resources are being properly protected from potential impacts. Numerous scientific studies have shown that relatively wide buffers (150 to more than 300 feet) are necessary to protect wetlands. (JEA et al. 2000) A dilemma exists. Undersized buffers may place aquatic and wetland resources at risk, while buffers that are sufficiently large to provide full protection may unrealistically deny landowners use of their land. Therefore, it is important to determine the minimum buffer width necessary for protection of most of the resources, or the most sensitive of the resources. Three goals have been identified and used to determine buffer sizes: protection of wildlife habitat; minimization of sediment transport into wetlands; and minimization of groundwater drawdown in wetlands. The JEA report (2000) concludes that a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem. A 300-foot buffer would protect approximately 50% of the wetland-dependent wildlife species in freshwater wetlands, and protect water quality from sedimentation by course [sic] and fine sands. In some site-specific cases, such as with silt or clay soils, or from large draw-down structures, a greater buffer distance would be necessary to protect the wetland. Any reduction in the buffer width below 300 feet can impose adverse impacts to the wetland, particularly to the wetland- dependent wildlife species that require a wide surrounding upland area in which to feed, forage, and use as protection from human disturbance. Lesser alternatives would still provide some protection to wetlands; however, any reduction can result in adverse impacts to wildlife populations, as well as degradation of water quality from deposition of fine sediments. The County has chosen an alternative to one large buffer distance. This alternative is intended to provide flexibility while accommodating private property concerns. The Sierra Club Petitioners emphasize the JEA Report's conclusion that "a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem." They note that the language of 2003 COSE Policy 3.6.8.2 provides that "[a]bsent scientific information which demonstrates that a larger or smaller buffer width is appropriate," a 100-foot average, 75-foot minimum natural vegetative "default" buffer would apply in "areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species have been documented within 300 feet of a surface water or wetland." They conclude that providing only a 75-100 foot "default" buffer in an area documented to contain threatened or endangered species habitat within 300 feet would result in the destruction of that habitat between the 75- to 100-foot buffer zone and the 300-foot extent of the documented habitat. This is another instance in which the Sierra Club Petitioners' conclusion requires an assumption of bad faith on the part of the County regulatory authorities. Whether the default buffer is 300 feet or 75 feet, that default buffer applies only in the absence of "scientific information which demonstrates that a larger or smaller buffer width is appropriate." The Sierra Club Petitioners correctly note Michael Drummond's testimony that, under the 1991 Plan, the default buffers were often employed where the existence of wetland- dependent species was suspected, but not verified. Mr. Drummond also testified that application of a 100-foot buffer would not be adequate for listed species. However, Mr. Drummond's testimony does not demonstrate that the County would ignore scientific information demonstrating the presence of endangered species and apply the default buffers regardless of those species' habitat requirements. The undersigned does not agree that it is beyond fair debate that Florida Administrative Code Rule 9J- 5.013(2)(c)5. requires the County to apply the default buffers in habitats where there is a "high potential" for endangered species to occur, but where the species have not been documented. The cited Rule requires the COSE to contain policies that address implementation activities for the "[r]estriction of activities known to adversely affect the survival of endangered and threatened wildlife." 2003 COSE Policy 3.6.8 complies with the language of the rule by addressing known adverse affects. Alachua County was entitled to make a policy choice not to go farther and address potential adverse effects caused by inadequate buffers in areas that endangered species might inhabit.22/ There is no question that the Sierra Club's policy preference would result in greater protection of endangered species and their habitats, actual or potential. However, this fact alone does not compel the County to enact stricter provisions than the relevant statutes and rules require. The Sierra Club Petitioners' focus on the "300 foot minimum buffer" language in the Bird Memo led them to overlook the fact that the Data and Analysis support 2003 COSE Policy 3.6.8, as well as the version in the 2002 Plan Update. The Bird Memo itself recognizes the County's choice of "an alternative to one large buffer distance . . . to provide flexibility while accommodating private property concerns." The Bird Memo expressly recognized that the scientifically preferable wide buffers "may unrealistically deny landowners use of their land." 2003 COSE Policy 3.6.8 reasonably balances the interests noted in the Bird Memo by providing for a site- specific determination of the proper buffer width based on the scientific information at hand. Application of the default buffer is always contingent upon the absence of scientific information.23/ The Sierra Club Petitioners also challenge the 2003 Amendment's change of language in the table of COSE Policy 3.6.8.2 from "listed plant or animal species" to "federally and/or state regulated vertebrate wetland/aquatic dependent animal species." They argue that the evidence showed that limiting the buffer protection in COSE Policy 3.6.8.2 to only federally and/or state regulated species, rather than to all "listed species" as defined in the 2002 Plan as amended, would exclude approximately 14 species from the threatened and endangered species protection of the buffer provision. The 2002 Plan, as amended in 2003, defines "Listed Species" as follows: Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g. they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction. The Bird Memo explains the inclusion of the FNAI and, until the 2003 Amendments, the Florida Committee on Rare and Endangered Plants and Animals ("FCREPA") lists as follows: The use of FNAI and FCREPA sources does not make the list of protected species significantly broader than the list generated from using federal and state agency lists. Rather, it makes protection efforts more accurate and timely because they are based on scientific judgment responsive to changing natural conditions, rather than political listing decisions which can take years in the making. The use of these data sources to identify species for special protection is considered by many ecological professionals, including state and water management district personnel, as the best available data for the purpose of recognizing plants and animals in decline in the state and in Alachua County. The Sierra Club Petitioners argue that there was no basis in either the 2002 Plan Update or the Data and Analysis for 2003 COSE Policy 3.6.8.2 to exclude the FNAI-listed species from the protection they receive at every other point in the Plan where endangered and threatened species protections apply or to exclude non-vertebrates from the buffering provisions of COSE Policy 3.6.8.2. In response, the County initially points out that the category of buffers for listed species was new to the 2002 Plan Update. The County notes that the 1991 Plan essentially deferred to federal and state agencies in the regulation of plants and wildlife and that in crafting the 2002 Plan Update, the County decided to broaden conservation areas to include the habitat of FNAI-listed species. The County incidentally observes that FNAI is a scientific organization with no regulatory function whatever. The County argues that there is no conflict between its decision to generally broaden conservation areas and its decision to create a new wetland buffer category for federal and state-regulated species. The undersigned agrees that it is at least fairly debatable that the County was not required to apply its "listed species" definition to the buffering provision of COSE Policy 3.6.8.2. The Sierra Club Petitioners simply failed to demonstrate the necessary connection between the definition and the buffer category that might establish an internal inconsistency. The mere fact that the 2002 Plan Update employed the term "listed plant or animal species" in the buffer table does not establish a presumption of correctness. The Bird Memo states that the FNAI and FCREPA lists provide "the best available data for the purpose of recognizing plants and animals in decline," and thus supports the County's decision to reference the FNAI list in its "listed species" definition, but does not require the County to include the list for purposes of defining a buffer category. In further defense of 2003 COSE Policy 3.6.8, the County notes that the policy provides flexibility to respond to the needs of individual species by allowing for "buffer averaging," which permits the buffer area to be distributed in a varying width around the wetland, subject to the minimum widths contained in the table. In addition to the increased buffers, the County substantially improved its protection of wetlands by strengthened requirements in proposed COSE Policies 3.6.1324/ and 4.7.4 for avoidance and minimization of impacts. Avoidance and minimization is also facilitated by proposed Policy 3.6.5, which provides for transfers of densities or clustering. The County notes that the updated Plan contains multiple layers of wetlands protection. COSE Policy 4.7.1 provides that wetlands of all sizes are to be regulated, without exception. COSE Policy 4.7.4 limits the development impact area to the ratio of one-half acre of impact to each ten acres of conservation area. If wetland impacts cannot be avoided or minimized, then the strengthened mitigation requirements of COSE Policy 4.7.7 must be met, including a minimum ratio of 5:1 mitigation area to impacted area, a requirement that the mitigation areas be within the County and no mitigation credits for onsite preservation of wetlands, which are required to be protected in any event. Preservation of wetlands and/or other surface waters or uplands cannot be counted as "mitigation" if federal, state, water management district, or local regulations already require protection of the resource in question. In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies on surface waters and wetlands. D. Agricultural Uses The Jonesville Petitioners criticized 2003 COSE Policy 3.1.2,25/ which provides: In primary and secondary conservation areas, the following uses, if otherwise consistent with the Comprehensive Plan, generally shall be permitted to the extent that they do not significantly alter the natural functions of the conservation area: Public and private conservation, recreation and open space uses. Public and private wildlife preserves, game management and refuge areas. Water conservation and retention/detention areas that are determined to be appropriate for stormwater management. Agricultural uses, employing latest applicable best management practices. The Jonesville Petitioners contend that the quoted policy creates an internal inconsistency in the Plan. The inconsistency is said to stem from a conflict between the County's desire to sustain the ecological integrity of natural resource areas that due to their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures, and the fact that some of the uses to be permitted in conservation areas, particularly agricultural uses, can be incompatible with the preservation of ecological integrity as defined in the Plan. While there was some expert testimony as to the difficulty of reconciling agricultural and recreational uses with conservation, the weight of the evidence did not demonstrate such an inherent incompatibility as to establish an internal inconsistency in the Plan. The listed uses are to be permitted "to the extent that they do not significantly alter the natural functions of the conservation area," and there was no showing that this qualification is unenforceable by its terms. The County also pointed out that its authority to regulate agricultural activities by way of development controls is limited by statute. The "Florida Right to Farm Act," Section 823.14, Florida Statutes (2003), provides, in relevant part: (6) Limitation on duplication of government regulation.-- It is the intent of the Legislature to eliminate duplication of regulatory authority over farm operations as expressed in this subsection. Except as otherwise provided for in this section and s. 487.051(2)[pesticide regulation], and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461 [property tax assessments of agricultural lands], where such activity is regulated through implemented best-management practices or interim measures developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or water management districts and adopted under chapter 120 as part of a statewide or regional program. . . . (Emphasis added.) More recently, the Legislature passed the "Agricultural Lands and Practices Act," Section 163.3162, Florida Statutes (2003), effective July 1, 2003, subsection (4) of which provides: Duplication of regulation.-- Except as otherwise provided in this section and s. 487.051(2), and notwithstanding any other law, including any provision of chapter 125 or this chapter, a county may not exercise any of its powers to adopt any ordinance, resolution, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461, if such activity is regulated through implemented best management practices, interim measures, or regulations developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or a water management district and adopted under chapter 120 as part of a statewide or regional program; or if such activity is expressly regulated by the United States Department of Agriculture, the United States Army Corps of Engineers, or the United States Environmental Protection Agency. (Emphasis added.) The Jonesville Petitioners also raised the specter of sham agricultural uses being used as a cover for the conversion of environmentally sensitive properties to residential development. Richard Drummond candidly acknowledged that such conversions could occur if the County were insufficiently diligent as to events on the ground, but also testified that the County did what it could, within the statutory constraints set forth above, to ensure that the updated Plan would circumvent such covert efforts. Both statutes quoted above restrict a local government's ability to restrict a "bona fide farm operation," but neither statute defines the term "bona fide farm operation." In the 2002 COSE definitions, Alachua County provided a definition of "bona fide agricultural purposes" to mean: Good faith commercial agricultural use of the land, provided the land is classified for assessment purposes by the property appraiser as "agricultural" pursuant to Chapter 193, Florida Statutes. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration: The length of time the land has been so utilized; Whether the use has been continuous; The purchase price paid; Size, as it relates to specific agricultural use; Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices; Whether such land us under lease and, if so, the effective length, terms, and conditions of the lease; and Such other factors as may from time to time become applicable. The Jonesville Petitioners contend that 2003 COSE Policy 3.1.2 creates an internal inconsistency with 2002 FLUE Policies 6.2.10, 6.2.12, 6.2.13, and 6.2.15. The permitted uses delineated in 2003 COSE Policy 3.1.2 do not list residential activity as a permitted use in conservation areas. The cited 2002 FLUE Policies all contemplate some residential development in "strategic ecosystems," which are included in the definition of conservation areas. The Jonesville Petitioners also note that, within 2002 FLUE Policy 6.2.12, silviculture, common water supply systems, and common septic system drainfields are listed as potential uses in conservation areas that are designated as "open space" in clustered rural residential subdivisions, yet none of these uses is listed as permitted in 2003 COSE Policy 3.1.2. They assert that the definition, treatment, and application of the terms "agriculture" and "silviculture" within the 2003 COSE plan amendments create inconsistency and lack of predictability in the application and treatment of the related policies. As to the last point, the County credibly responds that the COSE definition of "agriculture" includes silviculture and that silviculture is considered in the Plan as a subset of agriculture, except in those instances in which some external factor requires a distinction. For example, Objective 5.5, "Agricultural and Silvicultural Practices," and its implementing policies recognize that agriculture and silviculture have distinct best management practices. It is not unreasonable for the County to interpret 2003 COSE Policy 3.1.2 as permitting silvicultural uses in conservation areas within the constraints applied to agricultural uses, where the COSE definition of "agriculture" includes silviculture. As to residential development and its concomitant common water supply and septic systems, it is evident from the FLUE Policies cited by the Jonesville Petitioners, as well as 2003 FLUE Policies 1.3.1e and 6.2.11 and 2002 COSE Policies 3.6.5, 4.10.3.3, and 4.10.4 to 4.10.6, that the Plan will allow for residential development of the least environmentally sensitive portion of a strategic ecosystems property by means of clustering, gross residential density limits, transfers of density, and other design techniques intended to protect ecosystems and private property rights. There is no inconsistency with 2003 COSE Policy 3.1.2 because that policy does not purport to contain the exclusive list of uses allowed in conservation areas, as indicated by its own text and that of the very next policy, 2003 COSE Policy 3.1.3: Primary and secondary cConservation areas shall be developed only in a manner consistent with protection of the ecological integrity of natural resources, and in accordance with standards which are outlined subsequently in this Element. The COSE Definitions provide the following meaning for the term "development activity": Any dredging, filling, excavation, construction of new structures, expansion of existing structures, installation of utilities, roads, personal wireless service facilities, stormwater management systems, septic tanks, bulkheading, land clearing, tree cutting, mechanized vegetation removal and the disposal of solid or liquid waste. Clearly, 2003 COSE Policy 3.1.2 lists certain uses that "generally shall be permitted," but when read in context with other Plan provisions, does not necessarily forbid residential development on certain properties defined as conservation areas. In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies affecting agricultural uses and their impact on conservation. The alleged internal consistencies in these policies were not demonstrated beyond fair debate. Level of Service 2003 Transportation Policy 1.1.2 and Capital Improvements Policy 1.2.4 raise the level of service ("LOS") for rural collector roads from LOS D in the 1991 Plan to LOS C, which is the standard recommended by the Florida Department of Transportation for rural collector roads. The McSherry Petitioners challenged this amendment because the 2002 Plan Update had upgraded the rural collector roads to LOS B. However, the proper point of comparison is from the 1991 Plan to the 2003 Amendments. Further, the evidence produced at hearing did not demonstrate that a higher LOS than C is required for protection of the state or county transportation network. It is at least fairly debatable that the Amendments regarding the LOS for rural collector roads were adequately supported by data and analysis. Conclusion It is found that, as to the 2003 Amendments in their entirety, the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data.
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 finding the 2003 Alachua County Amendments to be "in compliance." DONE AND ENTERED this 18th day of October, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2004.
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.
Conclusions For Petitioners Martin County Conservation Alliance, Inc., Donna Melzer, and Elisa Ackerly: Donna Sutter Melzer, Esquire 3471 Southwest Centre Court Palm City, Florida 34990-2312 For Petitioners Groves Holdings, LLC, Groves 12, LLC, and Groves 14, LLC: Andrew J. Baumann, Esquire Tara J. Duhy, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401-4327 For Respondent Martin County: David A. Acton, Esquire Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Linda Loomis Shelley, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301-1547 For Respondent Department of Community Affairs: L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
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 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 7th day of September, 2010, in Tallahassee, Leon County, Florida. 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 7th day of September, 2010.
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate 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 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The issue for determination is whether the comprehensive plan adopted by Escambia County is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact PARTIES DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments under Florida's Local Government Comprehensive Planning and Land Development Regulation Act (the Act). Final agency action with regard to plans and plan amendments found not in compliance by DCA is taken by the Governor and Cabinet, acting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. Respondent, Escambia County, is a local government required to adopt a Comprehensive Plan under the Act. The following intervenors filed petitions challenging portions of the plan: League of Women Voters of the Pensacola Bay Area, Inc.; Dorothy Kaser; Joseph Grizzaffi, Jr.; Anneice Grizzaffi; Francis M. Weston Audubon Society; Gabrielle Faddis; James Lane; Jacqueline Lane; and Vivian Faircloth. The following intervenors filed petitions in support of the plan: Homebuilder's Association of West Florida, Inc., Michael Blanton and Escambia Construction, Inc.; Highland Development Group, Inc.; Edwin Henry and Henry and Co., Inc.; and E.J. Gibbs. Prior to commencement of the hearing Highland Development Group, Inc. withdrew its petition to intervene. As a result of stipulation of the parties, no objection is raised to the participation of the remaining parties who are intervenors on behalf of Respondent. STANDING OF THE PARTIES In order to intervene in this proceeding, the requirements of Section 163.3184(1)(a), Florida Statutes, must be met. First, the intervenor must be an "affected person" as defined by that section. Second, the intervenor must have submitted oral or written objection during the local government "review and adoption proceedings." The local government "review and adoption" period is the period of time which runs from the issuance of DCA's Objections, Recommendations and Comments Report (the ORC Report) and the adoption of the plan. In the instant case this period of time commenced on August 10, 1990, the date of the ORC Report, and ended on October 8, 1990, the date of the plan's adoption. The League of Women Voters of the Pensacola Bay Area, Inc. (the League), is a local chapter of the League of Women Voters. Gloria Dawson, former president for the League, spoke on behalf of the League before the Board of County Commissioners September 17 and 24, 1990, and expressed concerns and opinions regarding the County's proposed plan. Between August 10, 1990, and October 8, 1990, the League also provided written comments to the County concerning the plan. Many members of the League, including Gloria Dawson, Vivian Faircloth, Muriel Wagner, Dorothy Faddis, are residents of Escambia County; several members reside in the unincorporated area of the County. Dorothy Kaser resides and owns property in Escambia County. She was a member of the Planning Board, the County's local planning agency pursuant to Section 163.3174, Florida Statutes, from 1988 to December 1990. Through her duties as a Planning Board member Ms. Kaser provided written and oral comments to the Board of County Commissioners regarding the comprehensive plan. Her comments were stated at Planning Board meetings during the local government review period, and were incorporated in the final Planning Board recommendation which was forwarded to the Board of County Commissioners for final approval and adoption. Joseph Grizzaffi, Jr., and Anneice Grizzaffi are married and reside and own property in Escambia County. During the local government review period the Grizzaffis spoke on August 23,1990 to the Board of County Commissioners, impaneled as the Zoning Board, concerning mixed use categories, leapfrog development, and strip commercial development. The Grizzaffis made these comments in opposition to a rezoning request, but also as part of the larger planning scheme involving the comprehensive plan. The Grizzaffis were under the impression given by the Public Participation Procedures and the conduct of one of the commissioners at the August 23 meeting that comments concerning the plan could be directed to either the Board of County Commissioners or the Zoning Board. The Frances M. Weston Audubon Society is a local chapter of the National Audubon Society (Audubon). Gabriel Faddis spoke about issues concerning the comprehensive plan on behalf of Audubon before the Board of County Commissioners on August 31 and September 24, 1990. Ms. Faddis represented Audubon at these meetings at the request of the Chapter's president. James and Jacqueline Lane reside and own property in Escambia County. During the local government review process, neither of the Lanes provided the County any oral or written comments concerning the plan. Although the Lanes attended the adoption hearing, neither of them offered any comments because they felt it was "pointless." In their opinion, the period of time between the ORC Report and plan adoption was dedicated by the County to entertaining land use changes as opposed to constructive criticism or comments from the public. Vivian Faircloth is a resident of Escambia County and an officer of the State League of Women Voters. Ms. Faircloth commented on the plan to the Board of County Commissioners on September 24, 1990. At that time she made it clear that she was speaking on behalf of herself, not the League, which was officially represented at the same meeting by Gloria Dawson. DCA was not requested by the County to attend the plan adoption public hearings which were conducted on October 5 and 8, 1990. COUNTY BACKGROUND The most western county in the Florida Panhandle, Escambia County is bordered on the east by the Escambia River, on the west by the Perdido River, on the north by the State of Alabama, and on the south by the Gulf of Mexico. It is comprised of approximately 430,661 acres. According to the plan's data and analysis, the population for the unincorporated portion of the County is estimated and projected as follows: 1990 232,271 1995 249,623 2000 263,150 There are only two incorporated municipalities within the County: Pensacola and Century. These municipalities have drafted and adopted their own plans. The City of Pensacola is an urban area in the southeast portion of the County with a population of approximately 62,036 persons; Century is a rural community in the northern portion of the County with a population of 2,664 persons. Approximately 95 percent of the County's population resides in the area of the County which extends from Pensacola to the middle of the County. Escambia County has an abundance of valuable water resources including Pensacola Bay, Perdido Bay, Escambia Bay, Escambia River, Perdido River, Bayou Chico, and Bayou Texar. The County's surface water resources can be divided into four drainage basins: the Escambia River Basin, Pensacola Bay Basin, Perdido Bay Basin, and Perdido River Basin. The County also has significant wetland areas, particularly along the rivers, in the Southwest portion of the County and in the coastal areas. In 1984 the Governor and Cabinet, sitting as the Administration Commission, designated the lower portions of Escambia and Santa Rosa counties a resource planning area pursuant to Section 380.045, Florida Statutes. This designation arose from concern about development damaging coastal dunes and wetland areas. The purpose of this designation was not to stop growth in this area, but to evaluate the ability of the local governments to protect the environment through comprehensive planning and land development regulations. The evaluation was conducted by the Escambia-Santa Rosa Counties Coastal Resource Management Planning Committee, which produced a report containing numerous recommendations that were approved by the Governor and Cabinet. In his November 24, 1984 charging letter to the committee, Governor Graham specifically asked it to evaluate the adequacy of resource protection, particularly for coastal dunes, wetland areas, and the estuarine resources of the various bay systems in the study area. Historically the County has been reluctant to plan development. To date not all of the unincorporated areas of the County are subject to zoning regulations. The County did not have any zoning in the unincorporated area of the County until adoption of its Zoning Ordinance in 1989, which zoned the southern part of the County from what is known as Ten-Mile Road south to the coastal edge of the County. The County presently has two zoning ordinances of limited scope which were adopted only after intervention from the State. One of the zoning ordinances applies to the limited area surrounding the University of West Florida, a state-funded university. The University of West Florida zoning ordinance was adopted at the insistence of the State, which did not wish to invest in an unplanned area, prior to the construction of the university. The Urban Land Use Regulation Ordinance, which applies to the area south of Ten Mile Road, was adopted at the request of the Escambia-Santa Rosa Counties Resource Protection Management Committee as a first step towards planning future development. HISTORY OF THE PLAN The County contracted with the West Florida Regional Planning Council (RPC) to draft proposed goals, objectives and policies; compile support data and analysis; and provide technical assistance in the preparation of the plan. The RPC also drafted a Future Land Use Map after the ORC Report was issued. This map was not adopted by the County. The key person involved with the preparation of the plan was Robert Koncar, Assistant County Administrator. Although the County has a planning staff housed in the Department of Planning and Zoning, the County's planners were not involved in the preparation of the plan. Koncar personally revised the goals, objectives, policies and the Future Land Use Map Series which had been developed by the RPC. The County's land development regulations were due to be adopted by May 1, 1991. Those regulations were not adopted on schedule, nor was the Concurrency Management System which the County affirmatively committed to adopt in Capital Improvements Policy 1.3.7 of the plan by May 1, 1991. The proposed plan was received by DCA on May 1, 1990. DCA issued its ORC Report on August 10, 1990. The County held public hearings on the adoption of its plan on October 5 and October 8, 1990. During the course of these public hearings the County considered numerous applications for land use changes. These changes applied to designations on the Future Land Use Map series. The application forms for land use changes simply requested information as to the location of the property and desired use. No explanation or data and analysis was required of an applicant to justify a land use change. No data and analysis was submitted by the County to DCA to support these land use changes. The proposed plan originally did not include planning for Pensacola Beach and Navarre Beach. The proposed Santa Rosa Future Land Use Sub-element (Santa Rosa Sub-element) was submitted to DCA after submittal of the proposed plan. The Sub-element was prepared later by a different consultant, the Strategic Planning Group, following DCA's objection to Santa Rosa's exclusion from the plan. DCA reviewed the proposed Santa Rosa Sub-element and its data and analysis later and issued a separate ORC Report based on it. On October 8, 1990, the Escambia County Board of County Commissioners adopted Ordinance 90-18 which by reference adopted the Goals, Objectives, and Policies of the Comprehensive Plan and the Future Land Use Map or Map Series. On November 30, 1990, DCA issued its Statement of Intent to find the plan to be not in compliance. In 1991 the legislature adopted Chapter 91-310, Laws of Florida, which altered the boundary line between Escambia County and Santa Rosa County so that Navarre Beach is now in Santa Rosa County. SANTA ROSA ISLAND AUTHORITY One of the unusual physical features of Escambia County is Santa Rosa Island, a coastal barrier which stretches from the eastern half of the County to Walton County. The County acquired 20 miles of the western-most portion of the Island by deed from the federal government in 1946 to be used in the public interest subject to regulation by the County, whether leased or not. A substantial part of the Island was given back to the federal government to be used as part of the National Seashore. The deed specifically prohibits the County from selling any part of the Island. The remainder of the County's portion of the Island was either placed under the control of the Santa Rosa Island Authority (SRIA) or leased to Santa Rosa County. The SRIA was established by special act in the 1950's to administer the County's portion of the islands. The SRIA is governed by a board consisting of one member selected by each of the five County Commissioners and one member elected by residents on the Island. The Authority has an executive director and permanent staff of approximately 60 employees. Beginning in the 1950's, the SRIA disposed of the property under its control by entering into standard 99-year leases with automatic 99-year renewals. These leases are for commercial and residential properties and generally authorize the construction of development on the parcels up to a certain intensity of use or density. More current commercial leases for other than hotel purposes are generally for shorter periods than 99-year terms. The leases are not subject to a bidding process or other competitive public process. They are negotiated with private individuals on a case-by-case basis. The rent provided for in the lease has no relationship to the market value of the property. The term of the leases has no relationship to the need to amortize an investment. Very few of the parcels subject to leases for multiple-family use on Pensacola Beach have been built to the maximum density provided for in the lease; yet, most of those uses are earning a profit. The data and analysis, and goals objectives and policies, relating to Santa Rosa Island were done under the assumption that the outstanding leases are enforceable over the police powers of the County. The portions of the plan relating to Santa Rosa Island were designed to take those leases into account. If a "carrying capacity" analysis of the island had been done, a completely different result would have been recommended by the consultant. No effort has been made by the County or the SRIA to challenge the validity of the leases or to enter into a program to minimize the number or term of the leases. In fact leases are still being executed by the SRIA with no information about how the rent relates to the fair market value of the property. In 1985 the County issued a series of revenue bonds to pay for improvements on Pensacola Beach. The revenues which were pledged for repayment included anticipated lease payments from new lessees. The number of units actually built since 1985 has been a mere fraction of the ones anticipated in the bond documents. Yet the debt service on the bonds has been kept current, and existing revenues will be sufficient to maintain those payments into the foreseeable future. The SRIA generates no funds for Escambia County government, and the leases are not subject to ad valorem taxation. EFFICIENCY OF LAND USE AND THE FUTURE LAND USE MAP As early as its 1980 Comprehensive Plan (1980 Plan), the County acknowledged predominant land development patterns in the unincorporated area characteristic of two types of sprawl: The random development pattern and the corridor pattern. These development patterns resulted from past policies of minimum planning, lack of development coordination and absence of land use or zoning controls in the County except for the areas around the University of West Florida. That area, under the University of West Florida Land Use Regulations, exhibited orderly growth in contrast to other parts of the County. The corridor pattern of growth along the major transportation routes had become an increasing trend in Escambia County in the 1980's as the urbanized area spread outward to the north and west. Even though these patterns of development were criticized in the 1980 Plan, they are still characteristic of the types of development which currently exist in the County and are encouraged by the land use designations on the Future Land Use Map. The 1980 plan noted that the random development, or leapfrog pattern, was characterized by low density residential clusters in the urbanized areas of the County surrounding the City of Pensacola with scattered intermittent commercial and mixed uses along the major transportation routes radiating out from the urban areas. The random or leapfrog growth pattern, characterized by intermittent, developed clusters and undeveloped open spaces, produces low tax revenue per acre of land, a very high cost of providing services and facilities to the scattered clusters, and little incentive for fill-in development in the vacant areas. Generally speaking, single-family residential property does not generate sufficient ad valorem tax revenue to pay the costs of providing public services to the property, especially when sprawling patterns make those services more expensive to provide. Sprawling development patterns impose additional costs, such as increased utility costs and lower levels of service on roads, some of which may be offset by reduced land costs. However, accommodating such patterns through the provision of public services like law enforcement, emergency response, water and sewer, and public schools, also tends to result in the subsidization of inefficient development patterns by residents who live or do business in areas characterized by a mixture of functionally related uses. These costs are of increasing significance to County governments in rapidly growing areas like Florida because residents of unincorporated areas are increasingly demanding a level of public services that used to be enjoyed only by residents of incorporated municipalities. Requirements that a plan be based on data and analysis, protect natural resources, maximize use of efficient infrastructure, and be financially feasible, are related in the sense that a plan which discourages sprawl is more likely to accomplish these planning objectives as well. The term "urban sprawl" as it appears in Chapter 9J-5 is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas, and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. Leapfrog development may occur due to the lower cost of land outside the urban area compared to the cost of developable land in the urban area. This can occur when plans fail to address the timing of development in addition to its location. Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development may still present an increased risk to water supplies and sensitive environmental areas. Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant communities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of curb and median cuts and access points which must be permitted. Strip development frequently overburdens arterial roadways with local trips since local road networks remain poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that may require protection from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential, commercial, industrial, recreational and institutional uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient use of developable land, and frequently destroys significant environmental and natural resources. Allowing low-density development on large expanses of land also frequently precludes development or redevelopment at the higher densities that become appropriate as the urban or urbanizing area grows. The resulting growth pattern encourages leapfrog development. If redevelopment of these low-density areas to higher intensities does occur, the costs to expand public facilities and services will commonly be substantially higher than would have been incurred to provide the infrastructure capacities that would have been appropriate initially. Plans which fail to discourage urban sprawl often over-allocate land uses, especially residential uses, and designate areas for development which are not suitable, such as wetlands, floodplains, poorly drained soils and aquifer recharged areas. An unregulated land development environment is usually unsuccessful in bringing about truly efficient land development patterns because such a market does not force a developer or land consumer to pay the true, full economic costs of land development. Hidden subsidies may arise from a failure to impose marginal cost pricing of utilities, failure to establish special taxing units to reflect actual costs of parties' utilities, and failure to assign costs to destruction of natural resources like wetlands and aquifer recharge areas. Sprawling development patterns also adversely impact agricultural operations in that such patterns may cause land use conflicts by encouraging farmers to abandon reinvestment in their farm operations and begin looking to sell their land. The Escambia County plan greatly over-allocates residential land uses. This over-allocation is not based on data and analysis. Generally, the number of developable acres designated for use over the 10 year planning period should be only slightly larger (25 percent) than the number of acres needed for that particular land use. Using the County's own assumption regarding densities, approximately 18,841 acres will be required to meet residential needs, excepting agricultural and agricultural/timber categories. The plan allocates total acreage of 122,980, or more than five times the land supply needed for this purpose. The plan allocates 8,881 acres for commercial and industrial purposes in the face of assumed need for only 4,294 acres, more than twice the projected need. The Escambia County Comprehensive Plan actually encourages the proliferation of urban sprawl in the land use patterns set out on its Future Land Use Map (FLUM). Similarly, the plan is not based on data and analysis regarding land use allocations and, by encouraging scattered residential development, poses a threat to the continued viability of agriculture in the County. Future Land Use Element (FLUE) Policy 3.1.3 classifies residential land uses. The following land use categories, as established by that policy, allow special exceptions as land uses: Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential; and Urban Residential. Nowhere in the plan is there any indication of what uses will be allowed by special exception or what criteria will be used in establishing the conditions for a special exception. Thus, the plan's densities and intensities of use for Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential and Urban Residential are chimera. The plan includes mixed use classifications of land use in several policies: FLUE Policy 3.1.5 (Mixed Use and Mixed Use-Southwestern District), 3.1.5.a (Mixed Use and Mixed Use- Southwestern District), 3.1.3 (Rural Residential-Mixed Use), and Santa Rosa Sub-element Policy 1.4.5 (Medium Density Residential Commercial and High Density Residential Commercial) and 1.4.8 (High Density Residential). Nowhere in these policies or related policies, including FLUE Policy 4.1.22 and 4.1.23, is there any criteria which establish the composition of mixed use categories (i.e., 30% commercial, 70% residential) or guide the implementation of these mixed use classifications such as by ensuring that the land uses are functionally related. Thus, no densities or intensities of use have been established for these land use categories. The plan does not ensure that development will result in a balanced and complimentary mixture of land uses. FLUE Policy 3.1.5 establishes land uses for the Mixed Use-Southwestern District. This category allows the following development: Low Density residential, 1-7 dwelling units per acre; Medium Density Residential, 8-15 dwelling units per acre; and Commercial, consistent with lot coverage standards of 75% maximum coverage for all impervious surfaces. The Future Land Use Map series does not indicate where the various residential densities are allowed nor does the plan include any criteria to provide any guidance as to which density would apply where and under what circumstances. Most of the area in the Mixed Use-Southwestern District contains wetlands. Based on the General Soils Map contained in the data and analysis, this area is dominated by Klej-Leon (somewhat poorly drained), Plummer-Rutledge (poorly drained) and undifferentiated poorly drained flood plains and swamps. These soils, which are indicative of poor drainage, are referred to as hydric soils, which is an indicator of wetlands. The data and analysis does not analyze the suitability of this area for development despite the soils characteristics. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach and includes a category denominated Conservation/Recreation. That classification states in pertinent parts: . . . depending on the specific characteristics of each site appropriate recreation uses may include public parking, beach access, boardwalks, nature trails, boat launching areas, docking facilities, picnic areas, rest rooms, and other such related uses as may be approved by the Santa Rosa Island Authority consistent with legal requirements presently in force. Other uses may by approved by the Santa Rosa Island Authority subject to appropriate studies which demonstrate that such uses are environmentally sound and in the public interest . . . The development of a golf course is allowed by this category and has been specifically contemplated in the past by the Santa Rosa Island Authority. Language of the Conservation/Recreation category in Santa Rosa Sub- element Policy 1.4.5 (10), affords great discretion in the Santa Rosa Island Authority as to what "other uses" are in the "public interest" or "environmentally sound. "No standards are provided which would specifically identify the limits of the types of uses for this classification or the specific criteria which would apply in ensuring a development was in the "public interest" or "environmentally sound." As a result, this policy places unbridled discretion for development in the hands of the Santa Rosa Island Authority, an entity not elected and not accountable to the public. The residential density for the area depicted on the Future Land Use Map as Special Development/Buffer is established in the FLUE Policy 3.1.1 and FLUE Policy 3.1.9. These policies are internally inconsistent as relates to residential densities. Policy 3.1.1 allows one to five dwelling units per acre and Policy 3.1.9 allows only one dwelling unit per acre for this land use. FLUE Policy 3.1.7 establishes land uses for the Recreational category allowing "public recreation areas, private recreational facilities, including limited commercial uses, such as marinas, public utilities." The intensity must be "consistent with lot coverage included in the land development regulations." This policy is inadequate because the intensity of development must be established in the plan, not the land development regulations. FLUE Policy 3.1.8 establishes land uses for the Conservation category. This category allows: . . . activities compatible with the purposing of conserving or protecting natural resources, including flood control, wildlife habitat protection[,] resource-oriented recreational uses, wetlands application of reclaimed water where appropriate and beneficial, and, where appropriate, silviculture using best management practices as defined by the Florida Division of Forestry. No density or intensity is established in the plan for this category. The County could have established intensities for this category through lot coverage, floor area ratios, height densities, and bulk criteria. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach including the following categories: General Retail; Recreation Retail; Conservation/Recreation; and Government and Civic. Each of these categories allows development but does not establish any densities or intensities. Santa Rosa Sub-element Policy 1.4.8 establishes land uses for Navarre Beach including the following categories: High Density Residential; Commercial; and Recreation. Each of these categories allows development but does not establish any densities or intensities. The data and analysis submitted to support the proposed plan included a map series which identified historic districts, archeological areas, historical sites, and additional facilities. The Future Land Use Map series does not depict any historic properties, although such properties are known and identified in the data and analysis. The data and analysis identifies existing and planned water wells. Table 15 lists wells operated by various facilities for public and industrial uses and Table 16 lists future wells projected for the period of 1985-2005. These existing and future wells are depicted on a location map which is a part of the data and analysis. However, the locations of these existing and future wells are not depicted on the Future Land Use Map series. Further, the areas around major water wells, termed "cones of influence" are also not depicted on The Future Land Use Map series. The data and analysis depicts the 100-year floodplain on a location map. The 100-year floodplain is not depicted on the Future Land Use Map series. There are various types of wetland systems in Escambia County including: Bottom land hardwood communities, located along the Escambia River; the mixed wetlands, found in the Southwest District and the Perdido area; estuarine systems associated with the estuaries Pensacola Bay, Escambia Bay and Perdido Bay; coastal salt marshes; and the unique freshwater lens system found on Perdido Key and Santa Rosa Island. The Future Land Use Map series fails to depict all these wetlands. The identification of hydric soils may be a good indicator of wetland areas, but the Generalized Soils Map which is found in the support data and analysis was not adopted by the County. The adoption ordinance does not indicate that the County adopted a wetlands map of any kind. The data and analysis generally depict soils. The data and analysis contain a map entitled "General Soil Map" which was prepared by the U.S. Department of Agriculture in 1960. This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map series which was adopted depicts no soil information. The data and analysis generally depict sandy clay and clay; medium- fine sand and silt; and gravel and coarse sand on a map entitled "Mineral Resources." This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map which was adopted does not depict any mineral information. The Future Land Use Map series consists of three maps: a countywide map with land use categories "drawn" on a Florida Department of Transportation general highway map, a map of Pensacola Beach, and a map of Navarre Beach. The countywide map is internally inconsistent with the Navarre Beach Map because the countywide map depicts only three land use classifications on Navarre Beach: Low density residential, Commercial, and Conservation. The Navarre Beach Map, however, includes these different designations: low density residential; medium density residential; high density residential; commercial public utility; outdoor recreation; and preservation. The policies in the FLUE which describe low density residential (Policy 3.1.3), commercial (3.1.4) and recreation (3.1.7), describe different uses and intensities or densities than are described for categories of the same name in Santa Rosa Policy 1.4.8. The countywide Future Land Use Map depicts a Tourist/Resort category on Pensacola Beach. No policy establishes this category, describes the allowable uses, or establishes densities or intensities of use. The countywide map depicts a large area next to the City of Pensacola as "Commercial." FLUE Policy 3.1.4 defines this classification to allow commercial activities and public facilities and specifically prohibit residential development. The Existing Land Use Map found in the data and analysis indicates that the existing land uses are more varied and include residential uses. No explanation of the prohibition of residential development exists within the data and analysis. PROTECTION OF NATURAL RESOURCES The data and analysis identifies numerous types of natural resources: rivers, bay, lakes, estuaries, groundwater, wildlife, endangered and threatened plans and animals, trees, wetlands, dune systems, and marine resources. The FLUE is required to include an objective ensuring the protection of natural resources. The only objective in the FLUE which attempts to address countywide natural resources is Objective 1.9, which reads: By May 1991, development criteria shall be adopted in the land development code to protect areas designated as Conservation, Special Development/Buffer, and other land requiring protection due to the presence of sensitive natural resources. FLUE Objective 1.9, while expressing a basic goal, is not specific and measurable. It is meaningless for purposes of marking progress toward an identified goal. Simply referring to a time frame does not make it measurable. Objectives and policies intended to meet the requirements of Chapter 9J-5, F.A.C., must be substantively effective upon adoption and not relegated to adoption through land development regulations. The data and analysis identify numerous natural resources throughout the County which are threatened by development and should be protected, however FLUE Objective 1.9 provides limited protection to the two areas designated Special Development/Buffer and to the few coastal areas designated Conservation. Therefore, this objective is not supported by the data and analysis. The FLUE is required to contain a policy which addresses implementation activities for the protection of environmentally sensitive land. The only policy in the FLUE which attempts to address the protection of environmentally sensitive land is FLUE Policy 1.9.1, an implementing policy of FLUE Objective 1.9., which states: The development criteria shall include, but not be limited to, the prohibition of development of areas designated as Conservation, severe limitation of development potential for areas designated as Special Development Buffer, special review and approval procedures for properties which may be identified as having sensitive natural resources. FLUE Policy 3.1.9 establishes a residential density of one dwelling unit per acre for the Special Development/Buffer. Per the FLUM, this is a land use found in only two areas in the eastern portion of the middle section of the County. The term "severe limitation" contained in FLUE Objective 1.9. is not defined, leaving the application of this policy to be subject to interpretation. The referenced special review and approval procedures have not been delineated, nor have other areas containing sensitive natural resources (in addition to the Conservation and Special Development/Buffer areas) been identified, yet they are known to exist, as shown in the data and analysis. Accordingly, FLUE Policy 1.9.1 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 1.9.2, also an implementing policy of FLUE Objective 1.9, states: The County shall maintain and implement Section XVI of the Urban Area Land Use Regulation Ordinance, as may be amended, requiring review of all properties for presence of wetlands prior to issuance of any development permits. Development projects proposed for development on lands identified as containing wetlands must complete the special development review procedures established in the land development regulations. Provision shall be established in the Land Development Regulations for requirement exemption through an agreement of nondevelopment of wetland areas. FLUE Policy 1.9.2 fails to establish specifications or programs to protect wetlands, is not supported by the data and analysis, and allows the policy to be amended from time to time without going through the necessary agency review process required by Section 163.3184, Florida Statutes. Accordingly, FLUE Policy 1.9.2 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 4.1.9 states: The County shall develop criteria for assessing the negative impacts of a potential development upon the environment which shall include, but not be limited to: Environmental habitat adjacent to proposed development; Intensity of development; Potential pollutants or other negative impacts released as a result of development. This policy is inadequate because it does not identify specific actions or programs. It does not constitute a "policy" as that term is defined in Rule 9J- 5.003(68), F.A.C., and it defers implementation or action until a future date. The plan, including FLUE Policies 4.1.9, 1.9.2, and 1.9.1, do not adequately address implementation activities for the protection of environmentally sensitive land as required by Rule 9J-5.006(3)(c)6, F.A.C. As applied specifically toward the protection of environmentally sensitive lands on Santa Rosa Island, Santa Rosa Island Sub-element Objective 1.4 states: Design and adopt a Future Land Use Map for Santa Rosa Island which coordinates the built environment with the natural environment. The Future Land Use Map shall coordinate topography, soils, beachdunes, native vegetation, natural waterbodies, and other natural resources with compatible intensities of allowable urban land uses such that potential Island population densities do not exceed hurricane evacuation capability. Policies 1.4.1-1.4.7 of Santa Rosa Island Sub-element Objective 1.4 do not ensure the protection of environmentally sensitive land because they do not identify specific actions or programs in accordance with the definition of "policy" in Rule 9J-5.003(68), F.A.C. Accordingly, there is no FLUE policy which adequately addresses implementation activities for the protection of environmentally sensitive land on Santa Rosa Island. The Coastal Management Element (CME) is required to include an objective for each goal statement which protects beaches or dunes, establishes construction standards minimizing impacts of manmade structures on beach or dune systems, and restores altered beaches or dunes. CME Policy 2.1.9 states: Construction seaward of the Coastal Construction Control Line shall only be permitted if state permits are first obtained. The Coastal Construction Control Line is a line established by the State of Florida, Department of Natural Resources pursuant to Chapter 161, Florida Statutes, under the premise that the area seaward of the line is subject to erosion. The State will not consider approval of development seaward of the coastal construction control line unless the applicable local government has already approved it. This provision of the plan makes construction contingent on state approval, contrary to law. It is inconsistent with requirements of Chapter 161. The Future Land Use Map series depicts development seaward of the coastal construction control line, including areas which are vacant. CME Policy 2.1.9, along with the Future Land Use Map designations which allow more development than is supported by the data and analysis, abrogates the County's duty to regulate the area seaward of the coastal construction control line in order to protect dune systems or other coastal resources. By failing to discourage development seaward of the coastal construction control line, CME Policy 2.1.9 fails to achieve the goal statement of Goal 2 of the Coastal Management Element which is to protect human life and limit public expenditure in areas that are subject to destruction by natural disaster. Objectives under Goal 2 of the CME do not adequately address protection of beaches and dunes as required by Rule 9J-5.012(3)(b)4., F.A.C.. CME Objective 2.1 addresses only maintaining a roadway clearance time for hurricane evacuation of twelve (12) hours; Objective 2.2 simply requires the County to identify the Coastal High Hazard Area; Objective 2.4 is concerned with public expenditures for facilities and infrastructure in the Coastal High Hazard Area; Objectives 2.5, 2.6. 2.8, 2.9, and 2.10 address dune reconstruction in the limited situation of post-disaster redevelopment. CME Objective 2.7 states: Establish site design criteria for construction and reconstruction within the Costal High Hazard Area. This objective is inadequate. It provides no specifically measurable intermediate end that is achievable marking the progress toward Goal 2. Similarly, CME Objective 2.11, which provides that "[c]onstruction activities on Santa Rosa Island shall not adversely impact the barrier island system," is inadequate because it is not specific and measurable. CME Objective 2.12 reads: "Allow no further loss in the acreage of beaches and dunes on the barrier island(s)." This objective, although specific and measurable, is inadequate because it applies only to the barrier islands and ignores the beach and dune resources on the mainland. Furthermore, development is specifically allowed in the beach and dune areas based on the Future Land Use Map designations. This internal inconsistency poses the question of whether the County intended Objective 2.12 or the Future Land Use Map to control the issuance of development orders in this area. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands and living marine resources. The CME is also required to include an objective which protects, conserves, or enhances remaining coastal wetlands and living marine resources. CME Objective 1.1 fulfills the requirement of Rule 9J-5.012(3)(b)1., F.A.C., to conserve remaining wildlife habitat, but none of its implementing policies meet the requirements of Rule 9J-5.012(3)(c)1., F.A.C., to limit impacts of development upon wetlands and living marine resources. CME Policy 1.1.6 appears to address this requirement. It is inadequate, however, because it fails to identify specific implementing actions or programs and it defers protection of these resources until the adoption of land development regulations. The policy states: The County shall, in conjunction with the Santa Rosa Island Authority, adopt or amend land use regulations on barrier islands, including Perdido Key and Santa Rosa Island, and other coastal areas identified in data and analysis which, at minimum address the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, and Florida Department of Natural Resources. This policy fails to include any criteria indicating what the land development regulations will require to protect these resources and no interim protection is provided. CME Objective 1.4 states: "By December 1992, the County shall develop a plan of action for maintaining and improving estuarine quality in the Coastal Area." This objective is inadequate because it defers implementation until December, 1992, and does not provide any criteria for any interim or future plan of action. No other objective in the CME addresses estuarine environmental quality. Therefore, there is no objective in the CME which maintains or improves estuarine environmental quality. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific and cumulative impacts of development upon wetlands. CME Policy 1.3.7 clearly attempts to address the requirements of this rule. However, it is inadequate to achieve the objective of protecting wetlands. The policy states: By 1993, amend existing land development regulations to include specific protection provisions for the specific cumulative impacts of development or redevelopment upon wetland areas as indicated and recommended by the stormwater management plan study. On its face, this policy is intended to address only the impacts of stormwater runoff on wetlands, and does not address other specific cumulative impacts of development or redevelopment such as the restriction or prohibition of development in wetlands. Furthermore, the policy is inadequate because it defers implementation until 1993 through land development regulations and no specific criteria is included in this policy as to what should be included in those regulations. The CME is also required to include a policy which identifies regulatory or management techniques for limiting impacts of development upon wildlife habitat. CME Policy 1.1.2 attempts to address this requirement. This policy states: By May 1991, revise the Special Development District Regulations to include special provisions to enhance wildlife protection to include, but not be limited to, consideration of cluster development, increasing mandatory open space requirements, consideration of wildlife corridors between special development districts and other such districts, in addressing the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Services, Florida Game and Freshwater Fish Commission, and Florida Department of Natural Resources. The vague use of the term "consideration" in CME Policy 1.1.2 does not provide any assurance that these actions will actually be implemented at a future date. Furthermore, the policy is not specific and measurable due to lack of criteria for open space, cluster development, or wildlife corridors. Further, the policy does not identify how the protection of species will be implemented. All of this is deferred to special development district regulations. 1/ The quality and quantity of waters flowing into estuarine or oceanic waters is not adequately protected as required by Rules 9J-5.013(2)(b)2., and 9J-5.013(c)6., F.A.C. The Conservation Element (CE) objectives of the plan are silent as to water quantity. Objective 1.1 refers to a state government agency's standards which apply only to water quality and do not address water quantity. CE Objective 1.1, which addresses surface water quality, states: "Prevent degradation of surface water quality below water qualities standards using as a minimum Chapter 17-25.040(5), F.A.C., in consideration of development of alternative regulations." Rule 17-25.040, F.A.C., is the Florida Department of Environmental Regulation rule for construction permit requirements for new stormwater discharge facilities. That rule, in turn, references Rule 17-25.030, F.A.C., which provides exemptions from the notice and permitting requirements of the Chapter. Rule 17-25.030 exempts single-family duplex, triplex and quadraplex facilities. Thus, CE Objective 1.1 applies only to water quality standards for new development and excludes single-family duplex, triplex and quadraplex facilities and existing development from drainage facility standards. CE Policy 1.1.11, which implements CE Objective 1.1, reads: Adopt or amend land development regulations to require retention/detention of stormwater runoff prior to discharge into surface water; and to prevent discharge of untreated or treated domestic and industrial waste water (which does not meet current treatment standards) into these areas through public and private sewage treatment plants, poorly designed septic disposal systems [or] both. Mechanisms shall include the Stormwater Management Conservation Ordinance, the formal agreement called for in Policy 1.1.10 and Policy 2.11.4 in the Coastal Management Element. Require all new development adjacent to marine, aquatic, environmentally sensitive and estuarine areas to prohibit depositing into any of these areas stormwater and domestic water that does not meet treatment standards set forth in Section 17-25.040(5), F.A.C., and the Escambia County Department of Health Regulations relative to septic tanks." CE Policy 1.1.11 adopts by reference Rule 17-25.040(5), F.A.C., which applies the exemptions of Rule 17-25.030, F.A.C., and expressly does not apply to existing development. Thus, CE Policy 1.1.11 does not identify surface water quality standards which are to be maintained for all development. Water quantity may adversely impact water quality especially in wetlands where water moves slowly. Development in and adjacent to wetlands adds runoff, silt and fertilizers to the wetland system. If these substances exceed the carrying capacity of the wetlands, adequate purification of the water does not occur before it enters into the estuaries. Development of wetlands also impairs their ability to retain water and absorb stormwater impact. The County has experienced problems associated with untreated stormwater runoff. The County's engineer has identified four main areas which experience stormwater runoff problems. In those areas the development is primarily single-family residential. Therefore, there is no rational basis for the County to exempt existing development and single-family development from its stormwater standards. There also is no basis in the data and analysis for the County to exclude duplexes, triplexes, and quadraplexes from the stormwater standards. The CE is required to include a policy addressing implementation activities for the restriction of activities known to adversely affect the survival of endangered and threatened wildlife. The County has many plants and animals which are threatened, endangered, and species of special concern. The data and analysis identifies threatened, endangered and special concern communities in Escambia County which were identified by the Florida Natural Areas Inventory. CE Policy 1.8.3 states: Endangered species habitats and unique natural areas, as identified by the Florida Natural Areas Inventory, shall be considered environmentally sensitive. Prior to development in these sections, the development site shall be inventoried for the presence of environmentally sensitive habitats. The results of this survey, as well as mitigation measures for protection of these features if found, shall be submitted as part of land development permit applications submitted for the project. This policy fails to take into consideration the known listed species already identified by the Florida Natural Areas Inventory as reflected in its data and analysis. This policy also does not address the habitats of threatened species and fails to establish specific criteria which will be applied to development in order to protect the functional viability of the habitats of endangered species. The CE is required to include a policy which addresses implementation activities for the protection and conservation of the natural functions of certain natural resources including rivers, wildlife habitat, estuarine and wetland areas. CE Policy 1.1.13 attempts to address these requirements. The policy reads: By December 1991, the County shall, in conjunction with federal, state and local agencies, develop a set of recommendations to further provide for protection of rivers, wildlife habitat, estuarine, and wetland areas. Once the study has been completed specific recommendations shall be forwarded to the Board of County Commissioners for inclusion to land development regulations. CE Policy 1.1.13 does not apply to the natural resources known to be present in the County. The data and analysis identifies numerous natural resources, such as rivers, wildlife areas, estuarine areas, and wetlands, whose natural functions qualify for immediate protection. Accordingly, the policy is not based on the data and analysis. CE Policy 1.1.13 also is not an adequate policy because it does not provide specific criteria which will be used to protect the natural functions of these resources. This policy refers to an undefined and uncommenced study which will be conducted in conjunction with federal, state and local agencies. The policy should include the specific criteria needed to protect the natural resources and be in place at the time of plan adoption, not at a later time such as December, 1991, or at the time of adoption of land development regulations. COASTAL HIGH HAZARD AREAS/HURRICANE EVACUATION The CME is required to include an objective for each goal statement which directs population concentrations away from known or predicted Coastal High-Hazard Areas. The plan contains no provisions to direct or discourage population concentrations away from Coastal High-Hazard Areas. CME Objective 1.8 states: Development or redevelopment in the coastal area shall occur only if minimum level of service standards for infrastructure is met or exceeded. The coastal area is defined by the County as including the area approximately one to one and a half miles inland from the shoreline, with the exception of the area adjacent to Escambia Bay along the bluffs. This includes the barrier islands in their entirety. This coastal area is depicted on Existing Land Use Map Series I which was submitted with the proposed plan. The plan defines the Coastal High-Hazard Area in CME Policy 2.2.1 as the area seaward of the Coastal Construction Control Line established by the Department of Natural Resources; Federal Emergency Management Velocity (V) Zones designated on the Flood Insurance Rate Maps for Escambia County; and areas which have historically received damage in areas scientifically predicted to receive water damage in a Category 3 hurricane. The Coastal High Hazard Area is included within the coastal area as defined by the County. CME Objective 1.8 is inadequate to serve the purpose of directing population concentrations away from Coastal High-Hazard Areas because it allows development to continue to occur so long as the levels of service standards are met or exceeded. There is no threshold cap for development or redevelopment. Based on the densities established in the FLUE, population concentrations are being directed toward the Coastal High-Hazard Area. Santa Rosa Island Sub-element Policy 1.4.5 establishes land use densities and intensities for Pensacola Beach. The land use designations of high density residential, high density residential/commercial and commercial are allowed within the Coastal High-Hazard Area of Pensacola Beach. Based on these designations, development of up to thirty (30) units per acre is allowed. High density residential allows multi-family development in the range of sixteen to thirty units per acre; high density residential allows a range of sixteen to thirty units per acre for residential uses or up to fifty units an acre with a special exception; commercial hotel allows the same densities as is allowed under high density residential/commercial. The densities established in Santa Rosa Sub-element Policy 1.4.5 represent an increase in development based on what is currently developed on Pensacola Beach in the Coastal High-Hazard Area. The plan encourages more development in the Coastal High-Hazard Area of Pensacola Beach. Santa Rosa Island Sub-element Policy 1.4.8 similarly allows an increase in density in the Coastal High-Hazard Area in Navarre Beach from what is existing there currently. The high density residential designation allows up to thirty dwelling units per acre and the commercial designation allows up to thirty units an acre or fifty units an acre with a special exception. Perdido Key lies entirely within the Coastal High-Hazard Area; however the designation for Perdido Key based on the Future Land Use Map is Mixed Use. Future Land Use Element Policy 3.1.5 allows Mixed Use to be developed between sixteen to fifteen dwelling units per acre and an unspecified mix of commercial which may cover up to eighty percent of the lot with impervious surface. The densities and intensities established for Perdido Key do not serve the purpose of directing population concentrations away from the Coastal High-Hazard Area; rather more development is encouraged to occur there. The plan's hurricane evacuation planning is based on the Tri-state Hurricane Evacuation Study and the Escambia County Peacetime Emergency Plan which are referenced in the data and analysis as sources. No data is available which isolates the evacuation time for just the unincorporated portion of Escambia County. However, it is estimated that the evacuation time for the entire County is approximately 14.25 hours. This is based on a medium response curve for a Category III hurricane event. CME Objective 2.1 states that the County will maintain a roadway clearance time for hurricane evacuation of twelve hours. This clearance standard is not met currently. No data and analysis have been provided to support the densities on the coastal barrier islands in relation to maintaining or improving hurricane evacuation times. Furthermore, the data and analysis do not indicate that the current clearance time to maintain is only 12 hours. Thus, the coastal area population densities have not been coordinated with the appropriate regional hurricane plan, the Tri-State Study, and there is no assurance of maintaining or improving the hurricane evacuation time. CME Objective 2.5 states that the County will adopt a post-disaster redevelopment plan for Escambia County that identifies short-term recovery and long-term redevelopment activities. This objective is inadequate because it does not identify any specific and measurable criteria. CME Policy 2.6.3.b., an implementing policy of CME Objective 2.5, reads: By 1992, incorporate in the Santa Rosa Island land development regulations, the following build-back policy, to be applied after a major natural disaster such as a hurricane . . . B. Structures damaged more than fifty percent of their replacement cost at the time of damage can be re-built to their original square footage and density, provided they can comply with: *Federal requirements for elevation above the 100-year flood level. *Building code requirements for floodproofing. *Current building and life safety codes. *State Coastal Construction Control Line. *Any required zoning or other development regulations (other than density or intensity), unless compliance with such regulations would preclude reconstruction otherwise intended by the build-back policy. *Any other relevant federal regulations. *Any other relevant local regulations, including lease agreements. *Any other relevant state regulations. CME Policy 2.6.3.b., allows structures damaged more than fifty percent to be rebuilt to their original square footage and density. Thus, this policy does not require redevelopment following disaster which will reduce or eliminate the exposure of human life in public and private property to future natural hazards. COASTAL MANAGEMENT The CME is required to include an objective that, following adoption of the plan, limits public expenditures to subsidize development permitted in Coastal High-Hazard Areas except for restoration or enhancement of natural resources. The CME is also required to include a policy designating Coastal High-Hazard Areas, limiting development in these areas, and relocating or replacing infrastructure away from these areas. The CME does not contain any objective or policy that adequately limits development of public expenditures subsidizing development in a Coastal High-Hazard Area. CME Policy 2.4.2 allows the development of public facilities in the Coastal High-Hazard Area provided that certain criteria are met. That policy reads: Public facilities shall not be located or improved in the Coastal High-Hazard Area unless the following criteria are met: the use is necessary to protect human life; the service provided by the facility cannot be provided at another location outside the Coastal High-Hazard Area; no alternate site is identified outside the Coastal High-Hazard Area; the facility is designed to provide the minimum capacity necessary to meet level of service standards for its service area; the total cost to build the facility to meet the Coastal Building Codes including floodproofing requirements does not increase the cost of the project beyond feasibility. CME Policy 2.4.2 does not limit the extension of facilities which subsidize development in the Coastal High-Hazard Area. The level of service will be the minimum criteria for the applicable land uses. As described above, the land uses tend to encourage development towards the Coastal High Hazard Area. Development may continue provided the level of service standards are met. CME Policy 2.1.10 states that the County will not allow the extension of water, sewer or storm drainage infrastructure to facilitate new permanent residential structures within the Coastal High-Hazard Areas of Escambia County for which the County has permitting authority unless state permits are first obtained. This policy does not limit the extension of facilities that subsidize development in the Coastal High-Hazard Area in the event that state permits are first obtained. No state permits have been identified which would independently have the effect of limiting development in the entire Coastal High-Hazard Area or relocating or replacing infrastructure away from this area. VESTED RIGHTS Policies 1.4.2, 1.4.3, 1.4.4 and 1.4.6 of the Santa Rosa Island Future Land Use Sub-element provide that leased property on Santa Rosa Island is exempt from the plan and land development regulations. FINANCIAL FEASIBILITY The comprehensive plan is required to contain a Schedule of Capital Improvements for which the local government has fiscal responsibility for the first five fiscal years following adoption of the plan and a list of projected costs and revenue sources by type of public facility for the five-year period. The Capital Improvements Element (CIE) is required to set forth a financially feasible plan which demonstrates that the local government can achieve and maintain the adopted level of service standards. The Schedule of Capital Improvements includes the expenditure of $9,400,000 for a Master Drainage Study and Facilities for the fiscal years 1990- 91 through 1994-95. The data and analysis identifies and recommends impact fees as the revenue source to fund the Master Drainage Study and Facilities. The County has not adopted an impact fee for drainage or stormwater management, or even for the study. In May 1991, the Board of County Commissioners considered alternative methods of funding for stormwater management. The Board of County Commissioners rejected the implementation of a municipal service benefit unit for stormwater. Instead, the Board of County Commissioners adopted the alternative of development and implementation of a stormwater utility fee which requires approval of the voters at a referendum. At the time of plan adoption and the time of the hearing, the referendum had not taken place. There is no guarantee that the voters will approve the referendum. Therefore, it cannot be said that the Master Drainage Study and Facilities will be funded through fiscal year 1994-95. CIE Policy 1.4.1 states: Existing and future development, including those on Santa Rosa Island, directly benefiting from stormwater management improvements shall bear a proportionate cost of stormwater facility capital improvements. Further, the Board of County Commissioners shall consider, and implement as it deems necessary, impact fees for other public facilities. CIE Policy 1.5.1 states: The Board of County Commissioners shall develop and implement any alternative revenue sources needed to properly fund the Capital Improvements Element which could include, but not be limited to, property taxes, special assessments and other forms of revenue raising measures. Neither Capital Improvements Element Policy 1.4.1 nor Policy 1.5.1 establishes the impact fees necessary to fund the Drainage Study and Facilities or identifies viable revenue sources. Therefore, the Master Drainage Study and Facilities, identified in the Schedule of Capital Improvements, is not funded and is not financially feasible. XII CONCURRENCY MANAGEMENT Minimum requirements for a Concurrency Management System mandate that the system ensure that facilities and services needed to support development are available concurrent with the impacts of such development. Prior to the issuance of a development order or development permit, the Concurrency Management System must ensure that the adopted level of services standards required by roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation and mass transit, if applicable, will be maintained. The Concurrency Management System contained in the Capital Improvements Element of the plan provides that facility capacity may be determined or counted as existing capacity, provided facilities were in the procurement cycle or if there is a binding executed contract for construction of the facility. This provision is overly broad and, hence, inadequate to meet rule requirements. The minimum requirements for concurrency are not uniform in every respect for the various types of public services and facilities needed to support development. For parks and recreations, the local government may satisfy the concurrency requirements through a binding executed contract which provides for a commencement of the actual construction of the required facilities or the provision of services within one (1) year of the issuance of the development permit in addition to other criteria. However, rule requirements in Chapter 9J-5, F.A.C., do not permit use of a binding executed contract to ensure concurrency for potable water, sewer, solid waste, and drainage facilities. The Concurrency Management System provides, on page 11-xi of the plan, that facility capacity may be counted if "the new facilities are guaranteed in an enforceable development agreement and is consistent with the Capital Improvements Element of the Comprehensive Plan." This is contrary to the requirements of Rule 9J- 5.0055(2)(a)(4), F.A.C., which contains minimum criteria for meeting concurrency through an enforceable development agreement. Those minimum criteria, which include the provisions of Rules 9J-5.0055(2)(a)1.- 3., F.A.C., are not recited in any provision of the Concurrency Management System or the Capital Improvements Element. The Concurrency Management System does not establish guidelines for interpreting and applying level of service standards to applications for development orders and permits and for determining when the test for concurrency has been met. The Concurrency Management System also does not contain guidelines for measuring the level of service and capacity of public facilities. Santa Rosa Island Future Land Use Sub-element Policy 1.1.3 indicates that the Concurrency Management System does not apply to Pensacola Beach. That policy reads: "By May 1991, the County shall adopt a Concurrency Management System in coordination with the Santa Rosa Island Authority to implement the Level of Service Standards of the Escambia County Comprehensive Plan as applicable to the Pensacola Beach." Santa Rosa Island Future Land Use Sub-element Policy 1.1.1 states: Development orders and/or permits for future development and redevelopment activities on Santa Rosa Island shall be issued only if public facilities necessary to meet level of service standards, adopted as a part of the Capital Improvements Element of the Escambia County Comprehensive Plan, are available concurrent with the impacts of development or are guaranteed in an enforceable development agreement pursuant to Section 163, F.S. and Rule 9J-5.0055, F.A.C., or an agreement or development order pursuant to Chapter 380, F.S. Santa Rosa Sub-element Policy 1.1.1 does not contain a provision that the necessary facilities and services will be in place when the development of impacts occur or, in lieu thereof, that the agreement must include the provisions of Rules 9J-5.0055(2)(a)1.-3., F.A.C. The Pensacola Beach Concurrency Management System was not adopted in the plan. Thus, the plan does not establish countywide concurrency. Santa Rosa Sub-element Policy 1.1.3 also is insufficient as it defers implementation of adoption of a concurrency management system until May 1991. The Concurrency Management System must be in place at the time of plan adoption. The Concurrency Management System does not clearly indicate the latest point in the application process for the determination of concurrency. The Concurrency Management System must indicate at what point in the application process final approval of a specific plan for development occurs and that this be prior to the determination of concurrency. The Concurrency Management System indicates that this point is the "final sign-off", however, that term is not defined and its meaning is opaque. LEVEL OF SERVICE STANDARDS Each local government is required to establish level of service standards for ensuring that adequate facility capacity will be provided for future development and for purposes of issuing development orders or permits pursuant to Section 163.3202(2)(g), Florida Statutes. The level of service standards must be set for each individual facility or facility type within the local government jurisdiction and not on a system-wide basis. The purpose of the sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element is to provide for necessary public facilities and services correlated to future land use projections. The sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element of the plan must contain policies which address implementation activities for establishing and utilizing level of service standards in accordance with rule requirements. The County has not adopted a level of service standard for drainage which will be applied to all development. Drainage Sub-element Policy 2.1.3 states: The level of service standard for stormwater water quality shall be the minimum Florida Department of Environmental Regulation Standards, Section 17-25.040(5), Florida Administrative Code. Single-family dwellings not part of a larger development will be exempt from the level of service requirements. As discussed above under Protection of Natural Resources, Section 17- 25.040, F.A.C., does not apply to new facilities. Thus, the County has not adopted a drainage level of service standard for existing facilities, as it must. Drainage Sub-element Policy 2.1.3 is also insufficient because it has not removed other exemptions included in Chapter 17-25.030, F.A.C.,: the single family, duplex, triplex and quadraplex exemption. This policy specifically exempts single-family dwellings not part of a larger development from the level of service standard, but is silent as to the other exemptions of Chapter 17-25, F.A.C. No such exemptions from the drainage level of service standards is authorized by Rule 9J-5, F.A.C. Santa Rosa Sub-element Policy 1.1.2 states in pertinent part: "Development approval is conditioned upon, but not limited to a determination of whether the following level of service standard can be met: (1) the post- development peak rate of stormwater discharge will not exceed the pre- development peak rate based upon the 25-year stormwater event of critical duration . . ." This level of service standard is inadequate because it ignores such critical factors as water quality. The Traffic Circulation Element (TCE) is required to include a policy establishing level of service standards at peak hours for all roads located within the government's jurisdiction. Subsection 9J-5.005(3) and subparagraph 9J-5.015(3)(b)3., F.A.C. A portion of SR 30/Pensacola Bay Bridge lies within the boundaries of unincorporated Escambia County. The Pensacola Bay Bridge starts in the City of Pensacola and terminates in Gulf Breeze, Santa Rosa County. Between the starting point of the bridge on the Pensacola side and the County line, which is over the Pensacola Bay, a portion of the bridge lies within the jurisdiction of Escambia County. The Department of Transportation General Highway Map, upon which the County-wide Future Land Use Map is drawn, depicts the County boundaries between Escambia County and Santa Rosa County. This map shows that Escambia County has jurisdiction over SR 30 between the City of Pensacola and midway between the mainland and Gulf Breeze. Approximately 1.5 miles of the bridge lies within the jurisdiction of the County. According to the data and analysis, SR 30/Pensacola Bay Bridge currently is operating at a level of service "F". This level of service is applied in the plan. 2/ The TCE is required to include a policy which establishes level of service standards at peak hours for roads within the local government's jurisdiction. These standards must be consistent with Florida Department of Transportation's policies. TCE Policy 1.1.1 adopts peak hour minimum acceptable operating level of service standards for County roads. The level of service standards for Transportation Planning Areas vary for various roadway types (freeways, principal arterials, minor arterials) depending on the area classification (existing urbanized, transitioning urban, rural). The policy also adopts a "deficient" level of service standard of "F" (existing) for the Pensacola Bay Bridge which it separately classifies as a Special Consideration (Backlogged Facility). The policy defines backlogged facilities as "roadways which do not meet the minimum acceptable level of service standards, are not in a Special Transportation Area, not constrained and are not scheduled for capacity improvement." The Pensacola Bay Bridge is a principal arterial road. The recommended Florida Department of Transportation level of service for the bridge is "D". A level of service of "D" indicates a range of speed of 17 to 21 miles per hour. A level of service of "F' indicates a range of speed of 0 to 13 miles per hour. The "F" standard cannot be violated because traffic may not be slowed below zero miles per hour. No specific measure of current operating conditions is provided to ensure the operating conditions will be maintained and improved. As long as existing bridge traffic exceeds 0 miles per hour, TCE Policy 1.1.1 allows the bridge road to continue to degrade. This is no standard at all. Capital Improvements Element Policy 1.3.3 commits the County to certain level of service standards for various services and facilities, including traffic circulation. That policy states in pertinent part that capital improvement projects adopted by Escambia County shall maintain level of service standards as reflected in the policy's tables. A schedule of level of service for Traffic Circulation Facilities is included in the policy. Capital Improvements Element Policy 1.3.3 establishes level of service standards for Special Transportation Areas, but does not establish specific level of service standards for Constrained Facilities and Backlogged Facilities. This policy commits to a level of service standard for Constrained Facilities for freeways, principal arterials, minor arterials, and others as "maintain." As to Backlogged Facilities, the policy commits to "maintain and improve" freeways, principal arterials, minor arterials, and others. As written, the level of service standards "maintain" and "maintain and improve" are not specific and measurable, are internally inconsistent with the specific level of service standards adopted in TCE Policy 1.1.1 (i.e., "C", "D"), and allow for future revision without undergoing the plan amendment process. The Capital Improvements Element (CIE) is required to include a policy for each objective which establishes level of service standards for public facilities within the local government's jurisdiction. These standards are required to be those found in the other local government comprehensive plan elements. The Drainage Sub-Element is required to include a policy addressing implementation activities for establishing and utilizing level of service standards for design storm return frequency for Drainage Facility Capacity. Drainage Sub-element Policy 2.1.3 adopts Rule 17-25.040(5), F.A.C., as the level of service standard for Stormwater Water Quality. That rule requires that facilities which directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Rule 17-25.025(9), which in turn requires an additional level of treatment equal to 50 percent more than the one-half inch requirement for sites less than 100 acres and one-inch of run-off from sites greater than 100 acres. CIE Policy 1.3.3 includes a level of service standard for drainage facilities. The policy states in pertinent part that for projects with drainage areas greater than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one inch of run-off from storm rainfall; for projects with drainage areas less than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one-half inch of run-off from storm rainfall; and for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration the level of service standard requires that a drainage system allow for discharges equal to pre-development levels unless an engineering analysis using professionally accepted methodologies demonstrates that a differing discharge rate should be used. This policy is internally inconsistent with Drainage Sub-element Policy 2.1.3 because CIE Policy 1.3.3 does not provide for the additional level of treatment for stormwater discharge facilities which directly discharge to Outstanding Florida Waters. CIE Policy 1.3.3 level of service standard for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration is not specific and measurable. This provision allows for the possibility of post- development run-off rate to exceed pre-development rates by allowing a different, presumably a higher, discharge rate to be used instead maintaining pre-development levels. There is no data and analysis to support an increase in discharge beyond pre-development levels. The Coastal Management Element is required to include an objective establishing level of service standards, areas of service and phasing of infrastructure in the coastal area. While CME Policy 1.8.1 establishes coastal area levels of services for sanitary sewer, solid waste, drainage, potable water, and recreation and open space, it does not include a level of service standard for traffic circulation. The primary sanitary sewer service provider in Escambia County is the Escambia County Utilities Authority. The data and analysis shows the existing level of service for sanitary sewer to range between 61.5 and 176 gallons per capita per day for wastewater treatment facilities owned by Escambia County Utilities Authority. For example, the Avondale facility has an existing level of service of 61.5 gallons per capita per day, the Mainstreet facility has an existing level of service of 99.8 gallons per capita per day, and the Navarre Beach Facility has an existing level of service of 176 gallons per capita per day. Sanitary Sewer Sub-element Policy 1.2.1 states: Escambia County hereby adopts 75 gallons per capita per day as level of service standard for the provision of sanitary sewer facilities in the Escambia County Utilities Authority service area, and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. Sanitary Sewer Sub-element Policy 1.2.3 states: "The County, through a Certificate of Availability, shall verify the capacity of public sewer systems prior to issuing development permits to ensure that adequate capacity to meet level of service standards (which is 100 gallons per capita per day) is available." The 100 gallons per capita per day level of service referenced in this policy is inconsistent with Sanitary Sewer Sub-element Policy 1.2.1 which adopts a level of service of 75 gallons per capita per day for Escambia County Utilities Authority Facilities and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. This internal inconsistency creates confusion as to which level of service standard is in fact being adopted and will be used for the issuance of development orders. The County is responsible for the disposal of all solid waste within its jurisdiction through the County's Department of Solid Waste. The level of service is established in Solid Waste Sub-element Policy 1.1.1 which states: "The County will provide the capacity to dispose of 7 pounds of solid waste per capita per day." Table 11 of the Solid Waste Sub-element Data and Analysis shows the projected generation of solid waste for the County from the year 1986 through the year 2000. Table 11 Projected Generation for Escambia County Year County Population Annual Tonnage lbs/capita/day 1986 230,250 309,000 7.4 1990 255,552 324,450 7.0 1995 274,520 340,670 6.8 2000 289,368 357,700 6.8 There is no data and analysis which relates the actual capacity of the landfill with the need projections of Table 11. Hence, the data and analysis fails to adequately support Solid Waste Sub-element Policy 1.1.1 and the policy's assurance that the County will provide adequate land-fill space. Potable Water Sub-element Policy 1.1.1 adopts two levels of service standards for the provision of potable water: Escambia County Utilities Authority - 75 gallons per capita per day and all other service providers - 100 gallons per capita per day. Escambia County is served by 10 public water supply systems, none of which are operated by the County. The largest public water supply system is operated by Escambia County Utilities Authority which has an existing level of service of 157.3 gallons per capita per day in Zone 2 and 101.6 gallons per capita per day in Zone 1. Table 12 of the Potable Water Sub-element Data and Analysis shows water system demand and plant facilities for 15 facilities, including facilities operated by private owners, the Town of Century, the Special District of Escambia Utilities Authority, and the Federal Government, Santa Rosa County, and the State of Florida. Nine of the facilities not operated by Escambia Utilities Authority are below 100 gallons per capita per day. The data and analysis do not adequately support Potable Water Sub- element Policy 1.1.1 and the aim of the policy to ensure that service providers currently providing less than 100 gallons per capita per day be able to meet that level in the event of future demand. AFFORDABLE HOUSING The Housing Element of the plan is required to contain an objective providing adequate sites for housing for low and moderate income families, and for mobile homes. The Housing Element's data and analysis concludes that affordable housing for persons in the very low, low and moderate income ranges should not exceed 30 percent of family income. By 1987 standards, these family income limits translate into less than $13,151 for very low income families and between $13,152 and $21,040 for low/moderate income families. The data and analysis does not state what the demand for new affordable housing construction will be through the planning period. Housing Element Objective 1.2 states: "Based on existing available resources provide for the rehabilitation of a minimum of 90 substandard homes and 10 new affordable housing sites annually." This objective is not quantitatively supported by the data and analysis and fails to describe the types of housing that will be constructed at the sites, i.e., single family dwellings, multi-family dwellings, or apartment buildings. The Housing Element is required to include a policy for each objective which addresses implementation activities for the improvement in the regulatory and permitting processes, if deemed necessary by the local government. Housing Element Policy 1.1.4 states: Develop a permit review process (that will include a checklist and flow chart) that will take into consideration the following aspects in order to expedite and help facilitate affordable housing projects: Fast track permitting process which will provide for concurrent review of all permits; Waiving or use of weighted permit fees; and Waiving or use of weighted County imposed impact fees. Although the need to improve the regulatory and permitting processes is identified, there is no assurance that the methods to expedite affordable housing projects outlined in Housing Element Policy 1.1.4 will be implemented because the policy merely states that those methods will be taken "into consideration." The policy is subject to interpretation and may or may not be implemented despite the identified need to expedite affordable housing projects. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN For the reasons set forth below, the plan is inconsistent with the state plan, construced as a whole. The plan is not consistent with and fails to further State Comprehensive Plan Goal 5(a) relating to housing, which states: The public and private sectors shall increase the affordability and availability of housing for low- income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost-effective operations. The vagueness of Objective 1.2 of the plan's housing element fails to further this goal or policy 3 of this state goal, which relates to increasing housing availability for low and moderate income persons and elder persons. Policy 4 of this goal addresses reduction of housing costs through elimination of unnecessary regulation which adds to the cost of housing. The plan's lack of specific implementing actions that will be taken with regard to this policy establishes that the plan is not consistent with and does not further this state goal. Densities and intensities of land use in the plan which increase runoff and inadequacies of level of service for drainage facilities make the plan inconsistent with state goal 8(a) relating to water resources and the need to assure availability of water quantity for reasonable and beneficial uses while maintaining the present level of surface and ground water quality. These inadequacies of the plan also fail to further policy 8(b)2 of the state goal requiring the identification and protection of water recharge areas. The plan also fails to further state policy 8(b)5 of this goal since the plan does not ensure that new development will be compatible with existing local and regional water supplies. The distribution pattern and intensities and densities of land use and the plan's inadequate approach to existing and future deficiencies of drainage issues also prevent the plan from being consistent with state policies 8(b)8-13, which seek to encourage development of floodplain management; preserve hydrologically significant wetlands and other natural floodplain features; support the protection of aquifers from depletion and contamination; protect surface and groundwater quality and quantity; promote water conservation; provide for elimination of discharge of inadequately treated wastewater and stormwater runoff into the waters of the state; and support alternative methods of wastewater treatment, disposal, and reuse to reduce degradation of water resources. The plan fails to further and is not consistent with state goal 9(a) which provides: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the state's population additional beaches and marine environment, consistent with sound environmental planning. Policies of this goal include: Policy 1 which seeks the acceleration of public beach acquisition; policy 2 which ensures public beach access; policy 3 which emphasizes the importance of avoiding expenditure of funds to subsidize development of coastal high hazard areas; policy 4 which protects coastal resources, marine resources and dune systems from the adverse effects of development; policy 5 which seeks development of a planning system ensuring the continued attractive image of coastal areas; policy 6 which requires compatibility of land and water uses with protection of sensitive coastal resources; policy 7 which requires protection and restoration of productivity of fisheries and habitat; and policy 9 which prohibits development of other activities which disturb dune systems. The plan is not consistent with either the goal or policies 1-7 and 9 due to the plan's inadequacies with regard to preservation or conservation of coastal resources; density and development patterns along the coastal area; level of proposed development; and the failure of land uses on the future land use map to be compatible with sensitive coastal resource protection. The plan is inconsistent with and does not further state goal 10(a) which requires the protection of unique natural habitats and ecological systems such as wetlands and various vegetative species, as well as restoring degraded natural systems to a functional condition. Deficiencies within the plan's objective and policies, as well as the failure to depict wetlands and floodplains on an adopted FLUM, prevent a finding that policy 1 of the goal, regarding conservation of forests, wetlands, fish, marine life, and wildlife, is consistent with or furthered by the plan's objectives and policies. Other policies of this goal where objectives, goals and policies of the plan fail to establish specific implementing actions necessary to a finding of consistency with the state plan include: Policy 2 regarding the acquiring, retaining, managing, and inventory of public lands to provide recreation, conservation, and other public benefits; policy 3 relating to prohibition and destruction of endangered species and protection for their habitats; policy 4 relating to establishment of an integrated regulatory program to assure the survival of endangered and threatened species within the state; policy 5 relating to the promotion of agricultural practices compatible with protection of wildlife and natural systems, which is specifically not supported by the plan's relatively high residential densities in some agricultural areas of 1-5 units per acre; policy 6 relating to maximizing use of forest resources where again the plan's densities and distribution of those densities on the land use map prevent consistency; policy 7 relating to protection and restoration of the ecological functions of wetland systems; policy 9 relating to an acquisition program to ensure the integrity of Florida's river systems, which is unsupported by any provision of the plan to establish such a county program; policy 10 relating to acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation; and policy 11 relating to state and local efforts to provide recreational opportunities to urban areas, including the development of activity-based parks. The plan is inconsistent with and does not further state goal 16(a), which states: In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Likewise the plan is inconsistent with and fails to further policy 2 of state goal 16(a), relating to development of incentives and disincentives to encourage separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. The failure to further this policy highlights the fundamental shortcoming of the plan as to densities and intensities and distribution of those uses. Policies 4 and 6 of state goal 16(a) are not furthered by and are inconsistent with the plan. Policy 4 provides for development of a system of intergovernmental negotiation for siting locally unpopular public and private land uses, but the plan does not provide how the county will address this subject. Policy 6 requires consideration, in land use planning and regulation, of the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. The distribution of land uses shown on the future land map and the lack of adequate policies prevent the plan from furthering this policy. Goal 20 of the State Plan relates to transportation and provides: Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. The plan does not address coordination between land uses and the transportation system. Therefore this goal is not furthered by the plan. Policy 3 of Goal 20 relates to promotion of a comprehensive transportation planning process coordinating state, regional, and local transportation plans. The plan adopts a level of service "F" for the Pensacola Bay Bridge which designation fails to provide any point at which development orders should be denied. This adopted level of service permits unlimited degradation and therefore does not further and is not consistent with the state plan. Policy 12 of Goal 20 of the state plan requires local governments to eschew transportation improvements which encourage increased development in coastal high-hazard areas or in environmentally sensitive areas such as wetlands, floodways, or productive marine areas. The high densities of use provided in the plan for coastal areas will inevitably cause demand for improved transportation systems in these areas and consequently fail to further this policy. The requirement of policy 13 of goal 20 to coordinate transportation improvements with state, local, and regional plans is not furthered by a level of service designation in the plan, such as the one for Pensacola Bay Bridge, which does not ensure that improvements can be coordinated. A level of service designation such as that accorded the bridge permits complete degradation without necessarily requiring coordination for expansion of the facility. The plan fails to address, and thus does not further, Policy 14 of goal 20, addressing acquisition of advanced rights-of-way for transportation projects in designated transportation corridors consistent with state, regional, and local plans. Policy 15 of goal 20, relating to promotion of effective coordination among various modes of transportation in urban areas to assist urban development and redevelopment efforts, is not addressed or furthered by the plan. The plan is not consistent with and does not further transportation goals and policies of the state comprehensive plan. The lack of adequate policies and high density of residential use in agricultural areas in the plan prevent the plan from furthering goal 23 of the state comprehensive plan, which reads as follows: Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, agriculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Goal 26 of the state comprehensive plan reads as follows: Systematic planning capabilities shall be integrated into all levels of government in Florida, with particular emphasis on improving intergovernmental coordination and maximizing citizen involvement. Policy 4 of Goal 26 relating to the need to simplify, streamline, and make more predictable the existing permitting procedures, is not furthered or consistent with plan as a result of the plan's failure to adequately define what would be done to simplify the regulatory process. CONSISTENCY WITH THE REGIONAL POLICY PLAN The plan is inconsistent with the West Florida Regional Policy Plan (the regional plan), construed as a whole, for the reasons listed below. The vagueness of Housing Element objective 1.2 with regard to provision of 10 new housing sites is inconsistent with Regional Goal 2 of Regional Issue 19, related to housing, contained in the regional plan. The plan fails to further that goal, which provides: By 1990, affordable, safe and sanitary housing for low and moderate income households and the elderly population which will increase by 10% over 1985 levels. The failure of the plan to address Goal 3 of Regional Issue 19 contained in the regional plan with regard to elimination of housing discriminatory practices is a significant inconsistency with the regional plan. The failure of the future land use map to identify existing and planned waterwells constitutes an inconsistency with goal 1 of regional issue 37 of the regional plan. That goal reads: By 1995, Regional water supply authorities shall be established throughout the Region which shall adopt water supply plans that incorporate water conservation programs, protection of water recharge areas and existing and future well sites, and identify vulnerable water supplies that local governments should regulate to limit development. As a result of the failure of the plan to set out densities and intensities of land use which serve to protect natural resources, as well as deficiencies of the plan with regard to drainage facilities, the plan does not further regional goal 1 of regional issue number 38. That goal provides: By 1995, the Region's potable aquifers shall be protected from depletion and contamination to ensure adequate quality of the Region's water resources to meet current and long-term needs for all reasonable-beneficial uses. Inadequate protective policies within the plan are inconsistent with the regional plan. Some of those inadequacies include inadequate drainage level of service standards, allowance of septic tanks in unsuitable areas, and high densities covering high aquifer recharge areas with impervious services. These plan policies are inconsistent with regional goal 1 of regional issue 39, Natural Systems Protection, which provides: By 1995, 10 percent of regional natural water systems will be protected, maintained, and their natural processes restored. The densities and intensities of use proposed by the plan for the barrier islands and in some of the coastal areas are very high and negatively impact resources of the land. This is particularly so with regard to densities and intensities of use established in Pensacola Beach, Navarre Beach and Perdido Key areas. The inadequacies of policies within the plan do not further goal 1 of issue 40 of the regional plan relating to protection of beach and dune systems. That goal reads: By 1990, land use guidelines will be adopted which protect beach and dune systems. Goal 1 of regional issue 41 is not furthered by provisions of the plan, specifically the lack of adequate level of service standards for drainage. This goal of the regional plan provides: By 1990, land use and coastal zone planning will be coordinated with the protection and management of marine fisheries habitat. Regional issue 43 of the regional plan addresses protection of natural resources. Goal 1 of that issue is not furthered due to the previously mentioned inadequacies of the plan, plus the lack of inclusion of a wetlands map and floodplains map as part of the adopted comprehensive plan. This goal of the regional plan provides: By 1990, state and local regulatory programs shall be designed to appropriately use and protect the Region's functioning natural systems. Endangered and threatened species are addressed by issue 44 of the regional plan. Goal 1 of that issue provides: By 1995, the number of native species in the Region on the official list of Endangered and Potentially Endangered Species of Fauna and Flora in Florida (FGFWFC) shall be reduced by 5 percent. The lack of planning directives and controls upon development in the county by goals, objectives and policies of the plan, prevents a finding that the plan furthers this goal. Regional issue 45 regarding the management of public and private land in a manner that permits continued functioning of natural systems is not furthered by the plan. Again, the densities and intensities of use established by the plan; the lack of control over development permitted by the plan; and specifically, the failure of the plan to include an adopted map of wetlands and floodplains establishes the plan's failure to further goal 1 of this issue. That goal provides: By 1990, public and private lands will be managed and land resources used according to comprehensive, economic and environmental principles, especially critical areas including, but not limited to coastal lands, wetlands, flood plains, margins of estuarine nursery areas, and locally important agricultural lands. Regional issue 58, regarding natural resource preservation and coordination between potable water and wastewater treatment facilities and land uses with regard to aquifer protection, is not furthered by the plan in view of the plan's provisions which fail to discourage urban sprawl and, instead, permit urban development to spread and negatively impact natural systems. Goal 1 and goal 2, respectively, of this issue of the regional plan read as follows: Regional goal 1 By the year 1991, local land use planning will be fully coordinated with planning for the provision of potable water and wastewater treatment and disposal. Regional Goal 2 By the year 1991, each local government in the Region will use review procedures that consider cumulative impact of development on natural resources. Neither of these goals is furthered by the plan. Because level of service standards established in the plan's Capital Improvements Element (CIE) permit inadequate roadway level of service standards with regard to the Pensacola Bay Bridge and permit the change of such level of service standards simply by having a roadway definitionally reclassified, regional issue 63 and regional goal 1 of that issue are not furthered by the plan. Regional goal 1 of the issue reads: By 1995, all modes of transportation planning will be integrated to efficiently, economically and safely accommodate transportation needs in the West Florida Region. Regional issue 64 addresses transportation planning to aid growth management. Regional goal 1 of the issue provides that planned development patterns and land use permitting will conform and coordinate with existing or programmed state and local transportation systems by 1991. Regional goal 2 of this issue provides that land development codes will include an analysis of transportation impacts, provide for protection of transportation rights-of-way, and establish private sector sharing of the cost of transportation facilities by 1991. Inasmuch as traffic analysis under the plan appears based on historical projections, as opposed to the impacts of future land use permitted by the plan, the plan does not further this issue or goals 1 and 2. Regional issue 69 of the regional plan and goals 1 through 4 of that issue are not furthered by the plan in view of the relatively high densities and intensities of residential use permitted in agricultural areas. Such usage for residential purposes does not ensure that agriculture will be protected.
Recommendation Based upon the foregoing findings and fact and conclusions of law, it is hereby recommended that a final order be entered finding that the Escambia county Comprehensive Plan is not in compliance. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 19th day of February, 1992.
The Issue The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
Findings Of Fact The Parties Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2 There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property. Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired. His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.) Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213. The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.) The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196. The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands." Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great." Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214- 215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220. The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately 400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411. The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding. § 163.3187(1)(c), Fla. Stat. The Application, Review, and Adoption of the Plan Amendment On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13. The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated: To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise. JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at 12-13.) The application was reviewed, in part, by Mr. Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section 4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.) The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1. The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1. Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id. The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2. The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made: Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area. Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and the LDR Code and if the site is seen as environmentally significant. JE 7 at 4 (italics in original). Ultimately, staff recommended approval only with the following conditions: 1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and 2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy. JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.) On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15. Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint. Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4. Mr. Thomasson addressed the Planning Board. JE 11 at The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8. Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that 13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9. Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9. Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id. at 9-11. Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13. Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id. The requested land use change was approved by a vote of three to two. Id. at 14. On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294. During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven hundred homes will not materially affect level of service." JE 10 at 289. Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292. Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292. Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293. After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294. By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228; PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated: What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan. PE 69 at 2 (emphasis in original). Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3. Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254. On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995. Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5. Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5. Dr. Bingham also addressed the Commission. JE 8 at He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id. After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31. Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was approved by the City Commission on November 9, 2004. JE 8 at 31-32. Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20." JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2. Data and Analysis As more fully discussed in the Conclusions of Law, "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources." Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data shall be the best available existing data, unless the local government desires original data or special studies." Fla. Admin. Code R. 9J-5.005(2)(c). Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate. The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment. Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456. As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A. Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities." Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435. Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential development on the Property. T 434-435, 450. But see Endnote 7. From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441. Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466. Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475. Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id. Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476. For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2. Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548. Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6. Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats. T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525. Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess. T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii. Although he did not "review any set of plans," or have any opinion regarding any specific development proposal, Mr. Friedemann opined that based on his observations in the field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520. Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida. T 501-502. Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1. Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides. T 532-533. Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T 533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538. Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part: Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability. T 586. See also T 610-611. Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622, 629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 - 1-10. During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626. Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628. Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment." T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.) Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11 The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one- third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1. Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D. Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6. The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12. Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3): The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation. Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to develop the upland areas located on this parcel. PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.) Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13. The Genesis Report discussed wetlands on the Property: The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush. Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A). As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE. PE 50 at 13. The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15. Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16. The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50. Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.) Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177. The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186. Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182. "Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map. Ultimate Findings of Fact Regarding Adequacy of Data and Analysis Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his analysis of that information, her opinions have also been disregarded. Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See § 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013. Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4. Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e. Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan. The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district. Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan. Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
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 concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. S 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 6th day of October, 2005.
The Issue Whether Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Each of the four Petitioners owns property in Escambia County and submitted written or oral comments regarding the Plan Amendment to the County between the date the Plan Amendment was transmitted to the Department of Economic Opportunity (“Department”) and the date it was adopted by the County Commission. Escambia County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive land use plan, pursuant to section 163.3167, Florida Statutes (2019). Existing Conditions There are approximately 610 square miles of land in the unincorporated County. Of that, almost half (48.75 percent) is designated for agricultural use. Escambia County can be roughly described as an hourglass shape. The northern portion is dominated by agricultural uses and is overwhelmingly designated as Agricultural on the County’s 2030 Future Land Use Map (“FLUM”). The Agricultural (“AG”) land use category allows a maximum residential density of one dwelling unit per 20 acres (“1du/20 acres”). In contrast, the southern portion has a much more urban development form. The central urban core, located west of the City of Pensacola, is designated as Mixed-Use Urban, with a sprinkling of Industrial designations, and Commercial designations along the major thoroughfares. Radiating out to the north and west of the urban core is a swath of Mixed-Use Suburban, with some areas designated for Recreation, and Commercial along major thoroughfares. Farther west are lands designated for Conservation, which extend to the Perdido River, the County’s western boundary. The “neck” of the hourglass serves as a transition between the agricultural northern portion and the urban and suburban southern portion of the County. The dominant future land use categories in this area are Agriculture, Mixed-Use Suburban, and a category critical to this case, Rural Community, or “RC.” Rural Communities According to the Comprehensive Plan (“the Plan” or “the existing Plan”), the RC FLUM category is: ntended to recognize existing residential development and neighborhood serving nonresidential activity through a compact development pattern that serves the rural and agricultural areas of Escambia County. The designation was applied to pockets of mixed residential and commercial developments that served the agricultural areas in existence when the Plan was originally adopted. The FLUM depicts roughly 20 RCs in the County, almost all of which are located in the northern portion. The uses allowed in RC are agriculture, silviculture, residential, recreational facilities, public and civic, and compact traditional neighborhood supportive commercial. Development is limited to a residential density of two units per acre (“2du/acre”), but does not impose a cap on the intensity of commercial development. The County’s policy in establishing and maintaining RCs is best reflected in Goal FLU 3 and its implementing Objective and Policies, which read, as follows: GOAL FLU 3 Rural Strategies Escambia County will promote rural strategies, including protecting agriculture, silviculture, and related activities, protecting and preserving natural resources and guiding new development toward existing rural communities. OBJ FLU 3.1 Rural Development All new development within the rural areas, including commercial development, that is compatible with the protection and preservation of rural areas[,] will be directed to existing rural communities. Policies FLU 3.1.1 Infrastructure Expenditures. Escambia County will limit the expenditure of public funds for infrastructure improvements or extensions that would increase the capacity of those facilities beyond that necessary to support the densities and intensities of use established by this plan unless such expenditures are necessary to implement other policies of this plan. FLU 3.1.2 Water Facility Extensions. Escambia County will coordinate with potable water providers on any extensions of potable water facilities in the rural area. FLU 3.1.3 FLUM Amendments. During consideration of FLUM amendments, Escambia County will consider the impacts of increased residential densities to the agriculture and silviculture industries as well as public facility maintenance and operation expenditures (i.e., roads, water, sewer, schools) needed to serve the proposed development. FLU 3.1.4 Rezoning. Escambia County will protect agriculture and the rural lifestyle of northern Escambia County by permitting re-zonings to districts, allowing for higher residential densities in the RC future land use category. FLU 3.1.5 New Rural Communities. To protect silviculture, agriculture, and agriculture-related activities, Escambia County will not support the establishment of new rural communities. Designated Sector Area Plan The Designated Sector Area Plan (“DSAP”) was created and adopted in the Plan in 2011, and comprises approximately 15,000 acres in the transitional area between the urban and suburban south County and rural and agricultural north County. The DSAP plans for the location of traditional urban neighborhoods, new suburban and conservation neighborhoods, and regional employment districts, and includes the location of existing and planned public facilities to serve the new development. As noted by the County’s Development Director, Horace Jones, in August 2018, the primary purpose of the DSAP was to “prevent urban sprawl into the agrarian and rural communities . . . so that we can’t continue to intrude upon those prime farmland areas, upon those large parcels of land in the AG category.” At the final hearing, Mr. Jones several times confirmed that the purpose of the DSAP was to prevent urban sprawl into the agricultural areas of the County. As noted by the County’s Senior Urban Planner, Juan Lemos, in August 2018, “We haven’t gotten to that point where we need those agricultural lands to build houses for people . . . or to develop businesses[.]” At final hearing, Mr. Lemos confirmed that his opinion on that issue has not changed.3/ The Plan Amendment The Plan Amendment, plainly and simply, deletes FLU 3.1.5 in its entirety. The Plan Amendment represents a policy change by the County to allow consideration of plan amendments establishing new RCs in the County. Petitioners’ Challenges Petitioners allege the Plan Amendment is not “in compliance” because it: (1) creates internal inconsistencies in the existing Plan; (2) is not based on relevant and appropriate data and an analysis by the local government; and (3) fails to discourage urban sprawl. Internal Inconsistencies Petitioners allege the Plan Amendment is inconsistent with FLU Goal 3, “Rural Strategies,” and Objective 3.1, “Rural Development.” The Goal provides that, in rural areas, the County will “guide[] new development toward existing [RCs],” and the Objective provides that “[a]ll new development within rural areas . . . will be directed to existing [RCs].” The language of both the Goal and Objective is clear and unambiguous. Establishment of new RCs in the rural areas of the County will not guide new development to existing RCs, and will be contrary to both the Goal and the Objective. However, the Plan Amendment neither establishes new RCs nor creates a policy supporting the establishment of new RCs. It merely deletes a policy expressing the County’s intent not to support new RCs. Absent an express policy in the County’s existing Plan, the Plan Amendment is not internally inconsistent with FLU Goal 3 and Objective 3.1.4/ The preponderance of the evidence does not support a finding that the Plan Amendment creates internal inconsistencies in the existing Plan. Data and Analysis The County agenda items for transmittal and adoption hearings on the Plan Amendment were devoid of any supporting data or analysis. The County’s transmittal package to the Department and other reviewing agencies contained only the ordinance adopting the Plan Amendment accompanied by a cover letter. The Plan Amendment reflects a policy change by the County to consider allowing establishment of new RCs. The Plan Amendment does not change the land use of any particular parcel of land in the County, and does not change the uses allowed, or the density or intensity of development allowed thereon. The Plan Amendment does not, in and of itself, require the expenditure of public funds, nor does it immediately impact the provision of public services in the rural areas of the County. Whether the County will establish any new RCs in the rural areas of the County depends on whether a property owner proposes one in the future, and whether the County approves said proposal, after consideration of all applicable Plan policies. The agenda items for both the transmittal and adoption hearings on the Plan Amendment contain the following as background for the Plan Amendment: The Escambia County Board of County Commissioners finds that an amendment to its Comprehensive Plan is necessary and appropriate based on the changing needs within the County; and it is in the best interest of the health, safety, and welfare of the County to amend its Comprehensive Plan. (emphasis added). At the final hearing, the County offered no data to establish the “changing needs within the County” referenced in the background statement. In effect, the County offered no data or analysis at final hearing to support the Plan Amendment. Mr. Jones testified that “there were some discussions [among Commissioners] on why they were adopting this and why they felt it was necessary.” He stated, “the record reflects that they stated that basically it was to give someone an opportunity for them to make a request to make an application [for RC].” Mr. Jones’s hearsay testimony was not corroborated by any non-hearsay evidence. In a series of leading questions, Mr. Jones affirmed that the County Commissioners “found that FLU 3.1.5 restricted the ability of landowners to even request a change to the rural community future land use category,” and “found that the [Policy] restricted the ability of landowners to construct residences due to the density limitations of only one dwelling unit per 20 acres.” Mr. Jones’s testimony was neither credible nor persuasive. Mr. Jones’s explanation of the reason for the Plan Amendment was undermined by his subsequent testimony that the Commission had the authority to approve a plan amendment, changing the designation of property from AG to RC, even without repealing Policy FLU 3.1.5. If that is true, there is absolutely no basis for the Plan Amendment.5/ In a series of leading questions from his counsel, Mr. Jones agreed that “this text amendment was necessary to allow . . . existing residential areas [within AG] to change to RC in order to come into the appropriate future land use category” and “determined that there were areas within the agricultural future land use designation which would benefit from the ability to change to a rural community future land use category.” However, Respondent offered no evidence of the location of any such residential areas outside of existing RC communities, or an explanation of why the assigned AG designation was inappropriate. Nor did Mr. Jones expound on the benefit the Plan Amendment would allegedly bestow on property in the agricultural areas. This testimony was conclusory and lacked foundation. Mr. Jones’s testimony was further undermined by his refusal to speak for the Commission when questioned by the Petitioners regarding the Commission’s reasons for the Plan Amendment, contrasted with his eager agreement with leading statements from his counsel offering reasons for the Plan Amendment. On redirect, when Mr. Jones responded to Petitioner Rogers’s question regarding the County’s reasons for adopting the Plan Amendment, he referred generally to “economic reasons” and vaguely referred to “other public reasons as she previously stated,” deferring to his counsel’s leading questions. (emphasis added). Mr. Jones’s testimony that the Commission’s justification for the Plan Amendment is to allow property owners to apply for a change is unreliable hearsay evidence, later contradicted by his own testimony that the Commission could have approved a land use amendment to that effect prior to adoption of the instant Plan Amendment. Mr. Jones’s testimony is rejected as unreliable and unpersuasive. The preponderance of the evidence supports a finding that the Plan Amendment is not supported by any relevant data or an analysis thereof. Urban Sprawl Petitioners’ final contention is that the Plan Amendment fails to discourage urban sprawl as required by section 163.3177(6)(a)9. That section lists 13 “primary indicators” that a plan amendment does not discourage the proliferation of urban sprawl. Of those, Petitioners allege the Plan Amendment meets the following primary indicators: Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are suitable for development. Promotes, allows, or designated urban development in radial, strip, isolated, or ribbon patterns generally emanating from existing urban developments. * * * Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. Fails to maximize use of existing public facilities and services. * * * Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. * * * Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. In support of this allegation, Petitioners presented the testimony of Christian Wagley, who was accepted as an expert in sustainable development and environmental planning. Mr. Wagley testified that the Plan Amendment will allow a forty-fold increase in density of development allowed in the largely rural, agricultural northern county area (i.e., the increase in density between that allowed in the Agricultural category: 1du/20 acres--and that allowed in RC: 2du/acre), and significantly diminish available Agricultural lands and increase demand for urban services outside the urban area. Mr. Wagley’s testimony is based on the assumption that the County will actually approve, in the future, new RCs in the largely agricultural northern portion of the County. That assumption is insufficient to form the basis of a finding of fact in the instant case. The Plan Amendment does not convert any Agricultural lands to the RC category. It does not “promote, allow, or designate” urban development in the rural areas of the County; “promote, allow, or designate” development in a radial, strip, or isolated pattern; fail to maximize use of existing public facilities and services, or allow for land use patterns which disproportionately increase the cost of providing and maintaining public facilities and services; fail to provide a clear separation between rural and urban uses; or discourage or inhibit infill development or redevelopment. Petitioners introduced a map depicting the United States Department of Agriculture prime soils overlayed on the Agriculturally-designated lands in the County. While this map demonstrates that prime farmland is plentiful in the northern agricultural area of the County, it does not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. The preponderance of the evidence does not support a finding that the Plan Amendment fails to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is not “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of January, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2020.
The Issue Introduction. 21 The Parties. 21 General Description of Monroe County 22 The Monroe County Year 2010 Comprehensive Plan 24 The Original Comprehensive Plan. 24 The Remedial Comprehensive Plan. 25 Area of Critical State Concern Review 27 The Florida Keys Area of Critical State Concern. 27 Area of Critical State Concern Review of the Remedial Plan. 28 The DCA Proposed Rules 31 Challenges to the DCA Proposed Rules 33 The Administration Commission Proposed Rules . 34 Challenges to the Administration Commission Proposed Rules 36 The Final Order in the DCA and Administration Commission Proposed Rules Challenge Cases. 36 The Department's Review Pursuant to the Act. 38 Section 163.3184, Florida Statutes 38 The Department's Review. 39 Impact of the Area of Critical State Concern Review on the Department's Review Under the Act. 40 Challenge to the Remedial Plan Pursuant to the Act by the Intervenors 41 Carrying Capacity: The Cornerstone of Monroe County Remedial Plan. 42 Carrying Capacity as a Planning Tool 42 Monroe County's Carrying Capacity Analysis 44 The Settlement Agreement's Reference to a Carrying Capacity Analysis 45 Monroe County's Application of the Carrying Capacity Analysis. 46 Hurricane Evacuation Carrying Capacity 47 Environmental Carrying Capacity. 48 The Department's Review of Monroe County's General Acceptance of a Carrying Capacity Approach 49 Monroe County's Environment. 49 The Unique Environmental Character of the Florida Keys 49 General Habitat Types in the Florida Keys. 51 Upland Habitat Types 53 Wetland and Transitional Wetland Habitat Types. 55 Marine Habitat Types 59 The National Marine Sanctuary. 63 The Upper, Middle and Lower Keys 64 Areas of Critical County Concern 66 Ohio Key 67 Coupon Bight 67 Species of Special Concern 68 The Florida Key Deer 68 Marine Turtles 72 The Impacts of Development on the Environment of the Florida Keys. 72 A Brief History of Development in the Florida Keys 72 The Impact of Development on Water Quality and Marine Resources 73 The Impact of Development on Coral Reefs 79 The Impact of Development on Seagrasses. 80 The Impacts of Boating 80 The Impacts of Docks and Marinas 82 The Impacts of Development on Wetlands and Transitional Wetlands. 83 The Impact of Development on Mangroves 85 The Impact of Development on Beach Berm. 85 The Impact of Development on Hammocks. 86 The Impact of Development on Offshore Islands. 87 The Impact of Development on North Key Largo . 88 The Impact of Development on Ohio Key. 88 The Impact of Development on Key Deer and Big Pine Key 89 The Impact of Development on Coupon Bight. 92 The Impact of Development on Marine Turtles. 92 The Florida Keys' Environmental Carrying Capacity 92 Monroe County's Conclusion 92 The Carrying Capacity of the Nearshore Waters and Seagrasses. 94 The Carrying Capacity of the Coral Reefs of the Florida Keys. 98 The Carrying Capacity of Offshore Islands. 98 The Carrying Capacity of North Key Largo, Ohio Key and Coupon Bight. 99 The Carrying Capacity of the Key Deer and Big Pine Key 101 The Need to Maximize Measures to Protect Other Environmental Features of the Florida Keys Environment 103 Sewage Treatment Systems 104 Provisions of the Remedial Plan. 104 The Department's Review Under the Act. 107 Intervenor Challenges. 108 Maintenance vs. Improvement. 109 Delay of the Adoption of the Master Plan 110 The Interim Levels of Service. 112 Cesspool Inspection Program. 117 Disturbed and Undisturbed Wetlands 117 Stormwater Treatment. 118 Provisions of the Remedial Plan. 118 The Department's Review Under the Act. 119 Intervenor Challenges. 119 Delay of the Adoption of the Master Plan 120 Impact on Water Quality. 121 The Interim Levels of Service. 121 Marine Resources 121 Provisions of the Remedial Plan. 121 The Department's Review Under the Plan 124 Intervenor Challenges. 125 Adequacy of Living Marine Resource Protections. 127 Moored/Anchored Vessels, Marinas and Docks. 128 Provisions of the Remedial Plan Impacting Moored/Anchored Vessels. 128 Provisions of the Remedial Plan Impacting Marines. 128 Provisions of the Remedial Plan Impacting Docks. 129 The Department's Review Under the Act. 131 Intervenor Challenges. 133 F Residential Docks. 135 G. Perpendicular Docks. 136 Canals 137 Provisions of the Remedial Plan. 137 The Department's Review Under the Act. 138 Intervenor Challenges. 138 Wetlands. 139 Provisions of the Remedial Plan. 139 The Department's Review Under the Act. 140 Intervenor Challenges. 140 Disturbed Wetlands 141 Setbacks 141 Provisions in the Remedial Plan. 141 The Department's Review Under the Plan 142 Intervenor Challenges. 143 The Justification for Setbacks 143 "No Net Loss" of Wetlands 145 Provisions of the Remedial Plan. 145 The Department's Review Under the Act. 145 Intervenor Challenges. 146 On-Site Mitigation vs. Off-Site Mitigation 147 ACCC: Big Pine Key, North Key Largo and Ohio Key. 148 Provisions of the Remedial Plan. 148 The Department's Review Under the Act. 151 Intervenor Challenges. 152 Big Pine Key; Protection of the Key Deer 154 North Key Largo. 155 Miscellaneous Environmental Provisions. 156 Freshwater Lenses. 156 Open Space Requirements for Hammocks 157 Public Access to Beaches 158 Public Expenditures in the Coastal Zone. 159 Natural Heritage and Park Program. 160 Protection of Upland Vegetation. 161 Clustering 161 Hurricane Evacuation Carrying Capacity. 162 Hurricanes 162 Preparation for Hurricanes 165 The Potential Impacts of Hurricanes on the Florida Keys 167 Evacuation and Refuges of Last Resort 169 Monroe County's Hurricane Evacuation Provisions 172 The Department's Review of Monroe County's Hurricane Evacuation Response in Objective 101.2. . . . . . . . . . . . . . . . . . . . .175 Intervenor Challenges. 177 Alleged Worthlessness of Undeveloped Property and Impact on Taxes. 179 Hurricane Evacuation Clearance Time Calculations 180 The Reasonableness of the Estimated Clearance Time Calculations. 187 Sham Device and Reasonableness of Monroe County's Hurricane Evacuation Goals. 189 Hurricane Shelters 191 The Board of County Commissioner's Meeting of May 4, 1991 198 The Administration Commission's Policy 216.1.19 . . . . . . . . . . . . . . . . . . .198 The Permit Allocation System 200 Monroe County's Decision to Employ a Permit Allocation System. 200 Provisions of the Remedial Plan Adopting the Permit Allocation System 203 Monroe County's Method of Allocating Allowable Growth Under the Permit Allocation System. 205 The Department's Review of the Permit Allocation System Under the Act. 210 The Department's Review of the Point System Under the Act. 210 Intervenor Challenges to the Permit Allocation System. 216 General Challenges to the Point System 216 Intervenor Challenges to Policies 101.5.4 and 101.5.5. 217 The Number of Permits and Subareas 218 The General Challenges to the Permit Allocation System 219 General Challenges to Policies 101.5.4 and 101.5.4. 222 Negative Points for Habitat, Habitat of Critical Concern and Species 222 Protected Species Habitat Map. 228 Coastal High Hazard Areas. 228 Platted Subdivisions 229 Affordable Housing 229 Transportation Levels of Service 229 Commercial Infill, and the Existence of Infrastructure 230 Points for TDRs. 230 Offshore Islands, Conservation Lands and Historic/Archaelogical Resources 232 Transferable Development Rights Program 233 The Current Transferable Development Rights Program. 233 Provisions of the Remedial Plan. 233 The Department's Review Under the Act. 236 D Intervenor Challenges. 238 E. Sender vs. Receiver Sites. 239 Land Use Categories. 242 Provisions of the Remedial Plan. 242 The Department's Review Under the Act. 243 Intervenor Challenges. 247 D. Policies 101.4.1 and 101.4.2 248 Maintenance of Community Character and Protection of Environmental Resources. 248 Residential Medium Land Use Category 249 Mixed Use/Commercial and Mixed Use/Commercial Fishing. 249 Disturbed Wetlands 251 Height Limitation. 251 The Future Land Use Map Series. 252 The Future Land Use Map Series Adopted by Monroe County 252 The Department's Review Under the Act. 252 Intervenor Challenges. 253 Are the Future Land Use Maps in Compliance With the Act 254 Vested Rights. 255 Provisions of the Remedial Plan. 255 The Department's Review Under the Act. 256 Intervenor Challenges. 258 Definition of Vested Rights. 258 Limited Application of Land Development Regulations to Property with Vested Rights 259 Miscellaneous Provisions of the Remedial Plan 260 Non-Residential Development. 260 The Monroe County Land Authority 263 Transient Residential Unit Moratorium. 264 Nonconforming Uses 266 The Coastal High Hazard Area 268 The Post-Disaster Redevelopment Plan 269 Siting Public Facilities 270 Intergovernmental Coordination 272 The County Geographic Information System 275 Public Expenditures for Services and Infrastructure 275 Affordable Housing 276 L. Goal 101 276 Roadway Improvements 277 Solid Waste Level of Service 278 Proposed Widening of U.S. Highway 1 on Big Pine Key 279 Public Participation 280 Capital Improvements 280 Monroe County's Commitment to Funding the Remedial Plan. 282 Monroe County's Determination of the Economic Impact Consequences of the Remedial Plan and Its Response Thereto 282 The Department's Review of Monroe County's Commitment to Funding the Remedial Plan. 284 Intervenor Challenges. 286 Monroe County's Lack of Commitment to Funding the Remedial Plan. 286 The Justification for Funding Assistance 287 Policy 1, as Modified by the Department and Policy 4 as Adopted by the Administration Commission are in Compliance with the Act. 288 Compliance with the State and Regional Plans. 291 The State Comprehensive Plan 291 The South Florida Regional Planning Council Policy Plan. 292 Constitutional Taking. 293
Conclusions For Petitioner, the Department of Community Affairs: Stephanie M. Gehres Assistant General Counsel David J. Russ Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 33050 For Respondent, Monroe County: Robert C. Apgar, Esquire David A. Theriaque, Esquire Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue Tallahassee, Florida 32301 For Intervenor, 1000 Friends of Florida, Inc.: Richard Grosso, Legal Director 1000 Friends of Florida Civil Law Clinic Shepard Broad Law Center NOVA Southeastern University 3305 College Aveneue Ft. Lauderdale, Florida 33314 For Intervenors, Henry Lee Morgenstern and Florida Wildlife Federation: David J. White, Esquire National Wildlife Federation 1401 Peachtree Street, Northeast Suite 240 Atlanta, Georgia 30309 For Intervenor, Friends of the Everglades, Inc.: Nancy Carroll Brown, President Friends of the Everglades, Inc. 9220 Southwest 166th Street Miami, Florida 33157 For Intervenor, Upper Keys Citizens Association: Dagny Johnson, President Upper Keys Citizens Association, Inc. 95,600 Overseas Highway Key Largo, Florida 33037 For Intervenors, George N. Kundtz and Florida Keys Citizens Coalition: Gregg Goldfarb, Esquire 19 West Flagler Street, Suite 707 Miami, Florida 33130 For Intervenor, The Wilderness Society: Debra S. Harrison Florida Keys Coordinator The Wilderness Society 8065 Overseas Highway Marathon, Florida 33050 For Intervenors, George DeCarion, et al.: James S. Mattson, Esquire Andrew M. Tobin, Esquire MATTSON & TOBIN Post Office Box 586 Key Largo, Florida 33037 STATEMENT OF THE ISSUES The issue in these cases is whether the remedial Monroe County Year 2010 Comprehensive Plan is "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding that the Monroe County Year 2010 Comprehensive Plan is not in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes, consistent with this Recommended Order. DONE and ORDERED this 17th day of July, 1995, in Tallahassee, Florida. LARRY J. SARTIN 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 July, 1995. APPENDIX A Case Numbers 91-1932GM and 93-3371GM The parties have submitted proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed findings of fact of the parties, except 1000 Friends of Florida, George N. Kundtz and the Florida Keys Citizens' Coalition and the Upper Keys' Citizens' Association, have been accepted or rejected in this Appendix A. The Department's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 9-10, 24, 26, 31-34, 43, 60, 67, 73, 75, 78, 87-88, 91, 97-100, 102-103, 107, 160, 192, 224, 231, 237, 248, 256, 282, 288, 294, 300-303, 313, 316, 331, 338, 340, 355, 376 Proposed findings of fact which are rejected in whole or in part: 2 Not a finding of fact. 108 The last sentence is not supported by the weight of the evidence. Monroe County's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 3, Footnote 4, 42, 55, 93-94, 115, 125-127, 130, 173, 178, and 181. Proposed findings of fact which are rejected in whole or in part: 10 The third sentence is not supported by the weight of the evidence. 13 The second sentence to the next to last sentence is not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence and the rest of the proposed finding is not relevant. Not supported by the weight of the evidence. 40 The first sentence is not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. "DCA" did not amend Policy 1. Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 48 Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 58 The last three sentences are not supported by the weight of the evidence. 133 The last sentence is not supported by the weight of the evidence. 138 The first two sentences are not supported by the weight of the evidence. 146 The last three sentences are not relevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally true, the proposed finding ignores the fact that the evidence failed to prove that the lack of action by the Service is because the key deer have not reached their carrying capacity, which is the issue in these proceedings. The first two sentences are not supported by the weight of the evidence. The last sentence is not relevant. 157-159 Although generally correct summaries of some testimony, these proposed findings are not relevant. 160-163 These proposed findings are generally accepted. They do not, however, justify failing to recognize that the carrying capacity of the key deer has been exceeded. Not relevant. Not supported by the weight of the evidence. 170 The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. 189 The last sentence is not supported by the weight of the evidence. 191 The last sentence is not supported by the weight of the evidence. 193 The last sentence is not supported by the weight of the evidence. 195 The first sentence is not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 202 The first and last sentences are not supported by the weight of the evidence. 203 Not supported by the weight of the evidence. 204 Not supported by the weight of the evidence. 205 Not relevant. 205 Not relevant. DeCarion's Proposed Findings of Fact Findings of fact after number 53 have not been numbered in DeCarion's proposed order. They are referred to in this Appendix by the titles of the portion of the proposed order under which they appear. Proposed findings of fact which are hereby accepted in whole or in part: 1, 25-29, 32, 35-38 Proposed findings of fact which are rejected in whole or in part: 1 No evidence to support this proposed finding was presented. Standing was, however, stipulated to. 7-16 Although generally correct, the conclusions reached in these proposed findings are not supported by the weight of the evidence. 19 Not supported by the weight of the evidence. 24 The first sentence is not relevant. 43-44 While these proposed findings are an accurate reflection of some of the testimony in these proceedings, the conclusions suggested by DeCarion are not supported by the weight of the evidence. 46-48 Not supported by the weight of the evidence. 49-50 Not relevant. Not supported by the weight of the evidence. The first three sentences are not supported by the weight of the evidence. The third sentence is not supported by the weight of the evidence. "Five-Year Moratorium on Hotel-Motel Construction": The second paragraph is not supported by the weight of the evidence. "Marina Expansion Restrictions": The second paragraph is not supported by the weight of the evidence. Wilderness Society's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 7, 10, 12, 29, 34, 71-72, 81, 87, 138, 141 Proposed findings of fact which are rejected in whole or in part: 3-6 Not relevant. 73-75 Not relevant. 88-89 Not supported by the weight of the evidence. 102-103 Not relevant. Not relevant. The first paragraph is not supported by the weight of the evidence. 117-130 Not relevant. 147-248 Not relevant. 154 Not supported by the weight of the evidence. 159-161 Not relevant. APPENDIX B ORIGINAL AND REMEDIAL PLAN CHALLENGE CASES: CASE NUMBERS 91-1932GM AND 93-3371GM TABLE OF CONTENTS APPEARANCES. 3
