The Issue The question presented in this case is whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Mr. Hilton Kelly is a resident of Washington County, Florida, and the brother of Ms. Miller McCombs (McCombs). McCombs, a licensed real estate agent in Santa Rosa County since 1974 and broker since 1975, has used the records of the property appraiser for many years in her profession. In 2004, McCombs was an active participant and supporter of Leon Cooper, the opposition candidate to incumbent Property Appraiser of Santa Rosa County, Greg Brown. Brown had been the Property Appraiser since January 2, 2001, and in 2004 was running for re-election for the first time. Leon Cooper, whom McCombs supported, was formerly an employee of the Santa Rosa County Property Appraiser's Office, having been employed by Robert Burgess, the Property Appraiser until December 31, 2000. He was hired by former Property Appraiser Robert Burgess, and continued to work in that office for approximately eighteen months after Greg Brown assumed office. Prior to the events giving rise to this action, Leon Cooper left the employ of the Santa Rosa County Property Appraisers office to work for the Florida Department of Revenue. On April 12, 2004, Kelly filed an ethics complaint which alleged Brown assessed the property of Donald Moore located in Santa Rosa County at a reduced rate in exchange for a campaign contribution. Kelly also alleged that Moore was a friend of Brown's, and Brown instructed appraisers to stay away from Moore's property. Kelly filed the ethics complaint at the request of his sister, who feared some sort of retaliation should she file the complaint herself. McCombs was motivated by what she perceived to be poor service by the property appraiser's office. Kelly agreed to file the complaint because his sister asked him to and he trusted her. She showed him documentation that made sense to Kelly and he agreed that it should be brought to someone's attention. Attached to the complaint were records from the Santa Rosa Property Appraiser's office that showed the amount of the assessments for the Moore property for the years 2000-2003; pictures of the structures on the Moore property; records from the Santa Rosa County Tax Collector's Office; and records related to campaign contributions given in support of Greg Brown indicating Moore or companies with which he was associated contributed at least $1,500.00 to Greg Brown's election campaign. On the same day, Robert Burgess, the former property appraiser, filed a separate ethics complaint against Brown alleging that Brown had reinstated the tax exemption of a church owned by Ms. Lovie Grimes and deleted the tax assessments against the church for the tax years 2000 through 2003 in support for the political support of Ms. Grimes in his 2004 re- election bid. Mr. Kelly did not know Mr. Burgess and did not talk with him before filing the ethics complaint related to the Moore property. He signed the complaint and had it notarized after receiving the materials from his sister.1/ The Commission investigated the allegations made by Kelly and Burgess and ultimately determined that both complaints lacked merit. Kelly was interviewed telephonically by investigators for the Florida Commission on Ethics. When contacted he stated, "I don't have a dog in this hunt." He referred the investigator to Robert Burgess, stating that his sister had informed him that Mr. Burgess "knows all of the details about this complaint." The investigation by the Ethics Commission staff regarding the evaluation of the Moore property revealed that it had burned completely on December 31, 2000, just as it was nearing completion. The reconstruction efforts were monitored by personnel of the appraiser's office, and it was duly added to the rolls on January 1 of the year following its completion, January 1, 2003. The record also shows that the home that burned down was constructed without being properly permitted, and that while the house burned down, there remained other, undamaged buildings on the property. One appraiser, as opposed to all of the appraisers in the office, was instructed not to inspect Mr. Moore's property due to an apparent "personality conflict" between Mr. Moore and this particular appraiser. Several of the field appraisers were aware of this directive, and other field appraisers continued to inspect the property. It was a common practice to honor such requests made by homeowners and was not limited to Mr. Moore's property. Kelly made no independent effort to verify any of the facts in his ethics Complaint. Kelly made no independent effort to verify any of the documents provided by his sister. The documents attached to the ethics complaint were copies of records contained in the Property Appraiser's office, and there was no reason to doubt their authenticity. However, these records did not provide all of the relevant information with regard to the appraisal of the Moore property. While it is clear that Kelly made no effort to verify anything in the complaint he filed, it is unclear whether he would have been able to obtain any documentation related to the fire from the Property Appraiser's office. Indeed, Greg Moore testified that if a citizen went in to get the records on Moore's property, they would get what was attached to Kelly's complaint. Further, no evidence was presented to indicate that Kelly entertained any doubt as to the as to the truth of the allegations contained in the complaint.
Conclusions For Petitioner: Albert T. Gimbel, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 For Respondent: Joseph Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Commission enter a final order denying Petitioner's Petition for Fees and Costs. DONE AND ENTERED this 14th day of July, 2006, in Tallahassee, Leon County, Florida. S Lisa Shearer Nelson 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 14th day of July, 2006.
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011.
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . 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. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
Findings Of Fact Parties Petitioner Henry A. Wenz (Wenz) is a resident of Volusia County and submitted oral or written objections during the review and adoption proceedings. Petitioners Hart Land & Cattle Co., Inc., R. L. Hart, and Clyde E. Hart are residents of, own property in, or own or operate businesses in Volusia County and submitted oral or written objections during the review and adoption proceedings. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent Volusia County, which is a charter county, is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. Volusia County is a charter county. Volusia County is located on the Atlantic Coast and is bounded by Flagler and Putnam Counties to the north, Brevard and Seminole Counties to the south, and Lake County to the west. The east boundary runs about 47 miles along the coastline, and the west boundary includes about 75 miles along the St. Johns River before running along lakes to the north and south. Volusia County contains 14 incorporated areas. Only four of these incorporated areas are in west Volusia County: DeLand, which is the County seat; Lake Helen; Orange City; and Pierson. The coastal area contains the remaining 10 incorporated areas, including the county's principal city, Daytona Beach. Public Participation By Resolution No. 86-105 adopted August 7, 1986, Volusia County established various requirements for notice and public hearings in the comprehensive planning process. Acknowledging that the Volusia County Planning and Land Development Regulation Commission serves as the local planning agency (LPA), pursuant to Volusia County Ordinance 80-8, as amended, Resolution No. 86- 105 directs the Volusia County Planning and Zoning Department to accept, consider, preserve, and respond to written public comments. Following the adoption of Resolution No. 86-105, the LPA commenced a process designed to ensure that citizens with a wide range of interests could make substantial contributions to the comprehensive planning process. The LPA formed five citizens' committees, known as Citizen Resource Committees, to consider planning questions corresponding to each of the elements required to be included in the comprehensive plan. Each committee comprised about 20 members, and the chair of each committee was a member of the LPA. 1/ Membership of each Citizen Resource Committee was diverse. For instance, members of the land use committee included homeowners, developers, and environmentalists. The diversity of membership was the result of the LPA's efforts to solicit nominations for membership from a broad range of civic, trade, or professional associations. In all, the LPA asked 150 organizations to make nominations and 62 organizations did so. In the case of the land use committee, for example, members were nominated by, among others, such groups as the League of Women Voters, Association of Condominiums, West Volusia Home Builders Association, and Volusia-Flagler Environmental Political Action Committee, Inc. Each Citizen Resource Committee met about nine times from July, 1988, to May, 1989. Prior to these series of meetings, the LPA conducted a meeting to explain the comprehensive planning process. Each meeting of the LPA or Citizen Resource Committee was open to the public and announced by news releases published in numerous local news media. During the nine months that the Citizen Resource Committees met, Volusia County amended Resolution No. 86-105 to require that all planning materials given to the Citizen Resource Committees, LPA, or County Council be available for review by the public. Adopted February 2, 1989, Resolution No. 89-27 made planning documents available for copying by the public at cost. Following the completion of the work of the Citizen Resource Committees, the LPA then conducted six public workshops between June 14 and June 27, 1989. Large display advertisements were published in local newspapers of general circulation preceding at least some of these meetings, including the June 14 and 19 meetings where it was announced that the LPA would consider certain named elements for recommendation to the County Council. The LPA ultimately recommended the draft elements to the County Council. On July 7, 1989, the County Council held its first public workshop on the proposed plan. Over the next two months, the County Council conducted nine such workshops, at least some of which were announced by large display advertisements in local newspapers of general circulation. Minutes and notes of these workshops indicate that Council members regularly solicited comments from members of the public in attendance. The County Council conducted nine public workshops or hearings from July 7, 1989, through August 29, 1989. The County Council workshops culminated in the transmittal hearing, which took place on September 7, 1989. The hearing was announced by large newspaper display advertisements that satisfied all requirements of law. After transmittal of the proposed plan and receipt of the Objections, Recommendations, and Comments of DCA, the County Council announced by large display newspaper advertisements that a hearing would be conducted on February 22, 1990, to receive public comments and adopt the comprehensive plan. The notice satisfied all requirements of law. The County Council received extensive public comments at the February 22 hearing and continued the hearing to March 8. Again receiving extensive public comment at the March 8 hearing, the County Council continued the hearing to March 15. The County Council adopted the comprehensive plan at the March 15 hearing, although Ordinance No. 90-10, which adopts the plan, indicates that the plan was adopted at a public hearing on March 10, 1990. 2/ Ordinance No. 90-10 adopts the goals, objectives, and policies, but not the supporting data and analysis. Traffic Circulation Element Data and Analysis In preparing the Traffic Circulation Element (TCE), the County first inventoried the existing road system to determine capacity, demand, and overall system performance. To assist in this effort, the County Council retained (Kimley-Horn and Associates, Inc., which issued a report in September, 1989, analyzing the availability of transportation facilities and services to serve existing and future demands (Kimley-Horn Report). The Kimley-Horn Report serves as part of the data and analysis on which the plan was based. Beginning with 1987 conditions, Kimley-Horn noted that the County required nearly $68.2 million of road improvements to attain level of service C on all roads. 3/ To evaluate future needs, Kimley-Horn used a standard traffic forecasting formula and socio-economic data provided by the County Planning Department. After identifying numerous traffic analysis zones and validating the model for the subject forecasting purposes, Kimley-Horn ran ten model runs. In designing various network alternatives, Kimley-Horn considered level of service standards in light of factors such as the requirement of concurrency, the goal of urban in-fill, and the "[d]irect correlation between urban size and acceptance of some highway congestion as a trade off for other urban amenities and cost considerations." Kimley-Horn Report, page 17. The West Volusia Beltline would be located in southwest Volusia County between U.S. 17/92 and 1-4. Comprising several segments, the beltway's southernmost segment is from Graves Avenue to Saxon Boulevard. Apparently while Kimley-Horn was preparing its report, Volusia County adopted a Five-Year Road Program, which includes certain projects from a 2010 financially feasible plan for the coastal area. The Five-Year Road Program, which will cost $94.7 million for right-of-way acquisition and construction, will require $52 million from the County, or $59.3 million after taking into consideration the effect of inflation. From north to south, the Five-Year Road Program includes the following segments of the West Volusia Beltway, which are all under County jurisdiction: Kepler Road to Taylor Road (1.0 mile)--construction of two lanes; Taylor Road to State Route 472 (2.3 miles)--construction of two lanes; and State Route 472 to Graves Avenue (1.0 mile)--addition of two lanes to the two existing lanes. The Kimley-Horn Report estimates that, during the five-year road program, the County will have revenues of only $49.2 million available for road construction without regard to inflation but assuming increases in population and tourism. The report discusses various options, such as raising impact fees, raising the share of gas taxes devoted to construction versus maintenance, and accelerating road projections to negate the effect of inflation. The County- estimated revenues are 6-17% short of estimated costs. In any event, the projected revenue shortfall during the Five-Year Road Program should have no effect on the three West Volusia Beltway projects. The Kimley-Horn Report ranks all of the five-year projects based on relative importance. All three beltway projects are in the top ten, and the cumulative construction costs expended through the first ten projects is $28.8 million, which is well within available revenues of $49.2 million. Assuming that the Five-Year Road Program is timely completed, Kimley- Horn calculated 1995 levels of service by applying County-supplied socioeconomic data to existing traffic models. The result, displayed on Figure 11 in the Kimley-Horn Report, discloses an insignificant segment of U.S. 17/92 in the downtown area at level of service F and, especially relative to east Volusia County, little system mileage at level of service E. Based on the analysis described in the preceding paragraphs, the Kimley-Horn Report concludes that county-wide roadway operating conditions in 1995 are excellent in that, out of 895.3 system miles, only 21.4 miles are predicted to operate at Level of Service F. This represents 2.39 percent of the county's system miles. In the same light, 52.86 miles fall at Level of Service E condition representing 5.9 percent of the total system miles. Overall, approximately 92 percent of the county-wide roadway system-miles is predicted to operate at Level of Service D or better in 1995. Kimley-Horn Report, pages 58-60. Table 28 of the report, which divides the County into 11 geographic areas, prioritizes road segments for construction after 1996 based on volume-to- capacity ratios projected for 1995 after completion of the base network. 4/ Table 28 projects no excessive use of segments in west Volusia County. The average volume-to-capacity ratios in west Volusia County are projected as follows: for the area north of DeLand--0.40; for the area south of DeLand--0.60; and for the area west of Deltona--0.75. Although the last area contains three segments with ratios over 0.90, the West Volusia Beltline would, in 1995, have a volume-to-capacity ratio of only 0.44. Designing a 2010 network, Kimley-Horn analyzed additional highway segments selected from a financially feasible plan and various alternatives previously considered in the report. These segments, which are listed in Table 19 of the report, exclude all of the roads contained in the Five-Year Road Program. The total cost, including right-of-way acquisition, construction, and inflation, is $1.38 billion, with the County's share at $510 million. From north to south, the 2010 network contains the following segments of the West Volusia Beltway, which are all projected to remain under County jurisdiction: State Route 44 to State Route 472 (5.6 miles)--addition of four lanes to two lanes in the existing or base network; State Route 472 to Graves Avenue (1.0 mile) --addition of two lanes to four lanes in the existing or base network; and Graves Avenue to Saxon Boulevard (3.0 miles)--construction of four lanes where none exists in the 1995 network. However, the 1995 level of service projections properly ignore those segments of the West Volusia Beltway included in the 2010 network, including the new four lanes south of Graves Avenue, because these segments are not part of the existing or base network. The Kimley-Horn Report estimates that gas taxes and impact fees available to the County to fund the County's system improvements from 1996 through 2010 will total only about $278 million. Assuming that future state contributions will equal past contributions, the Kimley-Horn Report estimates that state revenues for system improvements will total about $272 million from 1996 through 2010. The total County and state contributions are projected to be about $550 million for 1996 through 2010, which would leave a projected combined state/County deficiency of $338 million. The Kimley-Horn Report recommends that the County update the TCE once the projected revenue shortfall materializes following the construction of the base network in 1995. Specific items to be considered include the adjustment of level of service standards, identification of new revenue sources, and adjustment of permitted densities and intensities in the affected areas. The Kimley-Horn Report concludes that the plan updating process should be viewed as an on- going, iterative process whereby road needs, available revenues and finally financial analysis merge... This process is designed to provide a dynamic and on-going planning tool that can be used to provide an on-going monitoring and updating program for the transportation system in Volusia County. Kimley-Horn Report, page 83. Goals, Objectives, and Policies 1. Bicycles and Pedestrians TCE Objective 2.1.1 states that, prior to 1996, the County "shall implement programs to provide a safe, convenient, and efficient motorized transportation system." TCR Objective 2.1.2 states that, prior to 1995, the County "shall implement programs to provide a safe, convenient, and efficient non-motorized transportation system." TCE Policies 2.1.1.4 and 2.1.2.2 state that, prior to October 1, 1990, the County "shall develop regulations for the safe and efficient movement of pedestrians within all new development proposals" [sic]. TCE Policy 2.1.2.1 states that, prior to 1993, the County "shall coordinate with the MPO to develop a County-wide bicycle facilities plan." The Capital Improvement Program schedules all significant capital projects to be undertaken for the six years between 1990-1995. An adopted part of the plan, the Capital Improvement Program contains a summary of road projects beginning at page C-243. The table shows, by year and amount, expenditures for all capital road projects, including the above-described segments of the West Volusia Beltway without significant alterations. Also included are $1.17 million for constructing bike paths in fiscal year ending 1990 and $180,000 for constructing bike paths in the following year. Beginning in fiscal year ending 1991 and through the end of the covered period, the table shows that the County intends to spend about $370,000 annually constructing bike paths/sidewalks and, in the first two years, $860,000 in widening bike paths. 2. Level of Service Standards for Roads The objectives and policies under TCE Goal 2.2 set the level of service standards applicable to roads in the County. TCE Objective 2.2.1 states: Upon adoption of the Comprehensive Plan, Volusia County shall establish peak hour level of service standards and prior to 1996, Volusia County shall achieve and maintain standards for peak hour levels of service on the thoroughfare system. TCE Policies 2.2.1.3 through 2.2.1.6 establish the peak hour level of service standards for state-and County-maintained roads. The level of service standards for state-maintained freeways and principal arterials, in the urbanized and nonurbanized areas, are D and C, respectively. The level of service standards for state-maintained minor arterials and collectors, in the urbanized and nonurbanized areas, are E and D, respectively. TCE Policy 2.2.1.6 sets the level of service standards for County-maintained arterials and collectors, in the urbanized and nonurbanized areas, at E and C, respectively. With respect to the reduced level of service standard allowed on County roads in urbanized areas, TCE Policy 2.1.1.7 explains that the County "shall expend County transportation funds in a manner which encourages compact urban development." TCE Policies 2.2.1.3 through 2.2.1.6 permit certain exceptions to the general level of service standards. A major exception is that the level of service standards apply only to road segments that are neither backlogged nor constrained. By means of this exception, the County distinguishes between roads operating at or above 5/ their adopted level of service standards and capable of widening, which are subject to the general level of service standards, and roads that are, at the time of plan adoption, operating below their adopted level of service standards or are incapable of widening, which are backlogged or constrained, respectively. The plan defines a backlogged road as one operating at a level of service standard below the minimum adopted by the County Council. However, a road operating below its designated level of service standard is not a backlogged road if it is a constrained facility or if it is scheduled for capacity improvements in the five-year road program of the Florida Department of Transportation or the County Council. 6/ Plan Element 20, Paragraph 14. A constrained road is one to which two or more lanes cannot be added due to physical or policy barriers. Plan Element 20, Paragraph 41. TCE Policies 2.2.1.7 through 2.2.1.9 identify backlogged road segments. TCE Policy 2.2.1.10 requires that the actual level of service standard for each identified backlogged road segment be raised by one standard by 1996. TCE Policy 2.2.1.11 requires that the level of service standards for each identified backlogged road segment attain, by 2001, the general standards set forth in TCE Policies 2.2.1.3 through 2.2.1.6. For constrained roads presently at their adopted level of service standards, TCE Policy 2.2.1.22 provides that, barring acceptable mitigation, the County shall not allow further development after the constrained road reaches the applicable level of service standard. 3. Concurrency Requirements The introduction to the Capital Improvements Element (CIE) links the concepts of level of service and concurrency. The introduction, which is not an adopted part of the plan, notes: "The existing service level was used as a benchmark for most of the proposed service level standards found in this draft [sic] element." The introduction acknowledges: Adjusting service levels [and] facility costs to projected revenue allocated to capital facilities is part of the [planning] process. If revenue allocated to pay for capital costs is insufficient, then either service levels have to be reduced or additional revenue raised or created to support the desired level of service. CIE Policy 15.1.1.3 prohibits the issuance of a development order for development that would degrade the level of service standard below the adopted standard, unless the plan specifically permits such a degradation. CIE Policy 15.3.1.1 states that the level of service standards adopted in the plan apply to all development orders issued after October 1, 1990. The issue of vested rights, which is generally reserved for land development regulations, is addressed to some degree in the plan. CIE Policy 15.1.1.7 requires orders for developments of regional impact, if issued after October 1, 1990, to be subject to the plan's concurrency requirements. CIE Policy 15.3.4.3 contemplates the reduction of level of service standards due to the effect of vested development; however, a plan amendment is required in such cases. Recognizing the importance of vested development in terms of demand on public facilities, CIE Policies 15.5.4.6, 15.5.5.1, and 15.5.5.2 require a study of reserved capacities and inventory and analysis of capacity remaining after the demands of vested development have been met. CIE Objective 15.5.1 states that the concurrency provisions adopted as part of the plan will become effective October 1, 1990. Other concurrency provisions are to be included in land development regulations. CIE Policy 15.5.1.1 identifies those facilities, including roads, for which concurrency is required. CIE Policy 15.5.1.3 states: The required facilities shall be in place and operating or estimated to be operating at a minimum service level established in this Comprehensive Plan at the time a building permit is issued, or a building permit is issued subject to the condition that the required facilities shall be in place prior to issuing of that final development order. A final development order is a building permit. Plan Element 20, Paragraph 52. CIE Policy 15.5.1.4 states that the required facilities shall be deemed concurrent "if they are under construction or under contract for acquisition at the time a building permit is issued." CIE Policy 15.5.1.5 adds that the required facilities shall be deemed concurrent "if they are the subject of a binding contract executed for the construction or acquisition of the required facilities at the time a building permit is issued." CIE Policy 15.5.1.6 states: New developments may meet the test for capacity and concurrency if they can be supported by the construction of specific facilities and the expansion of facility capacity by specific projects contained in the first year of the Capital Improvements five year schedule of programmed improvements (Capital Budget), following the issuance of a final development order. This policy shall pertain to the following facility categories: roads ... Specific conditions for the timing of private development and completion of the above facility categories shall be part of an enforceable development agreement and shall be part of the County's development review process when land uses and their densities/intensities are first proposed. Specific timing and phasing of these facilities in relationship to the issuance of building permits and other final development orders shall be delineated in [various land development regulations]. However, CIE Policy 15.5.2.2 requires: The following facilities shall be available to coincide 7/ with approval of building permits for developments that are to be built during a single phase: roads ... It shall be the intent of this policy to ensure that the above-mentioned facilities and services needed to support such development are available concurrent with impacts created by such developments... Specific timing and phasing conditions related to the above concurrency facilities shall be identified in greater detail in [various land development regulations]. Dealing with development projects designed to take place over several years, CIE Policy 15.5.2.3 provides in part: In these cases, programmed improvements from the Five Year Schedule of Improvements shall be included as part of the concurrency determination as long as their availability coincides with the impact of such a multi- year, multi-phase development. CIE Policy 15.5.2.4 addresses the situation in which necessary public or private facilities are delayed. If the delayed facility "may imperil the public health, welfare and safety," the County "may impose delay requirements on any permits it has issued so that public facility availability may be approximately concurrent with the impact of new development." Just as the backlogged and constrained roads are subject to special level of service standards, so too are they subject to special concurrency provisions. These provisions are contained in the policy cluster under CIE Objective 15.5.3. CIE Policy 15.5.3.1 describes the process by which the County will monitor levels of service on backlogged roads. The process begins with documenting as a benchmark the traffic counts on these roads prior to the adoption of the plan. CIE Policy 15.5.3.1.b provides that each backlogged road "shall not be allowed to degrade its operational service standards ... by ... more than twenty (20) percent of the peak hour bench mark [traffic] counts ... " 8/ The monitoring provisions require the County to use generally accepted traffic modeling procedures to project the number of trips generated by proposed developments and the likely distribution of these trips. Regarding backlogged roads, CIE Policy 15.5.3.1.e states: The County shall not approve any additional final local development orders, (excluding vested properties) including building permits, once the percent threshold for projects within urban/urbanized area center(s) including municipalities is reached from final development orders only if such local development orders would generate trips in excess of ten/fifteen/twenty percent on a peak hour basis, unless a final development order is subject to the adoption and implementation of an Area-wide Traffic Action Mitigation Plan. An Area-wide Traffic Action Mitigation Plan shall include, but not be limited to, the following activities: turn lanes signalization incentives for employees to use mass transit where available van/car pooling programs staggered work hours CIE Policy 15.5.3.1.f states that the "goal" of the Area-wide Traffic Action Mitigation Plan is to achieve "100 percent mitigation of the impacts of a proposed development" and that, where applicable, the plan shall include participants besides the developer, such as "adjacent property owners, business establishments and homeowner associations." CIE Policy 15.3.4.8 states: The adopted Volusia County Five Year Road Program, reflected in the Capital Improvements Element's five year schedule of capital improvements[,] will provide the capacity necessary to relieve backlogged State roads. In the event that revenues collected from transportation (road) impact fees fall short of projections and the need arises to delay any of the identified capacity projects, Volusia County shall amend this element and the Traffic Circulation Element through coordination with the Florida Department of Transportation and performing [sic] speed delay studies to more accurately evaluate the level of service on the effected [sic] backlogged road. The County shall temporarily defer the issuance of development orders having direct impact on the facility which cannot be corrected through implementation of a Traffic Action Mitigation Plan as identified in 15.5.3.1(e) of this element, until such time that the level of service has been improved to the acceptable level. Any change in service level standards as a result of speed delay studies shall be done through a plan amendment. 9/ Awkward grammar in the first sentence of CIE Policy 15.5.3.2 precludes a finding as to what constrained facilities are addressed by this policy, but in general the policy provides that the County "may allow development to occur [on these constrained facilities] which will not increase peak hour traffic volumes by more than five or ten percent." Five-percent degradation is allowed for physically constrained state roads, and ten-percent degradation is allowed for policy constrained state roads. CIE Policy 15.5.3.2 requires the developer of the development impacting a constrained road to prepare a Traffic Analysis and implement an Area-wide Traffic Action Mitigation Plan, but only after an urbanized constrained state road has degraded to its minimum level of service, as set forth in the plan. At this point, "no further degradation will be permitted below the minimum approved local service levels set for constrained roads, that in 1989 were operating at or above the desired minimum service level." CIE Policy 15.5.3.2.d prohibits the County from denying a development order if the developer demonstrates a willingness to maintain service levels by entering into an enforceable development agreement including the implementation of either an Individual or Area-Wide Traffic Action Mitigation Plan, where the developer has demonstrated good faith to achieve 100 percent mitigation of the impact of such development. Payment of the road impact fee may not necessarily meet the 100% mitigation desired. For constrained County roads, the County "shall closely monitor" traffic volumes. Once the constrained road reaches its minimum acceptable level of service (C if nonurbanized, E if urbanized), TCE Policy 2.2.1.22 provides: "the County may not allow further development which cannot provide acceptable mitigative measures to the adverse traffic impacts of the proposed development." For development impacting either a backlogged or constrained road, TCE Policy 2.2.1.23 requires the developer to prepare an "Area-wide Traffic Action Mitigation Plan" covering those geographic areas specified as affected by relevant land development regulations. Other policies describe the traffic impact model in detail and procedural processes by which persons denied development orders may challenge the factual bases underlying the denial. CIE Policy 15.5.4.1 limits to two years the life of the concurrency determination for all public facilities for which concurrency is required, unless the County and applicant agree otherwise. In the latter case, however, the applicant must guarantee his financial obligations for public facilities by providing a cash escrow deposit, irrevocable letter of credit, prepayment of impact fees, prepayment of connection charges, or Community Development District, pursuant to Chapter 190, Florida Statutes. CIE Policy 15.5.4.4.1 provides that "if concurrency and facility capacity is not available or cannot be made available through Policy 15.5.4.1(2)(a) ..., these findings shall be reasons for denial of such development orders." CIE Policies 15.5.5.7-15.5.5.9 add detailed requirements to the land development regulations concerning the concurrency management system and specifically the evaluation and monitoring necessary for the successful operation of a concurrency management system. 4. Financial Feasibility of Road Projects The final section of the CIE, although not formally adopted as part of the plan, is entitled, "An Introduction to the [CIE] Six Year Program: Fiscal Year 1989-90 to Fiscal Year 1994-95." This section begins: "The proposed [CIE]'s Five Year Program is feasible only to the extent that certain actions can be implemented prior to October 1, 1990." These actions include the following: approval of the one cent optional sales tax by May, 1990; increase of road impact fees to cover an estimated $6 million shortfall; and restriction of the funding of road safety and other road projects to sources other than existing gas tax revenues, such as the one cent optional sales tax, increased ad valorem taxes, or other sources. The introduction to the CIE concedes that the one cent optional sales tax is a key future revenue source to pay for improvements for facilities that either have no dedicated revenue source or that have revenue sources that have been used in the past but are no longer adequate to maintain or improve service levels into the future. Clearly without the One Cent Optional Sales Tax, the amount of Capital Improvements will have to be reduced in half. This will have severe impacts on service levels for ... roads ... The introduction reasons that ad valorem property taxes should not be used extensively for financing much of the required facilities because ad valorem taxes are needed to operate the newly constructed facilities and the seasonal population does not pay its fair share of the cost of facilities when they are financed by ad valorem taxes. Although not adopted as part of the plan, the data and analysis supporting the CIE contain useful background information concerning financial feasibility. Table 15-15 indicates that the County's share of the optional one cent sales tax would have been $81.3 million for the six-year period, 1990-95. Table 15-16 shows, for the same period, that capital road projects constitute about 24% of all capital expenditures. The Capital Improvement Program begins with a budget message from the County manager. Stressing the importance of the one cent optional sales tax, the message concludes that the only other viable Source of funding the County's infrastructure needs is the ad valorem tax. The total cost of road projects for 1990-96 is $122.6 million. Capital Improvement Program, page C-246. Of this sum, the local option sales tax was Projected to Provide $35.6 million. Id. During the same period, the County's capital expenditures are Projected to total $417.8 million. Capital Improvement Program, page B-2. Of this total, $249 million was Projected to be spent on facilities for which concurrency is required. Id. CIE Objective 15.3.1 places roads as the highest priority among all other facilities. The objectives and policies under CIE Goal 15.4 describe the funding Sources for capital projects. These Sources include user fees, impact fees, broad-based revenue sources, and debt Proceeds. Among user fees, CIE Policy 15.4.1.9 allocates the gas tax between maintenance and construction expenditures. CIE Policy 15.4.1.10 extends all gas taxes under the County's control to 2010. CIE Policy 15.4.1.11 directs the County to use "to the maximum extent possible" all other road user fees, such as toll roads, utility taxes, and special assessments. Addressing impact fees for roads, Objective 15.4.2 provides: Future development shall bear their fair share (a pro rata share) of not less than seventy (70%) percent of road facility costs including [right-of-way] as a result of their development in order to achieve and maintain the adopted level of service standards and other measurable objective standards. CIE Policy 15.4.2.6 requires the County to "verify that the impact fees are sufficient to cover the pro rata share of improvement costs necessitated by new development." CIE Objective 15.4.3 promises that the County will "rely primarily on the broadest revenue bases as possible for the funding of Capital facilities." CIE Policy 15.4.3.2 reserves the one cent optional sales tax for facilities for which no dedicated revenue sources exist. CIE Policy 15.4.3.3 restricts the County from using increases in the ad valorem tax millage rate for purposes other than operating costs associated with future additional capital facilities, unless other sources of funding are not available. CIE Policy 15.4.3.5 considers the alternatives if the one cent optional sales tax were not approved by the voters. In such a case, the County shall consider, among other measures, increasing the ad valorem tax millage rate to fund public facilities for which concurrency is required, creating special taxing districts, reducing service levels, increasing yet-to-be specified new revenue sources, and selectively using Community Development Districts. 10/ Relevant Provisions of the Regional Plan Policy 64.1 of the East Central Florida Comprehensive Regional Policy Plan (Regional Plan) provides: Local governments and the Florida Department of Transportation will set appropriate minimum levels of service for components of the regional roadway system under their respective jurisdictions. The ... Regional Planning Council will assist these bodies in developing their service standards, with the following level of service standards being used as guidelines in the determination of levels of service for individual components of the regional roadway system: In rural areas (Level of Service "C") * * * In urban fringe, urban residential areas, and outlying business districts (Level of Service "D") * * * In central business districts (Level of Service "E") * * * The minimum levels of service determinations will be based on the following criteria: Regional level of service guidelines: Existing conditions of each roadway: Planned programmed roadway improvements: Financial constraints: and Local Comprehensive Plans, and adopted DRI or other development orders. Level of service E on roads of the State Highway System are subject to the agreement of the local government, regional planning council, Florida Department of Transportation, and Metropolitan Planning Organization. Regional Plan Policy 64.5 provides: Access to minor arterials, major arterials and expressways shall be limited in order to maximize their traffic-carrying capacity and safety ... Regional Plan Policy 64.8 states: The principle of equitable cost participation shall be used as a guide in development approval decisions, including allocation of costs among private parties benefiting from or creating the need for transportation improvements, with consideration being given to: New development being required to pay its fair share as a condition for development approval, unless sufficient funds are available from other sources; Existing unmet needs being identified, to include the nature of the need and estimated cost of fulfillment; and Existing land uses and activities which benefit from better access being required to participate in the cost of the roadway improvement or new construction which results in the improved access in the form of user fees or special assessments. Provisions being made in local development orders to include the mitigation of adverse impacts on the state highway system. Regional Plan Policy 64.6 requires that traffic signalization, roadway signage, and operational capacities be designed "to optimize traffic flow and enhance the levels of service throughout the regional roadway network. Regional Plan Implementation Policy 64.5 provides in relevant part: Local governments are requested to undertake the following actions: Evaluate the feasibility and practicality of enacting ordinances capable of assessing existing landowners a proportionate share of costs associated with the elimination of unmet needs based on the provision of enhanced level of service benefits accruing from roadway improvements or new construction projects. Enact impact fee ordinances which are designed to cover the fair share cost of roadway improvements on local and state roadways except for that portion of deficient capacity already existing. Seek public review and comment on all new roadway construction proposals and widening projects. Regional Plan Implementation Policy 64.6 requests Metropolitan Planning Organizations to take certain actions and is thus irrelevant to the present case. Capital Improvements Element The financial feasibility of the entire plan, which is challenged by Petitioners Hart, has been considered to some extent in the findings concerning roads. These findings involve not only the financial feasibility of the Capital Improvement Program for roads, but the overall financial feasibility of the plan. As explained in the corresponding section of the Conclusions of Law, the optional one cent sales tax may be considered to a greater extent in determining the financial feasibility of the entire plan than it may be considered in the availability of scheduled capital projects in making concurrency determinations. The Capital Improvement Program, which schedules capital improvements for the six year period from 1990-1995, identifies, as noted above, $417.8 million in capital expenditures. Although the sources of funding are not collected in a single table like expenditures are, revenues are identified in numerous tables covering each of the numerous categories of public expenditures. In each case, revenues match expenditures. The Capital Improvement Program does not address alternative revenue sources to the optional one cent sales tax. However, CIE 15.4.3.5 describes revenue alternatives to the optional one cent sales tax. Future Land Use and Conservation Elements Data and Analysis The data and analysis accompanying the Future Land Use Element (FLUE) contain population tables prepared by the County, U.S Census, and Bureau of Economic and Business Research, University of Florida. The population projection for 2000, which is 506,000 persons, is the high-range projection prepared by the Bureau of Economic and Business Research. Support Document #1-1, page 14. Among the factors considered in the land use suitability analysis are the type of soil, presence of wetland vegetation, and nature of the floodplain if the land is located in the 100-year floodplain. Support Document #1-5, page Analysis of these factors is incorporated into a suitability rating system, which is then projected onto maps. Id. The land use suitability analysis contains an extensive inventory of native habitats, soils, and existing land uses by region. The suitability rating system factors in other items such as the availability of central water and sewer and the presence of historic resources. Support Document #1-6 describes the process by which future uses are allocated to the land. Taking the projected population of the unincorporated part of the County, the analysis first allocates the population among six geographic planning areas. Determining the number of dwelling units needed to accommodate the projected population, the analysis generates data indicating the additional acreage required, by the end of the planning timeframe, to accommodate expected residential and nonresidential uses. A growth factor of 30% is then added to the residential and commercial categories due to high growth rates expected from the County's proximity to Disneyworld and the proposed Spaceport. Support Document 1-7 describes the process by which the land uses necessary to accommodate the previously described growth are designated on the future land use maps. Data and analysis supporting the future land use designations for forestry, agriculture, and environmental uses are found in Support Document #12- 1, which accompanies the Conservation Element. Based upon considerable data concerning wildlife and native habitats, the analysis concludes that "there are broad expanses of ecologically interconnected lands." Id. at page 12R-50. The analysis recommends that the plan establish a land use category within which urban development would be discouraged... Because growth should be directed towards those lands best able to accommodate future development, marginally suited lands for development should be placed in a Natural Resource Management Area (NRMA), as should interconnecting environmentally sensitive and ecologically significant lands. This would include ... inland swamp systems, riverine and estuarine flood plains, critical wildlife habitats, and endangered, rare or threatened ecosystems." The recommendation for the establishment of Natural Resource Management Areas (NRMA) explains further: The area within the NRMA should be divided into districts of special use, promoting activities which are compatible with natural resource protection. Among these divisions should be one which affords a degree of protection to natural systems which would assure their continued, uninterrupted preservation. Although several thousand acres of these lands are in public ownership, there is not enough public funds to purchase all the environmentally sensitive lands in the County, and therefore requires land use controls to ensure an adequate degree of ecological integrity. Because a major component of the value of natural communities is the ecological interrelationships with other natural communities, a highly effective way to protect ecological functions would be to form a natural areas network, or corridors. Land which falls within this network, referred to as Environmental Systems Corridors (ESC's), would be restricted to land use activities which inflict extremely small long term impacts on ecological functions, primarily a type of large lot conservation residential and passive types of agriculture, particularly silviculture. The corridors should include protected systems of wetlands, conservation lands and, where possible, rare and threatened upland communities such as mesic hammocks and longleaf pine-oaks. Because silviculture is the predominant use on the relic marine terraces, and that this use appears to be the most suitable for the terraces given the natural constraints of the land, a forestry district should be established within the NRMA. The intent of the forestry district would be to promote silvicultural pursuits and to keep this a predominant use on the relic terraces. This should be part of the NRMA because silvicultural activities typically have the least impact on natural resources other than public ownership, and thus should be encouraged on private landholdings. Other types of agricultural uses should be allowed in the forestry district to provide a certain amount of flexibility, but silviculture should be the predominant use. * * * Established agricultural areas which occur within the NRMA, particularly around Samsula should be considered an agricultural enclave within the NRMA, and should have the appropriate agricultural land use classifications. The enclave should allow room for a limited amount of agricultural growth. Id. at pages 12B-51 and 12B-52. Although the analysis concedes that the data are unavailable by which to map the vegetative communities at a sufficiently high level of detail, the mapping was scheduled to be completed by March, 1990. In the meantime, maps contained in the Support Document indicate generally the location of important vegetative communities, partly because of extensive reliance upon NASA infrared maps of wetlands and vegetation. Goals, Objectives, and Policies Various goals, objectives, and policies are relevant to Petitioners Hart's challenge to the relationship between the forestry, agricultural, and environmental designations and the operative provisions of the plan. Conservation Element Objective 12.2.1 is to "provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Toward that end, Conservation Element Policy 12.2.1.1 provides that "[e]xisting, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning." These units are NRMA's. Conservation Element Policy 12.2.1.1 identifies specific areas to be included in NRMA. Conservation Element Policy 12.2.1.2 requires the County to: promote land use activities compatible with the intentions of the NRMA through the establishment of special use areas, the boundaries of which to be determined by resource data including: ecological community mapping as stated in Policy 12.2.2.1, USGS Topographic maps; National Wetland Inventory maps; Florida Natural Area Inventory records; available wildlife data; and site specific field information if available. Conservation Element Policy 12.2.1.2 establishes Environmental Systems Corridors (ESC) and Forestry areas within NRMA's. The policy identifies these two designations as follows: ESC's shall include significant interconnected natural systems of environmentally sensitive lands, connected to and including conservation areas where possible. Land use activities shall be limited to conservation, silviculture utilizing Best Management Practices, and large residential lots with limits on land clearance. Proposed roads which encroach within ESC's shall minimize adverse impacts by: aligning the routes at the least sensitive areas (e.g., narrowest width of wetlands); requiring sufficiently sized bridging and culverts over wetlands to allow non-interrupted water flow and wildlife access; and posting low speed limits and/or caution signs. A forestry category shall be established which shall promote the continued and expanded use of silviculture in Volusia County. Because the mixed use concept is an integral component of forest management, the standards of this category shall not interfere with this practice, so long as silviculture remains the dominant use and best management practices are followed. The Future Land Use Categories, which are adopted as part of the plan, describe in more detail the ESC, Forestry, and Agriculture designations. Most significantly, the Future Land Use Categories set residential densities at one unit per 25 acres for the ESC designation, an average of one unit per 20 acres for the Forestry designation (but one unit per five acres may be permitted), and one unit per ten acres for the Agriculture designation. FLUE, pages 1-2 to 1-6. The general designation of NRMA's is intended to carry out FLUE Objective 1.2.1, which requires FLUE designations to "reflect the inherent capabilities and limitations of the existing natural features of the land." FLUE Policy 1.2.1.1 requires that, during the development review process, the County shall consider the site's topography, vegetation, wildlife habitat, flood hazard, and soils, as well as the location of the 100-year floodplain. FLUE Policy 1.2.1.3 states that "lands most suited for silviculture activities shall be [designated] under the Forest Resource subcategory of NRMA." FLUE Policy 1.2.1.4 limits the extent of intensive agriculture in any NRMA. FLUE Policy 1.2.1.5 restricts residential development in any Forest Resource area to one unit per five acres. FLUE Coal 1.4 is to "ensure that agricultural and silvicultural lands are protected from encroachment by incompatible land uses and remain a vital element of the County's economy." FLUE Policy 1.4.1.1B provides that urban growth is to be directed away from Agriculture areas. Miscellaneous Findings Petitioners Hart own 11/ 1000-1500 acres at County Road 415 and State Road 44 in the vicinity of Samsula (Samsula Land). They also own 2000-2500 acres just west of Edgewater, south of State Route 44, and mostly east of I-95, which is known as the Charles Sibbald Grant (Sibbald Land). About 500-700 acres of the Sibbald Land lie west of I-95. About three miles south of the Sibbald Land, Petitioners Hart own 6000-8000 acres that is divided almost equally by I- 95 and is known as the John Lowe Grant (Lowe Land). It is not possible to cross I-95 where it divides the land. The Sibbald Land and Lowe Land have no improved roads or other public facilities. Petitioners Hart acquired all of the land for investment purposes. The Samsula Land is mostly undeveloped and used largely for cattle and possibly timbering. The Sibbald Land is a contiguous block of land that has not been subdivided. Hart Land & Cattle Co. acquired the land in the early 1970's. Timber has been harvested on the smaller section of this land west of I-95. The trees have been harvested for about 50 years. Back in the 1940's, a turpentine business was operated on the land. Petitioners Hart have also mined shell for road bases and red sand for asphalt from the Sibbald Land. Petitioners Hart acquired the Lowe Land in 1980 or 1981. Consisting of numerous noncontiguous lots, the Lowe Land is part of a 14,000-acre subdivision known as Cape Atlantic Estates, which was subdivided into 6000-7000 parcels in the late 1960's. Cattle are kept on the northeast corner of the Lowe Land. The Lowe Land has contained improved pastureland for almost 70 years. The record provides no basis for findings of the extent to which land owned by Petitioners Hart is subject to the ESC, Forestry, and Agricultural designations; the extent to which Petitioners Hart have been denied proposed uses of their land; the extent to which Petitioners Hart have exhausted County administrative remedies, such as requesting field surveys, to obtain available relief from the impact of the NRMA designations; or other matters relevant to the taking claims of Petitioners Hart. However, the evidence fails to establish that Petitioners Hart have been denied all economically reasonable uses of their entire property or any individual parcel. Ultimate Findings of Fact Traffic Circulation Element 1. Data and Analysis The evidence fails to establish to the exclusion of fair debate that the analysis accompanying the TCE inadequately addresses existing levels of service and present and future system needs, as well as the need for new and expanded facilities. The evidence fails to establish to the exclusion of fair debate that the analysis inadequately addresses projected levels of service based on future land uses and the relevant plans of other jurisdictions. The evidence is clear that the West Volusia Beltway is feasible, given the funding priorities assigned to its various projects in the plan. There is substantial evidence to support the transportation data and modeling on which the road networks are based. There is no significant evidence that the projected levels of service for any road segments are inaccurate due to an unjustifiable reliance on the traffic to be borne by the West Volusia Beltway or for any other reason. Petitioner Wenz alleged that TCE Policy 2.2.1.6, which establishes a level of service standard of E for County-maintained roads in urbanized areas, was internally inconsistent with the introductory language of the CIE concerning the use of existing level of service standards as benchmarks for most of the proposed level of service standards set forth in the plan. This allegation has been treated as raising the issue of supporting data and analysis. 12/ For roads, the analysis begins with the existing levels of service and then, as indicating in the introduction, adjusts service levels to correspond to projected revenues. If the use of the word "benchmark" were to imply an unvarying standard, then the sentence would impose upon the planning effort an unrealistic and, in the case of the County's urban containment strategy, unworkable limitation. Operative plan provisions should not be rejected because of lack of support from incompetent analysis. 2. Goals, Objectives, and Policies The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible in terms of scheduled road projects. Roads receive the highest priority for capital spending in the County. Although the optional one cents sales tax required a referendum, the plan adequately identifies other potential sources of revenue to fund needed road improvements. The unavailability of the optional one cent sales tax means the loss of $35.6 million for road projects over the six-year period covered by the Capital Improvement Program. Representing about 29% of the road budget for these six years, the optional one cent sales tax can be replaced by other funds. Total capital spending over this period is projected at $417.8 million, of which $249 million is projected for facilities for which concurrency is required. The evidence does not establish to the exclusion of fair debate that the shortfall of $35.6 million, under these facts, renders the plan financially unfeasible as to roads. As the plan acknowledges, another factor supporting the financial feasibility of the plan as to roads is the concurrency provisions. 13/ The evidence fails to establish to the exclusion of fair debate that the plan fails to create a monitoring system to enable the County to determine whether it is adhering to the adopted level of service standards and whether public facilities are available. The evidence fails to establish to the exclusion of fair debate that the plan fails to require development agreements to ensure that required facilities will be in place when the impacts of development occur. During periods of revenue shortfalls, timely concurrency determinations supported by an effective monitoring system and understandable level of service standards may help preserve financial feasibility. A concurrency management system breaks the cycle by which the impacts of development outpace the ability of a local government to finance needed infrastructure. To prevent the accumulation of infrastructure deficits, such as backlogged roads, a concurrency management system limits development whose impacts exceed the available capacity of facilities for which concurrency is required. In the absence of funding from the developer or a third party, a financially strapped local government no longer permits the proposed development and thus does not increase the backlog of needed public facilities. The portion of Petitioner Wenz's challenge to provisions governing development agreements also raises the issue of concurrency determinations, at least in the situation where the developer, rather than the County, is providing the required facilities. As to development agreements, CIE Policies 15.5.1.6 and 15.5.3.2.d provide for the use of enforceable development agreements to provide required facilities. CIE Policies 15.5.1.1 et seq. establish generally applicable concurrency requirements that adequately correspond, for the purpose of resolving the present claims, to the concurrency criteria in Rule 9J-5.0055. The concurrency determinations for developments impacting backlogged and constrained roads reflect a strategy of adjusting level of service standards, subject to clear standards and specific time limits, to provide time to eliminate deficiencies that have accumulated over the years. The evidence fails to establish to the exclusion of fair debate that this strategy, when used in development agreements, precludes effective concurrency determinations or, when considered in light of the financial feasibility of road projects, renders the plan financially unsound. 3. Consistency with Regional Plan The evidence fails to establish to the exclusion of fair debate that the plan is inconsistent with the cited provisions of the Regional Plan. Most importantly, the plan's level of service standards are consistent with those contained in Regional Plan Policy 64.1, and the plan's sources of revenue are consistent with the principle of equitable cost participation in Regional Plan Policy 64.8. To the extent that the remaining Regional Plan provisions cited by Petitioner Wenz contain criteria against which the plan may be measured, no evidence suggests the existence of any inconsistencies. Capital Improvements Element The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible. Future Land Use Element 1. Data and Analysis 120. The evidence fails to establish to the exclusion of fair debate that the data and analysis fail to include a land use suitability analysis or that they fail to support, such as through the absence of accurate population projections, the NRMA designations of ESC, Forestry, and Agriculture. To the contrary, the land use suitability analysis is thorough, and the omission of these NRMA designations or equivalent conservation designations would itself have been unsupported by the data and analysis. 2. Maps and Goals, Objectives, and Policies The evidence fails to establish to the exclusion of fair debate that the NRMA designations of ESC, Forestry, and Agriculture, or any other designations contained on the future land use maps, are inconsistent with the operative provisions of the plan. Again, to the contrary, these NRMA designations graphically depict the text of relevant goals, objectives, and policies.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of all Petitioners. ENTERED this 2nd day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 2nd day of August, 1991.
The Issue Whether Amendment 99-1-NOI-5017-(A)-(I), Ordinance Number 509, to the Town of Juno Beach's (Town) Comprehensive Plan (Comprehensive Plan) is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and as alleged in the Petition for Formal Administrative Hearing.
Findings Of Fact Patterson, Bisbee, and McLeod Petitioners, Dr. Patricia M. Patterson and James M. Bisbee, are husband and wife and have resided at 431 Olympus Drive, Town of Juno Beach, Florida, since February, 1999. Dr. Patterson is a Professor of Public Administration at the Florida Atlantic University. Prior to occupying this residence, Dr. Patterson investigated the neighborhood and wanted to reside in an ungated, single-family neighborhood. Dr. Patterson describes her neighborhood as the Ridge Area, which has a southern border of Olympus Drive or south to a new development, a western border of U.S. Highway 1 (U.S. 1), an eastern border of Ocean Drive or A1A, and a northern boundary of the Ocean View Methodist Church (Church). The linear Ridge bisects this area, running approximately north and south. See (Town's Exhibit 1A); (Petitioners' Exhibits 9A & 9B). The top of the Ridge consists predominantly of single- family residences. There is a significant increase in elevation from the U.S. 1 corridor, east to the top of the Ridge. The Patterson/Bisbee residence is located on the top of the Ridge, toward the middle of Olympus Drive. Mr. McLeod resides in a single-family residence, east and adjacent to the Patterson/Bisbee residence. There is a rental, single-family home immediately adjacent to the west of the Patterson/Bisbee residence. The lots to the west of the rental property are vacant and include the corner property (+/-.34 acre) subject to the Plan Amendment, which is at the bottom of the hill on the U.S. 1 side. Shortly after they moved into their new residence, Dr. Patterson learned from a neighbor that a Key West-style home was proposed to be built on a portion of the vacant lot. Dr. Patterson attended the Town's Land Planning Agency (LPA) April 1999, meeting and learned that there was a proposal to change a portion of the use of the vacant lot to "commercial." She learned that an application was filed on behalf of the Town's former Mayor and a former Councilman. Dr. Patterson expressed concern that the area should remain residential and not be changed to commercial. Dr. Patterson appeared at the May 1999, Town Council meeting and objected to the proposal on behalf of herself and Mr. Bisbee. Dr. Patterson also furnished the members of the Town Council with a letter dated May 17, 1999, which set forth her objections to the proposed changes. Dr. Patterson also attended part of the November 1999 Town Council meeting. Mr. Baird appeared before the LPA and the Town Council on behalf of Mr. McLeod. Dr. Patterson objects to the proposed Plan Amendment to the Town's Comprehensive Plan based on the proposed "commercial" use of the site, rather than the architectural style of the building proposed by Celestial. The Petitioners are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes, and have standing to participate as parties in this proceeding. Celestial Celestial is a partnership, which owns property and conducts a business in the Town of Juno Beach, Florida. In or around March of 1999, Celestial, the applicant, submitted an Application for an amendment to the Town of Juno Beach Comprehensive Plan. Celestial proposed to re-designate a +/-.34 acre portion (the Property) of a +/-.57 acre parcel owned by Celestial. The entire +/-.57 acre parcel is vacant property at the northeast corner of U.S. 1 and Olympus Drive. Celestial sought to amend the Town's Future Land Use Map (FLUM) from the existing "low density residential" classification to the "commercial" classification for the western or corner portion, which is approximately +/-.34 acre. Celestial proposes to build a two (2)-story structure, with a professional office with residential units on the second level. The structure would be of an architectural style that will be compatible with surrounding, existing residential developments. Celestial has standing to participate as a party in this proceeding. Section 163.3184(1)(a), Florida Statutes. The Town The Town is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. On November 17, 1999, the Town adopted Ordinance Number 509 as an amendment to the Town's Comprehensive Plan. The Town also adopted Ordinance Number 510, which rezones the Property to "commercial office." The Department The Department is the state land planning agency, having authority to administer and enforce the Act. Among other responsibilities of the Department under the Act, the Department has the responsibility to review comprehensive plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act. Section 163.3184(8), Florida Statutes. The Department reviewed the Plan Amendment and determined that it was "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes. The Town of Juno Beach, the Property, and the "Neighborhood" The Town is a small coastal community consisting of approximately 903 acres. The Town is located along the U.S. 1 corridor in Northern Palm Beach County, with municipalities, Jupiter and Tequesta to the north, and Palm Beach Gardens, North Palm Beach, Lake Park, and Riviera Beach to the south. The Town is bounded on the east by the Atlantic Ocean. The U.S. 1 corridor was the subject of a study, conducted by the Treasure Coast Regional Planning Council in 1999, which became known as "Seven Cities: Northern Palm Beach County US 1 Corridor Study." "[T]he 16-mile corridor is primarily a four-lane facility involving a mixed bag of landscape and lighting treatments, roadway designs, land uses, access management, and drainage infrastructure. Conditions in the corridor range from urban to rural, from healthy to blighted. Long range transportation plans have called for the corridor to be widened to six lanes over times, but the need for this widening has been called into question." "Juno Beach's segment of US 1 is a long expanse with a variety of situations, ranging from the semirural or naturalistic sea scrub landscape to suburban areas of shopping malls & hotels, to strategically located vacant parcels ideal for infill development. The planning team recommends that each of these areas have its own distinct planning approach for improvement over time." Several recommendations are made for the Town, including the provision of "[a] variety of uses" for the town center location at the intersection of Donald Ross Road and U.S. 1, north of the Property, "including adding 'in-town' residential options: apartments above shopfronts, rowhouses along intimate streets, live/work loft combinations and so on would complement Juno Beach other excellent housing offerings." The Study also generally encourages attractive building facades with doors and windows facing the street, as opposed to "[b]lank, windowless facades facing streets [which] are absolutely deadening to the scene for pedestrians and motorists alike." There seems to be some criticism of the existence of "halfhearted 'buffer' of landscaping between the highway and a 'sound wall,'" in the Town area, which does appear along U.S. 1, north and south of the Property. The lands contiguous to the +/-.34 acre Property, on the north and east, are designated "low density residential," on the Town's FLUM. The land to the immediate east of the subject property is vacant and owned by Celestial. See Finding of Fact 3. The land to the immediate north is developed with a single-family home. A four-lane divided highway (U.S. 1), with a 120-foot right-of-way, is located to the west of the vacant Property, and extends from the Town's southern boundary to its northern boundary. There are approximately 24,000 daily trips of traffic passing the Property on U.S. 1. The speed limit on U.S. 1 is fifty (50) miles-per-hour, a speed not consistent with low residential development. The southern and western borders of the Town consist of lands owned by Palm Beach County and maintained as conservation areas. The land immediately to the west of the Property from U.S. 1 is designated "commercial" on the Town's FLUM and is called Seminole Plaza (Seminole), a 65,400-square foot, fairly large-scale, shopping center with various commercial and professional tenants, located on approximately five (5) acres. The property west of U.S. 1, north and south of Seminole, is owned and maintained by Palm Beach County as conservation areas. A short distance south of Seminole are Florida Power and Light's Juno Beach Offices and West Offices, both of which are office developments approved for land totaling over sixty (60) acres. To the immediate south of the Property is Olympus Drive. The land across Olympus Drive, to the immediate south of the Property, is designated "low density residential," and is developed as a Planned Unit Development (P.U.D.) consisting of single-family homes. This is the "Seaside" area and is bounded on the north by a white picket fence, which does not provide access to "Seaside." Pedestrian and vehicle traffic enter the Seaside development from the east along Ocean Drive or A1A. The southeast corner of Olympus Drive and U.S. 1, which is directly across from the Property, is within Seaside. There is no residential development on the southeast corner. Rather, the corner is developed with a concrete cul-de-sac. This parcel is not eligible for residential development under the Town's zoning code. The Town presented a composite exhibit of photographs of various commercial and other non-residential uses which are interspersed in the vicinity of the Property. The photographs were overlaid onto an aerial photograph of the general area between Donald Ross Road to the north of the Property, and Juno Road, to the south of the Property. The Property is located approximately mid-point between these roads. This visual depiction of the area demonstrates the variety of the uses and structures, which have developed along this segment of the U.S. 1 corridor within the Town, as well as the impact of that highway upon the development in the vicinity of the Property. The developments, north and south of the Property, include office buildings, the Church, an automotive repair business (e.g. Goodyear), motels (e.g. Hampton Inn) and a golf course. For example, the two-story, 9,000 square foot Juno Beach Professional Office Building, is located four-tenths of a mile north of the Property, east and fronting U.S. 1, and between a duplex and a single-family house. (This house has a yellow retaining wall directly fronting U.S. 1.) The Church is directly east of the office building. There are several vacant lots south and east of U.S. 1, designated "low density residential," which are undeveloped. There is a vacant, two (2) acre, commercially-designated parcel, two-tenths of a mile to the south of the Property on the east side of U.S. 1. Compare with Findings of Fact 1-3. Amendment to the Town's Comprehensive Plan In April of 1999, Celestial filed a revised Application requesting an amendment to the Town's Comprehensive Plan, changing the FLUM classification of the Property from "low density residential" to "commercial." Among other things, Celestial advised that its Application was for a low-density project on the northeast corner of U.S. 1 and Olympus Drive. Celestial further stated that the proposed commercial (mix-use) land is compatible with the commercial uses adjacent to and across from U.S. 1 from the Property and that the residential component of the mixed-use proposal will be compatible with the residential uses to the north, east, and south of the Property. Celestial did not request a change to the Town's "commercial" FLUM designation. Several documents were attached to the Application including a vegetation survey with indicated that the Property had no environmental constraints which would prohibit its development. Other correspondence included with the Application indicate that all major utilities including telephone, electric, water, and sanitary sewer, would be provided. The described project also met the Traffic Performance Standards of Palm Beach County. Further, the Florida Department of Transportation concluded that the placing the drive on Olympus Drive would better serve the development for the convenience and safety of the proposed access. On April 19, 1999, the Town of Juno Beach Planning and Zoning Board considered the proposed Plan Amendment to the Town's Comprehensive Plan's FLUM. Mr. Peduto, Director of Planning and Zoning, reviewed the Application, coordinated the review by other governmental entities, prepared the staff report, and recommended approval of the Plan Amendment. The report describes the proposal and sets forth an analysis which included, in part, the following: The proposal meets the adequate facilities standards and is not in the Coastal High Hazard area, as defined by the Treasure Coast Regional Planning Council (TCRPC) and State of Florida. The proposed change is an appropriate classification for the subject property. The proposed project is an "infill" development, as opposed to "sprawl" development. Infill development is supported by the TCRPC Strategic Regional Policy Plan. Sprawl, which is typical through "Euclidean" planning, creates isolated uses through non-flexible zoning districts, and also through "single-use" structures. The opposite of this is more "neo-traditional" planning, which encourages multi-use structures and is more community oriented, creating more livable, healthy and sustainable communities and neighborhoods. This is why infill development becomes so important to revitalizing and recreating community in a town's neighborhoods. The Town of Juno Beach has expressed through historical efforts and its Comprehensive Plan (as well as its Zoning Code) that it envisions a sustainable community atmosphere. Mixed-use projects play an important role in this long term, committed effort. While remaining consistent with the Comprehensive Plan and Zoning Code, the subject property is an ideal location to further express this effort. The subject property is located along an "urban principal arterial" highway, within an older residential neighborhood. Just south of the subject property [across Olympus Drive] is an newer residential neighborhood [Seaside]. West of the subject property is a commercial plaza (Seminole Plaza) with various commercial uses, from office uses to restaurant, retail, service oriented, medical and private educational uses. Further east is a large public recreational area and the Juno Beach Town Center. In the general area there is an existing mixed use which functions as an important community/neighborhood element in this section of the town. As part of the revitalization process of this overall area of town, the proposed project and petition brings an element of balance between newer residential and older residential, introduces a mixed-use and creates an ideal "bridge" between the western commercial uses and eastern residential, community and recreational uses. The proposed project meets the standards set forth by the Goals, Objectives and Policies in the adopted Town of Juno Beach Comprehensive Development Plan. The report also indicated that "[t]he Comprehensive Plan directly encourages mixed-uses throughout the document," and cited to several Objectives and Policies. The report confirmed that utilities and service providers have sufficient capacity to serve the Property for a potential project within the proposed designation/classification; that there are no environmental concerns concerning the entire +/-.57 acre site including the Property (+/-.34 acre); that the existing level of service standards of the adjacent U.S. 1 will not be adversely impacted by the proposed change of land use; that water and wastewater facilities exist nearby the site and will be able to provide for appropriate services to the site; that solid waste removal services will also be provided; and that all specific drainage designs must be acceptable to the Town engineer upon submittal of any site plan. The report concluded that the Plan Amendment is consistent with the Town's Comprehensive Plan and, in part, that the proposed change is "an appropriate land use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " The Town's Planning and Zoning Board considered the Application. Numerous local residents, including Dr. Patterson and Attorney Thomas Baird representing Petitioner McLeod, opposed the Application. A motion to approve the Application to amend the Comprehensive Plan's FLUM failed with a 3 to 2 vote. Further, a motion to approve a request for a change in zoning from the existing designation of residential single-family to the designation of commercial office was not approved by a vote of 3 to 2. On or about May 12, 1999, Celestial submitted a "memorandum on proposed land use changes" to the Town, which provided a historical analysis of the development of the Town, including but not limited to changed circumstances around Olympus Drive and U.S. 1. The Town Council (Council) of the Town of Juno Beach met on May 26, 1999, to consider Ordinance Number 509 which provided the amendment vehicle to the Town's Comprehensive Plan requested by Celestial. This was the first reading and public hearing for this Ordinance. Several area residents and others were in attendance. The results were mixed with some residents speaking in favor and some against approval of Ordinance Number 509. After some discussion by the Council members, and responses from the Town planner and Celestial's representative, the Council approved Ordinance Number 509 on first reading by a vote of 4 to 1. The Council also discussed, on first reading and during a public hearing, Ordinance Number 510, which proposed to approve a rezoning request for the Property to "commercial office." Attorney Tom Baird, on behalf of Petitioner McLeod, opposed the rezoning request. Dr. Patterson also opposed the request. "Town Planner Peduto pointed out the property that was annexed into town with a residential zoning designation, surrounded on three sides by residential and rezoned to Commercial. This parcel is known as Dr. Hinman's Building, Juno Beach Professional Building. He also pointed out another parcel on U.S. 1 surrounded by residential that was given a commercial land use classification and commercial general zoning designation upon its recent annexation into the town." The minutes indicate that the Council was aware that the Planning and Zoning Board had recommended denial. The Council had before it the Town's Staff Report and Recommendation, which was previously presented to the Town's Planning and Zoning Board in substantially the same form. See, e.g., Finding of Fact 30. The Council unanimously approved Ordinance Number 510 on first reading. On or about August 5, 1999, the Town submitted numerous documents to the Department of Community Affairs, including but not limited to, the Town's Staff Report and Recommendation and proposed Ordinance Number 509. The Town requested no formal review. By letter dated September 3, 1999, the Florida Department of Transportation advised the Department that it did not recommend a formal review of the proposed amendment. By letter dated September 16, 1999, the Department of Environmental Protection offered no comments to the Department. The staff at the Treasure Coast Regional Planning Council (TCRPC) submitted a memorandum dated September 17, 1999, for the Council members. The TCRPC is required to review the Plan Amendment prior to formal adoption by the Town Council. The TCRPC stated, in part, in its evaluation: The Town indicates that the proposed amendment is consistent with the Town Comprehensive Plan. The proposed development represents infill. Mixed-use projects of the nature are intended to play an important role in the Town's efforts to create a sustainable community. The amendment is consistent with several objectives of the Town Comprehensive Plan and also with the SRPP which encourages infill development and multi-use structures. The Town indicates that the proposed development will bring a balance between newer and older residential areas and creates a good transition between commercial and residential uses. All urban services are available to the site, there are no level of service concerns, and an environmental survey indicates that there are no environmental concerns relating to development of the site. According to the TCRPC, the proposed Plan Amendment would not have adverse effects on significant regional resources or facilities. The TCRPC concluded that "[b]ased on the lack of extrajurisdictional impacts or effects on significant regional resources and facilities, [TCRPC] does not recommend that the amendment be formally reviewed." However, the [TCRPC] noted: According to the SRPP, a mix of uses on a single property is desirable. However, the first mixed-use development in an area which has previously been devoted entirely to residential use can create controversy and result in opposition from nearby property owners. According to the Town, this has been the case for the subject amendment. Some of this controversy can be avoided and property owner objections lessened by creating a very fine-grained plan. The Town's comprehensive plan contains only a single commercial FLUM category. Therefore, neighbors are understandably concerned about what the type of commercial use might occupy the subject property. During the preparation of its Evaluation and Appraisal Report, the Town should consider the preparation of a more fine-grained plan for those parts of town where the "richness" of the urban fabric is important to protect, preserve, and enhance. On September 17, 1999, the Department advised the Town of its determination that the proposed Plan Amendment should be formally reviewed for consistency. On October 26, 1999, the South Florida Water Management District advised the Department that the District had no water resources related comments regarding the Town's proposed Plan Amendment. No state, regional, or local governmental entity requested review of the Plan Amendment. On November 12, 1999, the Department advised the Town that the Department had no objection to the proposed Plan Amendment. This letter served as the Department's Objections, Recommendations, and Comments (ORC) report. On October 27, 1999, Celestial provided the Town with a Supplemental Memorandum regarding land use changes in the Town since 1990. On November 17, 1999, the Council met to consider Ordinance Numbers 509 and 510 for second reading and received a Staff Report and Recommendation, authored by Mr. Peduto, which contained similar data and analysis from the prior report. See, e.g., Finding of Fact 30. The Town's staff also prepared a report and recommendation regarding the rezoning request/petition, Ordinance Number 510. During the hearing held regarding Ordinance Number 509, the report and recommendation, with backup, and the file for both this hearing and from the previous approval hearing, were entered into the record. During the hearing, the Council was apprised, in part, that the Planning and Zoning Board had recommended denial, by a three-to-two vote, "based on traffic concerns." The minutes further reflect that "[t]he [t]own traffic consultant agrees to the traffic studies from the applicant and the County. He reviewed other areas in [t]own that similar re-zoning occurred located on a local collector, abutted by residential and located on a major thoroughfare." During the public hearing, attorney Baird, representing Petitioner McCloud, advised the Council that Ordinance Number 509 needed to be corrected in the second "WHEREAS" clause stating that the land planning agency had recommended that the Town not adopt the ordinance. "He said the primary reason (to not approve the ordinance) is that the land use classification was incompatible with the residential neighborhood." Several persons opposed the Ordinance, whereas others favored the Ordinance. The Council received numerous letters both for and against Ordinance Number 509. The Council also received petitions for and against the Ordinance. After discussing the issue, the Council approved Ordinance Number 509 by a vote of 4 to 1. The Council also considered Ordinance Number 510 and after considering information both for and against, the Council voted 5 to 0 to approve Ordinance Number 510. On November 23, 1999, the Town submitted the adopted Plan Amendment to the Department. On January 7, 2000, the Department completed its review of the adopted Plan Amendment, Ordinance Number 509, and "determined that it meets the requirements of Chapter 163, Part II, Florida Statutes (F.S.), for compliance, as defined in Subsection 163.3184(1)(b), F.S." Petitioners' Objections to the Plan Amendment Petitioners claim that the Plan Amendment, as applied to the Property, is inconsistent with and, therefore, does not further the "Goal," Objective 1, and Policy 1.3, of the FLUE of the Comprehensive Plan. Petitioners also claim that the Plan Amendment is inconsistent with and fails to comply with Rules 9J-5.005(2)(a) and 9J-5.006(4)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes. Petitioners' claim that the Town has approved the Plan Amendment, which approves a mixed-use, without any specific provision in the Comprehensive Plan for a mixed-use designation. Petitioners further claim that the Plan Amendment is not supported by sufficient data and analysis, nor is the analysis professionally acceptable. Petitioners' inconsistency and incompatibility arguments focus primarily on Petitioners' description of the relevant "neighborhood." Mr. James Fleischmann testified on behalf of Petitioners as to his definition of the relevant "neighborhood." Mr. Fleischmann and Dr. Patterson carved out the area east of U.S. 1 and west of A1A and bordered on the north by the Church and on the south by the Seaside area, designated "low density residential," as the appropriate "neighborhood." They opined that any non-residential development within this area was inconsistent with this "neighborhood." See also Findings of Fact 1-3. The "Goal" of the Town's Comprehensive Plan Future Land Use Element (FLUE) provides: A Town characterized by a community spirit that: recognizes its historical development patterns and styles; maintains its established neighborhoods in a safe, secure, beautified, and efficient manner by providing for both vehicular and pedestrian movement in, and around, town; which promotes future growth and development that is creative and enhances historical values and architectural styles that are indigenous to Juno Beach; which protects natural environmental features; and which reflects those development values by well defined neighborhoods and public areas that create an overall continuity to the Town while providing effective and efficient community services. There is no definition of "neighborhood" in the Town's Comprehensive Plan, Chapter 163, Florida Statues, or Rule 9J-5, Florida Administrative Code. Mr. Fleischmann provided his definition based upon his experience and expertise. Mr. Fleischmann did not rely on any specific portion of the Town's Comprehensive Plan in defining his view of the relevant "neighborhood." Mr. Fleischmann testified that all of his opinions concerning compatibility and internal Comprehensive Plan inconsistency in this case are based upon his definition of the relevant "neighborhood." U.S. 1 is a major, four-lane highway, which accommodates traffic at speeds, which are incompatible with a low-density residential neighborhood. It was not unreasonable for the Town to consider that the "neighborhood" area is not as limited or restricted as proposed by Mr. Fleischmann. In fact, Seminole, across U.S. 1 from the Property, actually serves the identified "neighborhood" east of U.S. 1. The data and analysis presented in this hearing, most of which was presented to the Town Council, demonstrates that the area in proximity to the Property has changed over the years, including but not limited to the expansion of U.S. 1 and the development of Seminole directly across from the Property. The weight of the evidence demonstrates that approval of the Plan Amendment will not cause the "neighborhood," as defined by Mr. Fleischmann, to be unsafe, insecure, or not beautified, nor will it impede vehicular and pedestrian movement in and around the Town. The data and analysis presented in this record do not support Petitioners' argument that the Plan Amendment is inconsistent with the "Goal." Also, the analysis was performed in a professional manner. Objective 1 of the FLUE of the Comprehensive Plan provides: To manage growth and development through the preparation, adoption, implementation, and enforcement of land development regulations which: coordinate future land uses with the appropriate topography, some of the conditions and the availability of the facilities and services; prevent, eliminate, or reduce uses inconsistent with the Land Use Goal, Future Plan, and Future Land Use Map; and which require redevelopment, renewal or renovation, where and when necessary through the establishment of standards or for density and intensity of land development. This Objective requires only the adoption of land development regulations to implement its provisions. The record is clear that the Plan Amendment, as a future land use amendment, is not a land development regulation. Petitioners also contend that the Plan Amendment is inconsistent with Policy 1.3 of the FLUE and Rule 9J- 5.006(3)(c)(2), Florida Administrative Code. See Conclusion of law 87. Policy 1.3 states: "Implementing ordinances, regulations and requirements regarding the development of land shall consider adjacent land uses and promote compatibility with those uses." Mr. Fleischmann claimed that he was unaware of any analysis of compatibility in the Staff Report and Recommendation presented to the Town Council in support of the Plan Amendment. However, Mr. Peduto, in the staff report, analyzed the relationship of the Plan Amendment to the surrounding properties, and stated, in part: "[T]he proposed project and petition bring an element of balance between newer residential, older residential and existing commercial, introduces a mixed- use and creates an ideal transition between the western commercial uses and eastern residential, community, and recreation uses." Mr. Peduto also considered the issue of compatibility and stated: "[The Plan Amendment] is an appropriate land-use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " Petitioners next contend that the Plan Amendment is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(4)(c), Florida Administrative Code, because the "commercial" FLUM land-use category is not a "mixed-use" category, does not contain a percentage mix of uses, and does not contain densities and intensities of use for all identified land uses. The Town's Comprehensive Plan has numerous future land use classifications, including a classification called "commercial." This definition provides: Land Uses and activities within land areas which are predominantly related to and used for the sale, rental, and distribution of products; the provision or performance of business, personal and professional services. However, in order to allow for mixed uses, a maximum of 75 percent of the total gross floor area on the site may be used for residential development, not to exceed a density of 22 dwelling units per gross acre. The land uses allowed in the "commercial" category include mixed uses, such as residential and commercial. These general descriptions are consistent with the requirements of Section 163.3177(6), Florida Statutes, and the definitions in Rules 9J-5.003(21)("commercial uses") and 9J- 5.003(108)("residential uses"), Florida Administrative Code. The mix of uses is established within the description of the "commercial" land use category itself. A maximum of seventy-five percent (75%) of the total gross floor area on-site may be residential, with the remainder being commercial. The residential density is also established in the definition of "commercial" for a maximum of twenty-two (22) units per gross acre. Further, it appears the intensity standard for allowable commercial uses is found in FLUE Object 1, Policy 1.13 b. of the Town's Comprehensive Plan which provides: "The Building Site Area Requirements, as established in the CG-Commercial General and CO-Commercial Office zoning districts, shall provide the basis for intensity of use and be the development criteria standards for general commercial and commercial office development, respectively, in Juno Beach." The definition of "commercial" includes, and authorizes a "mixed-use" of the Town's property, including the Property, which is the subject of the Plan Amendment. Petitioners also claim that the Plan Amendment is not supported by data and analysis as required by Rule 9J- 5.005(2)(a), Florida Administrative Code. Mr. Fleischmann opined that based upon his examination of the record as it existed on November 19, 1999, the data submitted to the Town was insufficient and the analysis not professionally acceptable. Conversely, the data available to the Town and the evidence presented at the de novo hearing, is adequate to support a finding that the Town's decision to change the land use category for the Property from "low density residential" to "commercial" is at least fairly debatable. Mr. Fleischmann's disagreement with Mr. Peduto and the Town staff's analysis of the facts is not conclusive. Mr. Fleischmann offers a different opinion, which failed to overcome the data and analysis of record in this case. Petitioners also argue that the Plan Amendment could not be approved without the Town, and the Department's, requiring an analysis of a "worst case scenario." However, Mr. Wilburn's testimony in this regard is persuasive in that this analysis is normally employed in the planning field for a FLUM amendment only in terms of analyzing the five areas that a local government is required to set level of service standards, i.e., roads, water, sewer, recreation, and open space. It is not appropriate to use a "worst case scenario" when reviewing issues of compatibility. Importantly, the record indicates that there is no issue raised in this case regarding the sufficiency of the existing or proposed level of service standards. The Town Council held two public hearings regarding the Plan Amendment, heard from the public, including Petitioners, and was presented with adequate data and analysis to reasonably conclude that the Plan Amendment was consistent with its Comprehensive Plan and the relevant statutes and rules at issue in this case. In summary, the Plan Amendment's change of the FLUM land use category for the Property is fairly debatable, particularly in light of the historical development occurring within the Town, and the changing conditions affecting the U.S. 1 corridor in the vicinity of the Property. Based upon the totality of the circumstances and factors presented in this case, the Plan Amendment is consistent with the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Town of Juno Beach's Comprehensive Plan Amendment, Ordinance Number 509, is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and rules promulgated thereunder. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2001. COPIES FURNISHED: Thomas J. Baird, Esquire Thomas J. Baird, P.A. 11891 U.S. Highway One Suite 105 North Palm Beach, Florida 33408-2864 Daniel K. Corbett, Esquire 300 Mercury Road Juno Beach, Florida 33408 W. Jay Hunston, Jr. Esquire Gregory S. Kino, Esquire Boose Casey Ciklin Lubitz Martens McBane & O'Connell 515 North Flagler Drive Northbridge Center-19th Floor, Suite 190 West Palm Beach, Florida 33401-4330 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Comprehensive Plan Amendment 2002-02, adopted by the Town of Jupiter (Town) as Ordinance 62-02, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties Petitioner, Anna Current, resides at property on the Jupiter River in the Town of Jupiter at 711 Ryan Road, Jupiter, Florida 33477. The Town of Jupiter (Town) is a municipality of the State of Florida whose address is 210 Military Trail, Jupiter, Florida. The Department of Community Affairs (DCA) is the state land planning agency with the duty to review comprehensive plan amendments pursuant to Sections 163.3164(20) and 163.3184. The Amendment Amendment 2002-02 (Amendment), which was adopted by the Town's Ordinance 62-02, consists of four text amendments, one amendment to the Transportation Map Series, and one amendment to the future land use map (FLUM) element. The first text amendment amends the Transportation Element by adding Policy 2.2.6. Policy 2.2.6 requires updates to the Town's Bicycle Transportation Master Plan. The second text amendment amends the text of the Conservation Element. Specifically, it amends Policy 1.2.5 to reference the June 2000 as opposed to the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan." The third text amendment adds two new policies to the Intergovernmental Coordination Element of the Town’s Comprehensive Plan. These policies reference and adopt certain parameters for the Western Corridor Interlocal Agreement, an interlocal agreement between the Town, Palm Beach County and Martin County. The fourth text amendment amends certain tables related to Level of Service and Capacity Standards in the Public School Facilities Element. The fifth change adds Figures 10 and 10a and amends Figures 5, 6 and 7 of the Transportation Map Series. The sixth and final section of the Amendment changes the Future Land Use Map for the Town of Jupiter. Specifically, it redesignates 12.3 acres in Jupiter Community Park from the recreation land use category to the conservation land use category. The Adoption Process On August 13, 2002, the Town's Planning and Zoning Commission, acting as the local planning agency (LPA), held a public hearing and recommended that the Jupiter Town Council approve seven separate comprehensive plan amendments. These amendments consisted of five text amendments, an amendment to the Transportation Map Series (with modifications), and a Future Land Use Map (FLUM) amendment. Petitioner testified that this LPA public hearing was not advertised in advance. The Town's witness, David Kemp, who is the Town's Principal Long Range Planner, did not dispute Petitioner's testimony; instead, he testified that he did not recall whether this LPA public hearing was advertised. There was documentary evidence that, on July 7, 2003, the Town Planner sent an e-mail message to the Town's Clerk informing her that, with regard to Petitioner's request for "proof of publication" of the advertisement for the LPA meeting on August 13, 2002, the Town Planner's staff had reviewed all relevant files and was unable to locate the requested public records. There also was documentary evidence that the Town's Records and Archives Manager notified the Town's Clerk by e- mail on April 29, 2003, that Petitioner had requested a copy of the "proof of publication" of the advertisement for the LPA public hearing on August 13, 2002, and had been informed that no advertisement was necessary since it was a regular meeting of the LPA. The minutes of the LPA's meeting on August 13, 2002, show that the six component parts being considered as part of the proposed Amendment 2002-02 were on the LPA's regular meeting consent agenda. The minutes indicate that two of the components were "pulled" from the consent agenda. The minutes also indicate that no one in attendance at the meeting spoke on the proposed amendments. The minutes do not reflect that the LPA or any of its members invited public participation before a vote was taken on the six components of the proposed amendments. Neither the Town nor DCA introduced evidence of an advertisement for the LPA's meeting on August 13, 2002, notwithstanding their listing of proof of publication of the advertisement as a joint exhibit of the DCA and the Town in their Joint Prehearing Statement, and Petitioner's stipulation to its admissibility. The minutes of the LPA meeting on August 13, 2002, reflect that Petitioner was not present during the consent agenda portion of the meeting. They indicate that she appeared later for the regular agenda portion of the meeting and spoke in favor of a site plan/special exception/PUD application being considered during that portion of the meeting. On Tuesday, September 3, and Tuesday, September 17, 2002, the Jupiter Town Council held public hearings and approved the transmittal of Ordinance 62-02, consisting of all seven of the proposed plan amendments recommended by the LPA, to DCA. The transmittal public hearing was held on a weekday at least seven days after the advertisement for the public hearing, which appeared in the Palm Beach Post, a newspaper of general circulation in the Town, on August 25, 2002. The advertisement included the title of the proposed Ordinance 62- 02, in bold: AN ORDINANCE OF THE TOWN . . . AMENDING ORDINANCE NO. 57-89, THE COMPREHENSIVE PLAN OF THE TOWN . . . ; AMENDING THE TEXT OF THE CONSERVATION, FUTURE LAND USE, INTERGOVERNMENTAL COORDINATION, AND PUBLIC SCHOOL FACILITIES ELEMENTS; AMENDING THE TEXT AND MAP SERIES OF THE TRANSPORTATION ELEMENT; PROVIDING FOR AN AMENDMENT TO THE FUTURE LAND USE ELEMENT TO CHANGE THE LAND USE DESIGNATION OF A 12.3 ACRE PROPERTY LOCATED IN THE NORTHERN PART OF THE TOWN'S COMMUNITY PARK AT 3377 CHURCH STREET FROM A RECREATION DESIGNATION TO A CONSERVATION DESIGNATION; . . . . The advertisement also included a map showing the location of the 12.3-acre property. At the transmittal hearing, the public was invited to comment, and three individuals offered public comments. On September 26, 2002, DCA received the proposed amendments. Although the Town requested that DCA not review the Amendment or issue an Objections, Recommendations, and Comments Report (ORC report), Petitioner requested a review and ORC report, and DCA determined that a review and ORC report were necessary, even if not requested by Petitioner. DCA conducted a review of the proposed amendments for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Florida Administrative Code Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan), and issued an ORC report to the Town of Jupiter on November 27, 2002. The ORC report raised only one objection, specifically to a text amendment that would allow for increased densities in the Coastal High Hazard Area. The Town Council held a public hearing on December 17, 2002, at which six of the seven proposed changes contemplated by the transmitted proposed amendments were adopted. (The Town did not adopt the amendment to which DCA has objected in the ORC report.) This adoption hearing was held on a weekday at least five days after the advertisement for the public hearing appeared in the Palm Beach Post, a newspaper of general circulation in the Town. The advertising appeared on December 10, 2002. The advertisement included, in bold, the same title of the proposed Ordinance 62-02 as the transmittal hearing advertisement, except that reference to the text change to the Future Land Use Element was omitted. The advertisement also included a map showing the location of the 12.3-acre property (as well as other properties affected by other ordinances being advertised at the same time). At the adoption hearing, Petitioner offered written comments. There were no other comments or objections. Petitioner attempted to prove that the Town failed to meet a statutory requirement to provide sign-forms for comprehensive plan amendment hearings. She proved that no sign-in forms were provided for the LPA hearing on August 13, 2002. She did not prove that no sign-in forms were provided for the transmittal hearings in September 2002 or for the adoption hearing in December 2002. On December 23, 2002, DCA received the Town’s adopted Amendment 2002-02 for review. DCA conducted a review of adopted Amendment 2002-02 for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan). Amendment 2002-02 was found to be "in compliance." DCA's witness, Senior Planner, Dr. Joseph Addae- Mensa, testified that DCA's review of an adopted plan amendment includes verification that the local government held the required advertised transmittal and adoption hearings. According to his testimony, this ordinarily is accomplished by a simple review to ascertain that the local government included the usual statement in its submission to DCA to the effect that the required advertised public hearings had been held. In this case, the Town's submission included such a statement, and DCA's review went no further. Town's Public Participation and Advertising Requirements Petitioner asserts that the Town's adoption of Resolution No. 58-87 on December 1, 1987, specified additional or more stringent public participation and notice procedures for the consideration and recommendation of comprehensive plans and amendments by the Town's LPA and for the adoption of such plans by the Town's governing body. However, Section 1 of the Resolution stated: The Town of Jupiter hereby adopts the following procedures [for the LPA and Town Council] to implement . . . [minimum] criteria as established by [DCA] . . . pending the enactment of permanent provisions by Ordinance, provided, however, that any failure by the Town to fully comply with the technical requirements hereof shall not be cause to invalidate the adoption of any Amendments to the Jupiter Comprehensive Plan which otherwise meet the requirements of law . . . . In addition, on March 3, 1998, the Town's new home-rule charter became effective. It provided in Article VI that "procedures for the adoption of ordinances and resolutions for the Town of Jupiter shall be as made and provided by the Florida Statutes, as may be hereafter amended and revised" and that the Town Council "may provide, by appropriate action, requirements for the adoption of ordinances and resolutions which are more stringent than those set forth in the Florida Statutes." There was no evidence of any subsequent "appropriate action" to establish procedures that are "more stringent . . . than those set forth in the Florida Statutes." Resolution 58-87 was neither repealed nor re-enacted after the effective date of the home-rule charter. However, it appears that the home-rule charter should be viewed as repealing or superseding Resolution 58-87. In any event, for purposes of this proceeding, as indicated, Resolution 58-87 did not add any compliance review criteria to the "requirements of law." Data and Analysis for the Conservation Element Petitioner attempted to challenge the text amendment to the Conservation Element of the Town’s Comprehensive Plan. The Amended Petition states: "The restrictions placed on the Loxahatchee River Buffer were hastily prepared, flawed, and dubious in value. It was submitted without valid data and analysis." It was determined at the hearing that Petitioner actually mistakenly was seeking to challenge either a subsequent FLUM amendment considered by the Town Council in July, 2003, or land development regulations that were considered by the Town Council in February, 2003. These are not the changes to the Conservation Element of the Town’s Comprehensive Plan adopted in Amendment 2002-02. The amendment at issue here merely changed a reference from the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan" to the June 2000 plan. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Conservation Element, staff analysis, and a narrative explanation of why this essentially housekeeping item was needed. Petitioner presented no evidence at hearing that this minor change to the Conservation Element was submitted without adequate valid data and analysis. Data and Analysis for the Transportation Element Petitioner challenged the modification of Transportation Map Series figures 5, 6 and 7, and on the basis that they were supported by old data from 1999. DCA did not raise this as an objection in their ORC report. The Florida Department of Transportation ("FDOT") did raise the issue of old data as an objection in its comment letter to DCA dated October 21, 2002. After receipt of the comment letter, however, Town Staff contacted FDOT regarding the objection. Town Staff explained that the Town was completing a transportation study related to the Indiantown Road Corridor and indicated the Town's commitment to incorporating the data and analysis contained in the final transportation study into the Transportation Element in a subsequent round of comprehensive plan amendments. At the final hearing, David Kemp, Principle Long Range Planner for the Town, testified that the Transportation Map Series amendments were to reflect only the possible alignment of a future roadway, that the Town had utilized the most current data based on the interlocal agreement and the alignments shown in the interlocal agreement, and that the Town had resolved the FDOT's concerns regarding the data. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Transportation Element and Map Series, staff analysis which responded to FDOT's objections, and a narrative explanation describing the changes and why they were needed. Petitioner did not prove beyond fair debate that the Transportation Map Series amendment was not supported by data and analysis. Other Substantive Issues Other issues Petitioner may have raised in her challenge to the compliance determination in this case either were dropped or were unfounded, some having been mistakenly directed to Town action other than the Amendment at issue in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order finding the Town's Amendment 2002-02 to be "in compliance." DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2002.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Amended Petition to Establish the Palm Coast Park Community Development District (Amended Petition) dated October 13, 2004. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue Carletta Myers d/b/a Myers’ Nursery filed a complaint with the Florida Department of Agriculture and Consumer Services on October 23, 1996, alleging that Florida Landscape Associates of Palm Harbor, Inc. failed to pay over $5800 for plants purchased between April and August 1996. The issue in this proceeding is whether those monies are owed.
Findings Of Fact Myers’ Nursery (Myers’) is located in Tampa, Florida. It produces agricultural products in the state of Florida. Florida Landscape Associates (Florida Landscape) is a dealer in agricultural products, also located in Tampa, Florida. It purchases plants for its various landscaping projects. For many months prior to April 1996, Myers’ and Florida Landscape had an arrangement in which Florida Landscape, mostly though Anna Borgan, its manager, ordered nursery stock by telephone for pick up later by Florida Landscape’s employees. Upon pick up, the employee generally signed an invoice “received by”. Later, Florida Landscape sent a payment for the products. This arrangement was the same for most of the firms with which Myers’ conducted its business. During 1995, Florida Landscape paid approximately $8,000 for its purchases from Myers’. Florida Landscape continued to order and pick up plants from Myers’ in 1996. However, commencing some time in March 1996, the payments stopped. Between April 1996 and the end of August 1996, Florida Landscape’s unpaid purchases totaled over $6,000. Despite calls and written demands, the invoices remain unpaid. Myers’ filed its complaint with the Florida Department of Agriculture and Consumer Services on October 23, 1996. By that time some of the unpaid invoices were beyond the six-month’s statutory period for recovery under the agricultural bond program administered by the Florida Department of Agricultural and Consumer Services. At the hearing, Myers’ submitted invoices dated from April 24, 1996 through August 23, 1996, reflecting approximately $6,000 of unpaid purchases by Florida Landscape. Without explaining why all of these invoices remain unpaid, Florida Landscape conceded that it owes the money for all but two categories: the invoices that are not signed “received by”, and the invoices that were signed “received by” James (Jim) Derewenko. Throughout the relevant period Jim Derewenko was an employee of Florida Landscape who routinely picked up and signed for nursery stock from Myers’. Sometime around the end of August 1996, Derewenko’s ex-wife told Florida Landscape that he had his own business on the side, in competition with his employer. Anna Borgan and others at Florida Landscape became concerned about Derewenko having diverted to his own customers plants ostensibly ordered by Florida Landscape. According to Anna Borgan, they “just didn’t know” where the plants ended up. On September 10, 1996, Florida Landscape, by John Van Vulpen, its president, sent a letter notifying all of its vendors including Myers’, that, as of August 26, 1996, Jim Derewenko was no longer employed by Florida Landscape and was not authorized to make purchases on behalf of Florida Landscape. The invoices for which Myers’ is claiming payment all precede the letter from Florida Landscape and pre-date Derewenko’s termination on August 26. There is no evidence that Myers’ had any knowledge of Derewenko’s diversion of plants. Most of the invoices for which Myers’ claims payment have been signed by employees of Florida Landscape, including Jim Derewenko. For the invoices with no signature “received by”, it is impossible to determine who picked up the plants. Excluding the unsigned invoices, the total owed by Florida Landscape to Myers’ is $5854.55. This sum includes invoices dated August 21, 1996, and August 23, 1996, included in Petitioner’s exhibit no. 1.
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Brooks of Bonita Springs Community Development District.
