Findings Of Fact In June 1987, petitioner, Karl T. Christiansen, was an examinee on Sections 3, 4 and 5 of the Uniform National Examination for landscape architects. He had previously passed Sections 1 and 2 in the June, 1986 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation, and licensure is granted by respondent, Board of Landscape Architects. The examination in question is a uniform multi-state examination adopted for use in Florida. The questions are prepared by the Council of Landscape Architectural Registration Boards. The same organization also prepares a comprehensive Evaluation Guide for use by graders in scoring the test. All Florida graders must be professional landscape architects with at least five years' experience. In addition, they are given training by the Office of Examination Services before grading the examination. After the examination was completed by the candidates, all examinations, including that of Christiansen, were blind-graded by the graders using the Evaluation Guide as a tool. By notice dated October 23, 1987, petitioner was advised by the Office of Examination Services that he had received the following scores on Sections 3, 4 and 5 of the examination: Design Application 84.4 PASS Design Implementation 70.8 FAIL Florida Section 76.2 PASS On December 14, 1987, petitioner was given an opportunity to meet with Board representatives in Tallahassee and present objections concerning his score on Section 4 of the examination. Because of Christiansen's concerns, the Board regraded his examination a second time and raised his overall score from 70.8 to 72.4. This was still short of the 74.5 needed for passing. After being given the results of the second grading, petitioner requested a formal hearing. At hearing petitioner lodged objections to scores received on twenty- one questions in Subparts A, B and C of Section 4 of the examination. These objections are contained in joint composite exhibit 1 received in evidence. It was Christiansen's position that the graders had used subjective standards in evaluating his solutions, and that they had failed to take a sufficient amount of time to evaluate his answers. In addition, Christiansen contended that the examiners had failed to note a number of correct answers for which he was not given credit. Other than his own testimony, petitioner did not present any other evidence to support his contentions. Indeed, his own witness, a Fort Lauderdale landscape architect with thirty years experience, concluded that the Board was correct in failing Christiansen and that Christiansen had not demonstrated adequate competence on the examination to justify a passing grade. In support of its position, respondent presented an expert, Michael Oliver, a longtime registered landscape architect with three years experience in grading this type of examination. In preparation for the hearing, Oliver reviewed the examination, instruction booklet and grader's Evaluation Guide. He then regraded petitioner's examination and assigned it a score of 73.4, which was a failing grade. In doing so, Oliver assigned higher scores than did the previous two graders to certain questions but lower scores to others, for an overall average of 73.4. Through a detailed analysis, Oliver pointed out the infirmities in each of Christiansen's objections and why an overall failing grade was appropriate. It was demonstrated by a preponderance of evidence that, where petitioner had not received the desired grade, he had misinterpreted the instructions, prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers. Therefore, petitioner's grade should not be changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Board denying petitioner's request to receive a passing grade on section 4 of the June, 1987 landscape architecture examination. DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988.
The Issue The issue is whether the Type B site plan for the 78-unit townhome/condominium project known as Park Terrace Townhomes should be approved.
Findings Of Fact Parties Skipper is the applicant for the Type B site plan at issue in this proceeding, No. TSP060026. Skipper owns the property on which the project will be developed, Parcel ID No. 21-23-20-417-000-0 (the project site). The City is the local government with jurisdiction over the project because the project site is located within the City limits. The Association is a voluntary neighborhood association encompassing 343 lots in an established single-family residential neighborhood generally located to the northeast of the Tharpe Street/Old Bainbridge Road intersection, adjacent to the project site. The purpose of the Association is to “preserve and enhance the quality of life in [the] neighborhoods by taking coordinated action on matters which advance the common good of all residents,” and one of the Association’s objectives is to “protect[] the neighborhood from incompatible land use and rezoning.” The Project Site (1) Generally The project site is located to the north of Tharpe Street, to the east of Old Bainbridge Road, and to the west of Monticello Drive. The project site is bordered on the south by the Old Bainbridge Square shopping center. It is bordered on the north, east, and west by the residential neighborhood represented by the Association. The project site consists of 13.91 acres. The western 11.11 acres of the project site are zoned R-4, Urban Residential. The eastern 2.8 acres of the project site are zoned RP-1, Residential Preservation. The project site is roughly rectangular in shape. It is 300 feet wide (north to south) and approximately 2,100 feet long (east to west). The project site is located within the Urban Service Area (USA) boundary. The Tallahassee-Leon County Comprehensive Plan specifically encourages infill development within the USA. The project site is designated as Mixed Use A on the future land use map in the Comprehensive Plan. Residential development of up to 20 units per acre is allowed within the Mixed Use A land use category. The project site has been zoned R-4/RP-1 since 1997 when it was rezoned from Mixed Use A as part of the City-wide rezoning of all mixed use properties. Multi-family residential was an allowable use under the Mixed Use A zoning district, as was small-scale commercial. The R-4 zoning is intended to function as a “transition” between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. The R-4 zoning district allows a wide range of residential development at a density of up to 10 units per acre. (2) Surrounding Zoning and Uses The property to the north, east, and west of the project site is zoned RP-1, and is developed with single-family residences. The neighborhood adjacent to the project site is stable and well established. Most of the homes are owner- occupied, and many of the residents are retirees. The property to the south of the project site is zoned UP-1, Urban Pedestrian, and is developed with commercial uses, namely the Old Bainbridge Square shopping center. There is an existing stormwater pond located on the northwest portion of the shopping center parcel, adjacent to the southern boundary of the project site. (3) Environmental Features on the Project Site The project site is vacant and undeveloped, except for several concrete flumes and underground pipes located in the drainage easements that run north/south across the site. The project site has been impacted by the surrounding development in that household and yard trash has been found on the site. The vegetative community on the project site is considered to be upland hardwood forest. There are a number of large trees on the project site, including pecan, cherry, pine, gum, and various types of oak trees. There are also various exotic plants species on the site, such as kudzu. The vegetative density is consistent throughout the project site. The land in the general vicinity of the project site slopes from south to north. The elevations along Tharpe Street to the south of the project site are in 220 to 230-foot range, whereas the elevations in the neighborhood to the north of the project site approximately one-quarter of a mile north of Tharpe Street are in the 140 to 160-foot range. The elevations across the R-4 zoned portion of the project site range from a high of 214 feet on the southern boundary to a low of 160 feet on the northern boundary. The southern property boundary is consistently 30 to 40 feet higher than the northern property boundary across the entire R-4 zoned portion of the project site. The slopes are the main environmental feature of significance on the project site. There are a total of 7.32 acres (319,110 square feet) of regulated slopes -- i.e., severe or significant grades -- on the project site, which is more than half of the total acreage of the site. There is a ravine that runs in a northwesterly direction across the RP-1 zoned portion of the project site. The ravine is considered to be an altered wetland area and/or altered watercourse. The regulated slopes and altered wetland/watercourse areas on the project site were depicted on a Natural Features Inventory (NFI) submitted in September 2005, prior to submittal of the site plan. The City’s biologists reviewed the original NFI, and it was approved by the City on October 13, 2005. A revised NFI was submitted in March 2007. The revised NFI removed the man-made slopes from the regulated slope areas, and made other minor changes based upon comments from the staff of the Growth Management Department. The City’s biologists reviewed the revised NFI, and it was approved by the City on August 24, 2007. The Association questioned the change in the amount of regulated slopes identified on the project site, but it did not otherwise contest the accuracy of the NFIs. Roger Wynn, the engineer of record for the project, testified that the amount of regulated slopes on the project site changed because the man-made slopes were initially included in the calculation but were later removed. That testimony was corroborated by the James Lee Thomas, the engineer who coordinated the Growth Management Department’s review of the project. The Project (1) Generally The project consists of 78 townhome/condominium units in 14 two-story buildings. It was stipulated that the density of the project is 7.02 units per acre, which is considered “low density” under the Comprehensive Plan and the LDC. The stipulated density is calculated by dividing the 78 units in the project by the 11.11 acres on the project site in the R-4 zoning district. If the entire acreage of the project site was used in the calculation, the project’s density would be 5.61 units per acre. All of the buildings will be located on the R-4 zoned portion of the project site. Five of the buildings (with 21 units) will have access to Monticello Road to the east by way of Voncile Avenue. The remaining nine buildings (with 57 units) will have access to Old Bainbridge Road to the west by way of Voncile Avenue. There is no vehicular interconnection between the eastern and western portions the project. There is no vehicular access to the project from the north or south. However, pedestrian interconnections are provided to the north and south. The only development on the RP-1 zoned portion of the project site is the extension of Voncile Avenue onto the site. The remainder of the RP-1 zoned property will be placed into a conservation easement. The Voncile Avenue extension will end in a cul-de-sac at the eastern boundary of the R-4 zoned portion of the project site. The extension will be constructed to meet the City’s standards for public roads, and it will comply with the City’s Street Paving and Sidewalk Policy. The other streets shown on the site plan are considered private drives because they are intended to serve only the project. Those streets and the internal cul-de-sacs have been designed to allow for the provision of City services - – e.g., trash, recycling, fire -– but they do not have to meet the City’s Street Paving and Sidewalk Policy. It was stipulated that the project is consistent with the City’s Driveway and Street Connection Regulations, Policies and Procedures. It was stipulated that the project is consistent with the City’s Parking Standards. The City’s Parking Standards Committee approved tandem parking spaces and an increase in the number of parking spaces in the project. It was stipulated that the project is consistent with the City’s concurrency policies and regulations. A preliminary certificate of concurrency was issued for the project on March 9, 2007. It was stipulated that the project is consistent with the City’s requirements for utilities -- e.g., water, sewer, stormwater, electricity, gas, cable -- and infrastructure for those utilities. However, the Association still has concerns regarding various aspects of the project’s stormwater management system. See Part D(3), below. (2) Site Plan Application and Review On August 4, 2005, the City issued Land Use Compliance Certificate (LUCC) No. TCC060219, which determined that 94 multi-family residential units could be developed on the R-4 zoned portion of the project site. The LUCC noted that the RP-1 zoned portion of the project site “is not eligible for multi-family development,” and that the “[a]ttainment of the full 94 units on the R-4 zoned property may be limited by the presence of regulated environmental features that will be determined via an approved Natural Features Analysis [sic].” On March 10, 2006, Skipper submitted a Type B site plan application for the project. The initial site plan included 82 multi-family units in 13 buildings; an extension of Heather Lane onto the project site to provide vehicular access to the north; vehicular access to the west by way of Voncile Avenue; and no vehicular access to the east. The Tallahassee-Leon County Planning Department (Planning Department) and other City departments expressed concerns about the initial site plan in memoranda prepared in advance of the April 10, 2006, DRC meeting at which the site plan was to be considered. A number of neighboring property owners submitted letters to the DRC and other City departments detailing their concerns about the project. A number of neighboring property owners also sent “petitions” to Skipper urging him to reduce the density of the project and to construct single-family detached units rather than multi-family units. The DRC “continued” -- i.e., deferred consideration of -- the site plan at its April 10, 2006, meeting as a result of the concerns expressed by the City departments. The site plan was also “continued” by the DRC at each of its next 10 meetings. Skipper submitted a revised site plan in February 2007 that reduced the number of units in the project from 82 to 78; eliminated the extension of Heather Lane onto the project site; added the connection to Voncile Avenue on the east; and made other changes recommended by City staff. It is not unusual for a site plan to be revised during the DRC review process. Indeed, Mr. Wynn testified that it is “very uncommon” for the initial version of the site plan to be approved by the DRC and that the approved site plan is typically an “evolution” of the initial site plan. That testimony was corroborated by the testimony of Dwight Arnold, the City’s land use and environmental services administrator. The City departments that reviewed the revised site plan -- growth management, planning, public works, and utilities -- each recommended approval of the site plan with conditions. A total of 21 conditions were recommended, many of which were standard conditions imposed on all site plans. The DRC unanimously approved the site plan with the 21 conditions recommended by the City departments at its meeting on March 26, 2007. The DRC was aware of the neighborhood’s objections to the project at the time it approved the site plan. Mr. Arnold, testified that the Growth Management Department was “extraordinarily careful” in its review of the site plan as a result of the neighborhood’s concerns. The site plan received into evidence as Joint Exhibit J13 is an updated version of the revised site plan submitted in February 2007. It incorporates all of the DRC conditions that can be shown on the site plan. For example, the updated site plan shows the “stub-out” at the southern property boundary and the pedestrian interconnections requested by the Planning Department as well as the appropriately designated handicapped parking spaces requested by the Public Works Department. The site plan review process typically takes six months, but Mr. Arnold testified that the process can take longer depending upon the number of issues that need to be addressed. Mr. Arnold testified that there is nothing unusual about the one-year period in this case between the submittal of the site plan and its approval by the DRC. Issues Raised by the Association The primary issues raised by the Association in opposition to the project are the alleged incompatibility of the proposed multi-family development with the surrounding single- family neighborhood; concerns about increased traffic in and around the neighborhood; concerns relating to the design of the project’s stormwater management system and the potential for stormwater run-off from the project to cause flooding in the neighborhood; and the alleged inadequate protection of the environmentally sensitive features on the project site. The public comment presented at the final hearing generally focused on these same issues, but concerns were also raised regarding the potential for increased crime and decreased property values in the neighborhood if college-aged students move into the proposed multi-family units on the project site. Compatibility Protecting the integrity of existing residential neighborhoods from incompatible development is a specifically emphasized “growth management strategy” in the Land Use Element of the Comprehensive Plan. Policy 2.1.1 [L] of the Comprehensive Plan promotes the protection of “existing residential areas from encroachment of incompatible uses that are destructive to the character and integrity of the residential environment.” Paragraph (c) of Policy 2.1.1 [L] requires the adoption of land development regulations to limit future higher density residential development adjoining low density residential areas. Such limitations “are to result in effective visual and sound buffering (either through vegetative buffering or other design techniques) between the higher density residential uses and the low density residential uses; [and] are to discourage vehicular traffic to and from higher density residential uses on low density residential streets.” These Comprehensive Plan provisions are implemented through the buffering requirements in LDC Section 10-177, which requires landscaping and fencing to be installed between potentially incompatible land uses. The width of the buffer and the amount of the landscaping required vary depending upon the proposed and existing land uses. The multi-family development proposed in the project at 7.02 units per acres is not inherently incompatible with the existing single-family neighborhood surrounding the project site. Indeed, as noted above, both uses are considered low density under the LDC and the Comprehensive Plan. Multi-family residential development on the project site furthers the intent of the R-4 zoning district in that it provides for a “transition” between the commercial uses in the Old Bainbridge Square shopping center to the south of the project site and the single-family residential neighborhood to the north of the project site. The Planning Department expressed concerns about the initial site plan’s compatibility with the surrounding neighborhood in its March 24, 2006, memorandum to the DRC. The memorandum recommended that the project be redesigned -- with a lower density and/or clustered single-family lots or townhomes - - in an effort to make it more compatible with the surrounding neighborhood. The Planning Department does not have the authority to require a project to be redesigned; it can only recommend that the developer consider alternative designs. The Planning Department does not have compatibility concerns with the revised site plan. Indeed, Mary Jean Yarbrough, a senior planner with 10 years of experience with the Planning Department, testified that “the site plan has changed significantly from the first submittal” and that it now “meet[s] the compatibility requirements of the comprehensive plan.” Similarly, Wade Pitt, an expert in local land use planning, testified that the project meets the compatibility requirements in the Comprehensive Plan and the LDC. Mr. Pitt also testified the project furthers the intent of the R-4 zoning district by providing a transition between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. Some of the changes in the site plan mentioned by Ms. Yarbrough that led to the Planning Department no longer having compatibility concerns with the project were the elimination of the Heather Lane interconnection; the reduction in the number of units in the project; the reduction in the size of the eastern stormwater pond; the inclusion of buffers in the project; and the elimination of the road through the project, which allowed for more extensive conservation areas in the central portion of the project site. A Type D buffer is required where, as here, the existing use is single-family and the proposed use is multi- family. The width of a Type D buffer can range from 30 to 100 feet, but the wider the buffer, the less landscaping that is required. The site plan includes a 30-foot wide buffer along the project site's northern and western property lines, as well as along the eastern border of the R-4 zoning district on the project site.1 The 30-foot Type D buffer is required to contain at least 12 canopy trees, six understory trees, and 36 shrubs for every 100 linear feet of buffer. The northern boundary of the R-4 zoned portion of the project site is approximately 1,600 feet long, which means that there will be approximately 864 plants -- 192 canopy trees, 96 understory trees, and 576 shrubs -- in the buffer between the proposed multi-family units and the neighborhood to the north of the project site. The Association contends that a 60-foot Type D buffer should have been required. However, Ms. Yarbrough persuasively testified that the 60-foot buffer actually provides less buffering because it is not required to be as densely vegetated as the 30-foot buffer provided on the site plan. Portions of the buffer shown on the site plan overlap the designated conservation areas that will be subject to the conservation easement on the project site. Mr. Arnold testified that it is not uncommon for buffers to overlap conservation areas. The conservation areas will be disturbed in those areas where the trees and shrubs are planted to comply with the landscaping requirements for the buffer. An eight-foot high fence will be constructed along the northern and western property lines. The site plan shows the fence several feet inside the property line, within the designated conservation areas. However, Mr. Arnold and City biologist Rodney Cassidy testified that the fence will have to be placed outside of the conservation areas along the property lines. LDC Section 10-177(f)(5) does not impact the placement of the fence on the property line as the Association argues in its PRO. That code section requires planting materials to be located on the outside of the fence “[w]hen residential uses buffer against other uses.” Here, the residential uses on the project are not being buffered against “other uses”; they are being buffered against the same type of use, residential. None of the six buildings on the northern side of the project site directly abut the buffer. Only one of the buildings is closer than 40 feet from the northern property line, and three of the buildings are as much as 80 feet from the northern property line. The only development actually abutting the 30-foot buffer is the retaining walls for the stormwater management ponds. The walls will be covered with vines to minimize their aesthetic impact on the adjacent properties. It is not necessary that the trees and shrubs in the buffer reach maturity before a certificate of occupancy is issued; all that is required is that the appropriate type and number of trees and shrubs are planted. The project is adequately buffered from the existing single-family residences to the north and west of the project site. The buffer requirements in the LDC have been met. In addition to the landscaped buffer and fence, impacts of the project on the surrounding neighborhood have been mitigated by the placement of parking on the interior of the site and by the elimination of the Heather Road interconnection that was in the initial site plan, which would have directed more traffic from the project onto the neighborhood streets. In sum, the more persuasive evidence establishes that the project is not inherently incompatible with the surrounding single-family uses and that its impacts on the surrounding neighborhood have been mitigated as required by the LDC. Thus, there is no basis to deny the site plan based upon the incompatibility concerns raised by the Association. Traffic Concerns There is currently considerable traffic on Old Bainbridge Road, particularly during rush hour. This makes it difficult for residents of the neighborhood north of the project site to turn left onto Old Bainbridge Road from Joyner Drive. The amount of traffic on Old Bainbridge Road is in no way unique. There are many streets in the City that have similar amounts of traffic, particularly during rush hour. Vehicles leaving the project will utilize Voncile Avenue, Joyner Drive, and Monticello Drive to access Old Bainbridge Road or Tharpe Street. Those streets are considered collector roads, not local streets. The number of vehicles expected to utilize the local streets in the neighborhood to the north of the project site will not be significant from a traffic engineering perspective. The initial version of the site plan showed Heather Lane being extended onto the project site and connected with a street running through the project. This interconnection, which is no longer part of the site plan, would have increased the amount of traffic on the surrounding neighborhood streets because Heather Lane runs through the middle of the neighborhood to the north of the project site. There are expected to be less than 50 trips entering the eastern portion of the project during the afternoon peak hour, and less than 20 trips entering the western portion of the project during the afternoon peak hour. The exiting trips during the afternoon peak hour are expected to be about half those amounts. The number of trips generated by the project fall below the one percent or 100 trip threshold in the City’s concurrency regulations. A preliminary certificate of concurrency, No. TCM060026, was issued for the project on March 9, 2007, indicating that there will be adequate capacity of roads (and other infrastructure) to serve the project. No credible evidence to the contrary was presented. LDC Section 10-247.11 requires properties in the R-4 zoning district to have vehicular access to collector or arterial streets if the density is greater than eight units per acre. Where, as here, the density of the project is less than eight units per acre, vehicular access to local streets is permitted. In any event, as noted above, access to the project site is by way of Voncile Avenue, which is considered a collector road. In sum, there is no basis to deny the site plan based upon traffic concerns because the project satisfies the City’s traffic concurrency requirements. Stormwater Management/Flooding Concerns Currently, stormwater run-off from the project site flows uncontrolled across the site, down the slope towards the neighborhood to the north that is represented by the Association. The neighborhood had severe flooding problems in the past. The City resolved those problems by reconfiguring the stormwater management system and constructing several stormwater ponds in the neighborhood. The Association is concerned that the stormwater run- off from the project will cause flooding in the neighborhood. The Association also has concerns regarding the design of the stormwater ponds and their proximity to the neighborhood. The project site is located in the upper reaches of a closed basin. As a result, the project’s stormwater management system is subject to the additional volume control standards in LDC Section 5-86(e), which requires the volume of post- development stormwater run-off from the site to be no greater than pre-development run-off. The project’s stormwater management system provides volume control, rate control, and water quality treatment. The system complies with all of the design standards in LDC Section 5-86, including the additional closed basin standards in paragraph (e) of that section. The project will retain all post-development stormwater run-off on site by capturing it and routing it to two stormwater ponds located in the north central portion of the project site. Stormwater run-off will be captured by roof collectors on the buildings and inlets on the streets and then routed to the stormwater ponds through underground pipes. The two stormwater ponds are designed with retaining walls on their north/downhill sides. The walls will have a spread footing, which was a design change recommended by Mr. Thomas to improve the functioning of the ponds. The walls will be eight to nine feet at their highest point, which is less than the 15-foot maximum allowed by LDC Section 5-86(f)(7), and they will be covered with vegetation as required by that section. Access to the stormwater ponds for maintenance is provided by way of the 20-foot wide “pond access” easements shown on the site plan for each pond. These easements meet the requirements of LDC Section 5-86(g)(2). The stormwater ponds are roughly rectangular in shape, rather than curvilinear. The shape of the ponds is a function of the retaining walls that are required because of the sloping project site. The stormwater ponds have been visually integrated into the overall landscape design for the site “to the greatest extent possible” as required by LDC Section 5-86(f)(10). The south side of the ponds will be contoured with landscaping, and the walls around the ponds will be covered with vegetation. The final design of the stormwater ponds and the retaining walls is evaluated during the permitting phase, not during site plan review. The walls must be designed and certified by a professional engineer, and the construction plans submitted during the permitting phase will include a detailed analysis of the soil types on the site to determine the suitability of the walls and to ensure the proper functioning of the ponds. The project’s stormwater management system will also collect and control the overflow stormwater run-off from the existing stormwater pond on the Old Bainbridge Square shopping center site. That run-off currently overflows out of an existing catch basin on the eastern portion of the project site and flows uncontrolled across the project site, down the slope at a rate of 6.7 cubic feet per second (CFS). After the project is developed, that run-off will flow out of a redesigned catch basin at a rate of 0.5 CFS, down the slope through a conservation area, to a graded depression area or “sump” on the northern property line, and ultimately to the existing stormwater management system along Heather Lane. Mr. Arnold and Mr. Cassidy testified that the reduced flow down the slope will benefit the conservation area by reducing erosion on the slope. Mr. Cassidy further testified that he was not concerned with the flow through the conservation easement forming a gully or erosion feature or otherwise altering the vegetation in that area, and that potential impacts could be addressed in a management plan for the conservation area, if necessary. The stormwater ponds and other aspects of the project’s stormwater management system will be privately owned and maintained. However, the operation and maintenance of the system will be subject to a permit from the City, which must be renewed every three years after an inspection. The City can impose special conditions on the permit if deemed necessary to ensure the proper maintenance and function of the system. The more persuasive evidence establishes that the project’s stormwater management system meets all of the applicable requirements in the LDC. On this issue, the testimony of Mr. Thomas and Mr. Wynn was more persuasive than the stormwater-related testimony presented on behalf of the Association by Don Merkel. Mr. Merkel, a former engineer, “eyeballed” the project site and the proposed stormwater management system; he did not perform a detailed analysis or any calculations to support his criticisms of the project’s stormwater management system. In sum, there is no basis to deny the site plan based upon the stormwater management/flooding concerns raised by the Association. Protection of Environmental Features on the Project Site The NFI is required to depict all of the regulated environmental features on the site, including the regulated slopes. The revised NFI approved by the City in August 2007 accurately depicts the environmentally sensitive features on the project site. The environmental features regulated by the City include “severe grades,” which are slopes with grades exceeding 20 percent, and “significant grades,” which are slopes with 10 to 20 percent grades. The project site contains 5.74 acres (250,275 square feet) of “significant grades” and 1.58 acres (68,835 square feet) of “severe grades.” Those figures do not include man-made slopes in the existing drainage easements across the site, which are not subject to regulation. There are 0.76 acres (33,056 square feet) of severe grades on the R-4 portion of the project site that are regulated as significant grades because of their size and location. Thus, there are a total of 6.50 acres (283,331 square feet) of slopes regulated as significant grades on the project site. LDC Section 5-81(a)(1)d. provides that 100 percent of severe grades must be protected and placed in a conservation easement, except for severe grades that are less than one- quarter of an acre in size and located within an area of significant grades that are regulated as significant grades. LDC Section 5-81(a)(2)d. provides that a minimum of 50 percent of significant grades must be left undisturbed and placed in a conservation easement. LDC Section 5-81(a)(2)d.1. provides that the significant grades to be protected are those areas “that provide the greatest environmental benefit as determined by the director [of growth management] (i.e., provides downhill buffers, protects forested areas, buffers other protected conservation or preservation areas, or provides other similar environmental benefits).” The Environmental Impact Analysis (EIA) included with the site plan shows that 100 percent of the severe slopes that are regulated as such are protected and will be placed in a conservation easement. The EIA shows that a total of 3.05 acres (133,002 square feet) of the significant grades on the project site will be impacted. That figure is 46.9 percent of the total significant grades on the project site, which means that 53.1 percent of the significant grades will be undisturbed and placed into a conservation easement. It is not entirely clear what environmental benefit is provided by some of the smaller conservation areas shown on the site plan, such as those between several of the buildings, but Mr. Cassidy testified that he took the criteria quoted above into consideration in determining that the site plan meets the applicable code requirements and is “approvable." Moreover, Mr. Arnold testified that similar “small pockets” of conservation areas are located in other areas of the City and that fencing or other appropriate measures can be taken to ensure that the areas are not disturbed. The EIA will be approved simultaneously with, and as part of the site plan. The conservation easement is not required during site plan review. Rather, LDC Section 5-81(b) requires the easement to be recorded no later than 30 days after commencement of site work authorized by an environmental permit. LDC Section 5-81(a)(2)d.1. provides that development activity in the area subject to the conservation easement is prohibited, except for “vegetation management activities that enhance the vegetation and are specifically allowed in a vegetation management plan approved by the director [of growth management].” LDC Section 5-81(b) provides that a management plan for the area subject to a conservation easement “may be approved provided the activity does not interfere with the ecological functioning of the conservation or preservation area and the activities are limited to designs that minimize impacts to the vegetative cover.” That section further provides that the management plan is to be approved “during the [EIA].” Mr. Cassidy testified that an approved management plan is required in order to plant trees in a conservation area. He further testified that impacts related to the construction of the buffer fence could be addressed in the management plan, if necessary. No management plan has been prepared or approved for the project even though there will be planting in the conservation areas that overlap the 30-foot Type D buffer. In sum, more persuasive evidence establishes that the regulated environmentally sensitive features on the project site are accurately depicted in the NFI; that the required amounts of regulated slopes are protected on the site plan; and that, subject to approval of a management plan for the plantings in the buffer as part of the EIA, the project complies with the requirements of the LDC relating to the protection of environmentally sensitive features. Other Issues The final hearing was properly noticed, both to the parties and the general public. Notice of the final hearing was published in the Tallahassee Democrat on September 9, 2007. An opportunity for public comment was provided at the final hearing, and 16 neighboring property owners spoke in opposition to the project. A number of the concerns raised by the Association and the neighboring property owners who spoke at the hearing are permitting or construction issues, not site plan issues. For example, issues related to the engineering specifications for the stormwater pond retaining walls and issues related to the protection of the conservation areas from construction impacts will be addressed and monitored as the project moves through the permitting process. Mr. Arnold testified that Association and neighboring property owners are free to provide input and express concerns on those issues to the appropriate City departments as the project moves through permitting and construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Planning Commission approve the Type B site plan for the Park Terrace Townhomes project, subject to the 21 conditions recommended by the DRC and additional conditions requiring: the eight-foot high buffer fence to be located on the property lines, outside of the designated conservation areas; and a management plan to be approved for the conservation areas that will be disturbed through the plantings required in the Type D buffer. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 7th day of November, 2007.
The Issue The sole issue in this cause is whether the Petitioner should have received a passing grade on the design and site planning portion of the National Architectural Examination, which he took in June, 1982. Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Daniel T. Canavan, is an applicant for licensure by examination to practice architecture in Florida. The architectural examination in Florida is administered in two parts: a written examination given in December of each year, and the design and site planning examination given in June of each year. Canavan met all requirements for admittance to the licensure examination. Canavan took the design and site planning portion of the National Architectural Examination in June, 1982. This examination consisted of various design and site problems to be resolved in drawings to be completed within 12 hours. The examination is administered by the Office of Examination Services of the Department of Professional Regulation. The examination is prepared and supplied to the Office of Examination Services by the National Council of Architectural Registration Boards (NCARB). The design and site planning portion of the examination for June of 1982 required the design of a small airport terminal by the applicant to include drawings of the structure on the site, exterior elevations, interior floor plans and cross-sections of the building interior. Canavan, together with the other applicants, was supplied information and a preexamination booklet setting forth generally the architectural program to be accomplished and the various requirements which the applicants would be expected to sketch. At the time of the examination, other information was supplied to the applicants to enable them to more adequately design the structure requested and meet the necessary architectural requirements. The examination of the Petitioner, together with the examinations of the applicants from some 20 states using the NCARB standardized examination, were graded at one time by graders of the NCARB. Each state participating in the examination process provides at least two qualified architects to function as graders. These graders are given specific training by NCARB to standardize their grading approach to the examination. The examinations of all the applicants are divided among the various graders on a blind grading basis in such a manner that the grader has no knowledge of the name or state of origin of the applicant whose examination he is grading. Graders look at the applicant's overall plan to determine whether the applicant has met or failed to meet the requirements. The grader makes notations of specific areas of weakness based upon the grading criteria and based upon the overall conception of the applicant's submission. Each examination is graded by a minimum of two graders, who grade the examination independently. If the examination receives a failing grade from each of the independent graders, it is graded by a third grader. The Petitioner's examination was graded in accordance with the above process and received a failing grade, indicating that it was graded by three independent graders. The Petitioner was notified of his failure to pass the examination and given notice of his right to a formal hearing. Jeff Hoxie, who was one of the graders on the June 1982 examination and who is an experienced architect licensed in the State of Florida, reviewed the Petitioner's examination in the manner that it would have been assessed by the graders, explaining the process generally and explaining the specific deficiencies which he noted. He used the original grader's comments regarding the deficiencies noted as a point of departure to explain his assessment of the Petitioner's examination. The Petitioner failed to follow specific examination requirements as to the required sizes of specific floor areas, failed to follow building code requirements in his design of the kitchen and restaurant, and failed to properly draw the sketch required of the structural and mechanical elements of the building. While there were other areas of weakness noted, Mr. Hoxie stated that the major failures listed above would justify a failing grade. Petitioner's testimony revealed that he had made a mistake in sketching one plan, and that, because of this mistake and the corrections which Petitioner made, he ran out of time, which resulted in the specific failings noted by the three graders at the national level and confirmed by Mr. Hoxie.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board of Architecture of the State of Florida fail the Petitioner, Daniel T. Canavan, on the design and site planning portion of the National Architectural Examination taken by Canavan in June, 1982. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983. COPIES FURNISHED: Mr. Daniel T. Canavan 814 Avenida Hermosa West Palm Beach, Florida 33405 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert Coons, Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues for determination in this proceeding are whether DER properly asserts jurisdiction over the site in question, and whether Petitioner (Vatalaro) is entitled to a permit to fill that site.
Findings Of Fact Sometime in 1986, Billie Vatalaro purchased approximately eleven acres within an approximately 20-acre wetland contiguous to Lake Rouse in east Orange County, Florida. Approximately five acres of the Vatalaro parcel are in the lake itself. In June 1987, personnel from Orange County's planning department and environmental protection department visited the site in response to reports of illegal filling. Correspondence ensued, and meetings were held among Mrs. Vatalaro and her sons and the staff from Orange County. In the meantime, some activity on the site continued, including clearing of trees and vegetation and sometime in January 1988, Mrs. Vatalaro obtained from the Orange County building department building permits and septic tank permits for two houses on approximately 1/2 acre of the property. In early February 1988, the Orange County Environmental Protection Department requested the involvement of DER. Jurisdiction Pamela Thomas is an environmental specialist with DER in the Orlando office. She first visited the site on February 8, 1988, with DER's enforcement officer, a staff person from Orange County, Mrs. Vatalaro, and Mrs. Vatalaro's sons, Russ and Ron Vatalaro. She performed a jurisdictional determination on the occasion of that visit, and returned for subsequent visits on July 20, 1988 and February 22, 1989. Jurisdictional determinations were made pursuant to Rule 17-4.022 F.A.C. (Since renumbered as 17-3.022). This required locating the water body of the state, Lake Rouse, and a determination of whether there is a connection of the water body to the adjacent wetlands. The vegetation is then examined to determine whether canopy, sub-canopy or ground cover will be analyzed. Within the rule are two tests, one used when submerged species predominate, the other used when the wetland vegetation is more transitional. Ms. Thomas located Lake Rouse and found no berms or other barriers between the lake and the wetlands. She also performed transects, visually sampling segments of the area and determined there was continuity between the lake and landward to the site in question. She found a full mature canopy in the uncleared area and loblolly bay, a submerged species, dominated. This area, between the lake and cleared site met the first ("A") test in Rule 17-4.022, F.A.C. The submerged plus transitional species were greater than 50 percent of the vegetation, the submerged species was greater than 10 percent and exceeded the upland species present. Because a portion of the area had been cleared, it was necessary to attempt to reconstruct what vegetation had existed prior to clearing. The cleared area included tall spindly pine trees spaced to indicate that other trees had been growing between them. The pine trees which did not have fill next to them were sitting on hummocks, a common phenomena in wetlands. Within the disturbed area Ms. Thomas found two bore holes where previous soil borings had been done. She and the DER enforcement officer determined by examining those holes that substantial fill had been placed in the cleared area. Root mat was more than ten inches below the surface and water was standing in the bottom of the holes. In order to reconstruct what vegetation had been present in the cleared area, Ms. Thomas completed a series of three feet by ten feet visual transects fanning out into the thicket from the cleared area. The dominant species were Ioblolly bay (gordonia), sweet bay and dahoon, all submerged species. It was apparent that the predominance of trees that had been removed were submerged species, mainly Ioblolly bays. As reconstructed, the biomass in a transect would have been greater than the sum of the biomass of the pine trees. This reconstruction was further validated on subsequent visits to the site when juvenile loblolly bay trees were found seeded and thriving in the disturbed area, but no pine seedlings were found, even though there was adequate time for that to occur. DER staff also viewed aerial photographs provided by the Valataros, taken in 1984, prior to major clearing and in 1987, after the clearing. The photographs are on a scale of 1 to 300 and do not indicate a drastic change in the area that would reflect that the cleared area had been mostly pine trees. The photographs are not of such quality that a conclusive determination can be made on them alone. David Kriz is an area resource soil scientist with the U. S. Department of Agriculture Soil Conservation Service. He visited the site with representatives of DER and Mrs. Vatalaro on July 20, 1988, at the request of DER. He performed three soil borings, the first in an area of bay trees outside the area cleared for the house. This boring revealed Samsula muck, a hydric soil, indicative of being saturated or flooded. The second boring was taken within the area designated for the house pad. This yielded about fifteen inches of fill, then St. Johns soil, an organic sandy layer, which can be hydric if inundated for more than thirty days in a year. It was impossible to determine whether this specimen was hydric, because this surface had been disturbed and filled. The third boring was taken just off the pad, but still in the cleared area. It yielded about nine inches of sandy fill and Samsula muck below, similar to the first boring, and clearly a hydric soil. St. Johns fine sand also appears on the site in a USDA soil conservation map of Orange County. The map is a good guide, but cannot be relied upon without ground tests in specific sites as the scale on the map is 1 to 20,000. Although distinct soil zones are indicated, in fact there are transitional areas between soil types in the zones, which means that in a transitional zone there may be either wet or dry areas. It would be virtually impossible to determine the soil type prevalent in Mrs. Vatalaro's cleared half acre, without the borings. DER properly concluded that it has jurisdiction over the site. Petitioner's expert, William Dennis, concedes that most of the Vatalaro property is within DER's jurisdiction, including a substantial portion of the cleared area, most notably the 43 by 100 foot cleared finger extending south from the cleared area designated for the house. In performing his jurisdictional analysis, Dr. Dennis concentrated on the cleared area. He did not complete transects. He counted and measured trees, and with the aid of a compass, sited them on a chart, received in evidence as Petitioner's exhibit #13. Within the cleared area he found a predominance of pines, and upland species (71%) and some submerged and transitional species (4.8% and 24.2%, respectively). This, he concluded, failed the jurisdictional test described in paragraph 7, above. Dr. Dennis also examined the aerial photographs and determined there was a vegetation break extending approximately 30 feet into the thicket from the northwest corner of the cleared area. He counted and measured trees in that area and found 14.8% submerged species, 35.4% transitional species, and 49.8% upland species. That area failed the jurisdictional "A" test because the submerged species did not outnumber the upland species present. Extrapolating from this finding, he concluded that the upper part of the cleared area designated for placement of the house, is outside of DER's jurisdiction. This conclusion is unreliable. The aerial photographs, particularly the pre-clearance photographs from 1984, are not crisp and clear. It is also possible that in looking at an aerial photograph, the tallest trees, the pines, would overshadow the other species which are also four inches or greater in diameter breast height (DBH) and are, therefore, equally significant. Rule 17.4.022(1)(c), F.A.C. provides that belt transects be used when the line demarcating the landward extent of waters of the state cannot be determined visually or by photo interpretation. DER, but not Mr. Dennis, relied on belt transects. Rule 17.4.022(I)(d), F.A.C. provides that other methods may be used as long as the department and applicant both agree in writing, to the method used. DER did not agree with Dr. Dennis' method. Counting trees in an area that has been disturbed is not a reliable means of establishing what existed prior to clearance when substantial evidence suggests that the clearing left the pines but eliminated the predominant submerged and transitional species. Section 403.8171(5), F.S. provides a "back-stop" to the vegetative jurisdictional determination by providing that "...in no case shall [the landward extent of the waters of the state] extend above the elevation of the 1- in-10-year recurring flood event or the area of the land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward." The petition in this proceeding raised the issue of the jurisdictional backstop but the application and evidence at a hearing fails to include sufficient information to substantiate that this alternative applies. Generally, a study would be required, and the applicant has not provided such. The Merits of the Application The wetland contiguous to Lake Rouse, within which the Vatalaro property is located, comprises approximately 20 acres. It is the only mature forested wetland of its quality within a large region of east Orange County. This wetland provides a filtration function contributing to the water quality of Lake Rouse and to the waters of the region. The Lake Rouse wetland also provides flood abatement capacity via its soil and plants. The effects of the loss of this capacity in other severely impacted wetlands along the State Road 50 corridor have become evident. The altered areas are no longer able to provide water holding capacities. Wildlife which are residents of the area and which use the area as a stopover will be impacted by alteration of the habitat which they currently rely upon for food, cover, nesting and resting. Examples of those wildlife are ducks and other birds, raccoons, deer and opossums. Even though the proposed project will comprise only 1/2 to 3/4 an acre of the wetland, the impact is significant considering the unique quality of the wetland. Dr. Dennis agrees that alteration of the site would change the habitat value of the area and would impact the functions of the wetlands. He argues, however, that the effects of this project are minimal compared to the development which has already occurred in surrounding areas. Although the applicant has a building and septic tank permit and a Corps of Engineers permit, the regulations for those permits are not the same as the balancing criteria which DER must consider. The Orange County Planning and Environmental Protection Departments recommend denial of the project. No evidence was presented with regard to mitigation proposed or agreed to by the applicant.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered denying the application for fill permit. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1989. COPIES FURNISHED: Michael D. Jones, Esquire 996 Westwood Square Suite 4 Oviedo, Florida 32765 Vivian F. Garfein, Esquire Department of Environmental Regulation Twin Towers Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration herein is whether the Petitioner was properly graded on the UNE examination for certification in the field of landscape architecture given in Florida in June, 1989.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Thomas W. Hoddinott, was a candidate for examination and licensure as a landscape architect in the state of Florida. The Board of Landscape Architects, is the state agency responsible for the licensure and regulation of the profession of landscape architecture in Florida. Petitioner took the Florida landscape architecture examination administered in June, 1989. When the examination scores were announced, it was determined that of the five sections involved, on all of which a minimum score of 75 was required to pass, Petitioner earned a passing score of 75 on Section 6, the "Florida Section", but failed the other four sections. He received a score of 65 on Section 1, "Professional Practice"; 65.9 on Section 3, "Design application"; 61.1 on Section 4, "Design Implementation"; and 60.5 on Section 5, "Grading and Drainage." Petitioner requested a reevaluation of his scores and by amended grade notification dated January 22, 1990, was advised his score of 75 on Section 6 had been raised to 76.2, but his failing grades on the other four sections had not been changed. Thereafter, Petitioner filed a Petition for formal hearing herein claiming that in the case of Sections 3 and 4, both dealing with design, he should have been awarded extra credit sufficient to change his grade from fail to pass. At hearing, Petitioner announced his challenge would be limited to the two major designs called for in questions 3A and 3B, and there would be no challenge to Section 4. The grading procedure for the landscape architecture examination, a national examination, (Uniform National Examination - UNE), is composed of five sections on which multiple choice questions and drawings are required. For a specific performance area, that in which the candidate is required to complete the design of a specific project consistent with the particulars outlined in the problem, an evaluation guide outlines the problem concerning which the examination is being given, and sets out the criteria by which the candidates solution is to be evaluated. The standards applied are national standards and candidates are held to the same elements nationwide. These standards are set by master graders from each state who meet collegiately to set the pertinent standards. Section 3 of the June 9, 1989 examination was a multiple choice test accompanied by two required drawings, 3A and 3B. The candidate was required, in order to achieve a successful passing grade, to pass all three parts. The scores on each of the three parts are added together and must total a raw score of 94 (adjusted to 75) in order to pass. Mr. Oliver was the master grader on the June, 1989 examination and was given the required standardization training for that duty. He also attended a training session for question 3A in Georgia as a master grader. Whereas question 3B is graded only by Florida graders, the other portion could be graded by either Florida or Georgia graders. During the grading process, the examiners were split into two groups headed by a master grader. They were then standardized as to how to grade the examination and what to look for. They were also advised of the permissible tolerances to be applied and other like factors. When the examinations were graded, they were forwarded to the Department. If any challenges were received, the challenged question was sent to another master grader who, with only Florida examiners, regraded the examination sheets and reevaluated the challenges. The original grading on the June, 1989 examination was done in Savannah, Georgia, immediately after the examination by examiners from Florida and Georgia together. Each examination was graded by several graders and the graders were asked to grade the same area twice in an effort to insure reliability and consistency among the grades. All candidates are offered an opportunity to come to Tallahassee to write their objections to questions on which they failed to receive a passing score, and those questions were regraded in light of the objections. In the instant case, as it relates to question 3A, examiners found a strong correlation between Petitioner's original score and the score on regrade. Though there were two differences in the sub-scores awarded, the score remained the same. As to question 3B, as a result of the regrading, Petitioner was awarded 1 additional point. With regard to Question 3A, Petitioner disputes the score he was awarded concerning certain sections of that question. The instructions and problem statement reads: The Department of Transportation of a large city) (population 500,000), is planning a new five mile parkway in a 180 foot right-of-way with occasional parcels designated parkway plazas. The prime consultant, a large transportation planning firm, has engaged you to do the site design for a series of parkway plazas along the right-of-way. This problem is one of these plazas. You are to prepare a site analysis that identifies the influence of existing off- site and on-site conditions on the site plan; a concept diagram and concept statement that illustrate the functional relationships and site organizations of the required program elements; and a site plan that identifies and renders the program elements and design features. After the instructions were outlined, a site description was provided; objectives for the project were outlined, both in general and specifically; and specific program elements and design features were outlined which were to be included in the plan designed by the candidate. The evaluation guide for this question listed 16 separate areas, many of which were broken down into sub- elements. For each of the 16 major areas, points were awarded based on the number of the sub-elements included and accepted in the candidate's solution. For example, area question 1 dealt with site inventory and analysis factors, and included the site inventory elements were such factors as: -Heavy traffic on the Century City Parkway -Bus routes on the parkway -Noise from the parkway -Residential neighborhoods on the northwest and east of the park -Existing park -Continuation of the bike path through the plaza -Bike lanes on Country Club Road -Major intersection -Site visibility-triangle location noted -Bus pull-off -Opposite-side bus pull-off -Railroad switching yard and/or 8' screen wall noted -Existing tree planting -Seasonal or prevailing wind, harsh or mitigating winds -Temperature ranges -Topography -Soils -Views -Utility corridor -Drainage -Other relevant site inventory elements (count each) These factors were to be considered in light of their use of the program elements and design features which define those particular characteristics which must be included in the candidate's individual design. The program elements were described as, for example: Pedestrian Sitting Area: This part of the site should be at least 8,000 square feet of paved area. It should offer a good view of all plaza activity, the sculpture and the parkway traffic. Seating arrangement should encourage communication and socializing. The design features for this particular program element were: 64 LF of benches with backs 100 SF of seat wall or slab benches Some of the trees in grated pavement cuts At least 50% of the area is to be specialty paving Bollards for traffic separation Other program elements in this problem included Bike Node; Bus Stops: Crosswalks; Urban Sculpture; Sound Attenuation Wall; Linkage to the Existing Park; and Planting. Each of these program elements also have design feature criteria related which were to be considered and utilized by the candidate in his or her design. The degree of successful compliance with the stated program elements and the design features determined the number of points awarded for the candidate's solution. For example, with regard to the elements described in paragraph 7, supra, if the candidate complied with fewer than 10 elements, he or she was awarded 0 points; for 10 elements noted, 1 point; for 12 elements noted, 2 points; for 14 elements noted, 3 points; for 16 or more elements noted, 4 Points. Petitioner received a score of 0- on his answer to question 3A. He claims this was inappropriate because the pedestrian sitting area of 8,000 square feet is found on the answer sheet as is the bike node. The bus stop called for is identified as a bus node; required crosswalks are indicated; the urban sculpture is identified and sited; and the required linkage is provided by the crosswalks through the bike node. The sound attenuation wall is, admittedly, not identified. Petitioner admits he did not treat the issue of planting there because he did not think it was included, but based on his analysis of his answer, he believes he included 7 of the 9 required sub- elements, which, he feels, should give him three points. According to Mr. Oliver, a self-employed landscape architect who is also an adjunct professor in the graduate program of landscape architecture at Florida International University and a master grader for the Board of Landscape Architects, the award of 0 points to Petitioner here was appropriate because, while Petitioner may have put some of his elements in box A, the test required that this area be demonstrated in box B. Under the terms of the examination, the elements had to be shown as labeled and "proportionately sized" within an approximately 10% margin. While the 8,000 square feet of pedestrian seating area were indicated, Petitioner was not given credit for the bike node because its size exceeded the 10% allowance. The bus node also was more than 10% bigger than that which was called for, and it was not properly labeled, being called a "node" instead of a "stop." The crosswalks were not labeled as such, and the snack shop was not connected to the existing park. Petitioner was given no credit for planting, but was given credit for including the urban sculpture. Taken together, Petitioner received credit for only two of the required sub- elements, and since his total approval was less than 10, he was awarded a score of 0. This appears to be appropriate. Examinations such as the one in issue here are designed to test minimum competence under the fairest conditions. Examination criteria, as defined in the program elements, are the only factors considered. In the instant case, the concept diagram portion should be precise as to sizes, since sizes deal with proportion and, therefore, have to be approximately in proportion. For example, a 2,500 square foot unit cannot be shown on the plan the same size as an 8,000 square foot unit. Petitioner claims that the size of the diagram provided to him limited labeling and proportions with clarity and readability. The important thing is, in his estimation, that the diagram and plan be readable by the client, and this could not be done if actual proportions were used. In this contention, Petitioner is correct, but, according to Mr. Oliver, the Board recognizes this and permits the candidate to draw the unit out of proportion if it is labeled as being proportioned, and the candidate's notes reflect that. This, Petitioner did not do. With regard to the question of linkage, Mr. Oliver admits the question is poorly worded on this examination, but claims it should be taken as meaning linkage to the existing park to the north. Since there is an ambiguity here, and that ambiguity could well have created a problem for the Petitioner, he should get credit for that particular sub-element. Even including that, however, his score for this question would be three elements rather than two, which is still below ten, and would not justify an award of more than 0 points. Turning to factor 7, Petitioner claims that the bus stop, bike node, and pedestrian seating area are shown on Section C, (site plan), and all are separate but related. He feels the overall design shows a repetition of trees in back and in front, which helps to unify the site with the previously existing trees, and ties the site together. His design shows the urban sculpture and the sound attenuation wall is softened by the use of planting. The snack shop, he claims, is linked, as required, and the crosswalks are shown by the use of specialty pavers. He also provides for pedestrian safety by the use of a pedestrian waiting area in the median. His use of an open grassed area to the north of the park indicates his effort to create open space as a positive extra design feature. In this factor, the possible scores range from 0 for no elements considered to a 5 for five elements considered. Here, Petitioner was awarded a 4 for recognizing four elements, and he claims he should have been awarded a 5 since, in his estimation, he considered five elements. The question calls for consideration of seven elements. Petitioner was originally given credit for elements 1, 3, 4, and 5, but in the opinion of Mr. Oliver, he should not get credit for number 2, overall design, since there is no repeated size and shape and no sense of order to the environment. As to element 6, though the crosswalks are shown, safety is lacking. The crosswalk on the parkway goes to an island and then continues, and this is not good. Also, the East-West crosswalk is concurrent with the bike path. The design criteria for this problem called for safety of handicapped, and joint use creates a safety problem for this category of person. The bikes should be kept separate from the pedestrians. With regard to element 7, additional design features, none were included by the Petitioner. He did not add any additional features such as signs or lighting. Had he done so, he would have gotten credit, but open space, which Petitioner claims as an additional feature, is not considered significant. Taken together, the award of 4 appears appropriate. With regard to that factor described as "ordered and unified environment", this is a judgement call appropriately left to examiners with experience to make, even in the light of the minimum competence criterion. Open space, which Petitioner claims as an additional factor meriting extra credit, may enhance a design if it is, in fact, a design intent and not merely a left over. It appears here that the Petitioner had area left over, but since, in the opinion of Mr. Oliver, another grader might consider this open space as an additional factor, Petitioner should be given the benefit of the doubt and awarded credit. Therefore, he should receive one additional point, resulting in a score of 5 for this factor. Petitioner's design of factor 8, dealing with the bike node resulted in an award of 4 points, nine elements considered. He claims that the drinking fountain as called for in the third element was provided. It is located in the center area, however, rather than at the bike shop. His rationale was that it would be duplicative to provide a drinking fountain at the shop when water was already available there. He also claims that with regard to element 8, 64 linear feet of bench was provided and is located near the snack shop. In his opinion, this exceeds the amount required. Mr. Oliver, on the other hand, claims Petitioner's design solution was unusual. The program statement clearly defines the required elements, and number 2 is a bike node "to include a drinking fountain." Petitioner has provided two bike areas. The linkage to the snack shop also calls for a drinking fountain. Therefore, when Petitioner put his fountain at the small bike node rather than at the larger bike node in conjunction with the drench shower and other items, he did not conform to the dictates of the program statement. Had he put a second fountain in, providing one at each place, he would have gotten full credit. With regard to the benches with backs, the program element clearly shows benches with backs should be in the major park area and the ones utilized by the Petitioner are not properly labeled. Consequently, he should get no additional credit. It is so found. Factor 10 deals with the functional relationships and operational considerations of the pedestrian sitting area and the sculpture location. Petitioner contests the failure to give him credit for the third of the elements involved, dealing with 100 square feet of seat wall or slab bench. He contends that his design provides the required seating by providing a terraced wall. The benches are labeled, and the wall provides the back, he claims. Here, he was given credit for four elements and was awarded 2 points. If he were to get credit for the additional element contested, his score would be raised to 3 points. Mr. Oliver, however, disagrees with Petitioner's position, and claims Petitioner has a label which says "seat wall benches" but his design shows no way of differentiating between the 64 linear feet of backed benches and the 100 square feet of slab wall bench. Therefore, according to Oliver, Petitioner can get credit for one, but not both. Petitioner did not give definitives for the size of the benches. Though the linear measurement is provided, the depth is not and it is, therefore, impossible to arrive at a square foot figure so as to determine whether Petitioner's design meets the requirements. Petitioner disagrees, differentiating between "benches" and "seat wall benches." The former, he claims, when scaled, shows 64 linear feet. The latter, when scaled, would appear to provide more than the required 100 square feet, but, according to Mr. Oliver, "benches" are depicted on only two sides of two planters which measures out to 40 linear feet, and, in addition, these "benches" do not show, "with back." The additional area near the sculpture, while looking like a bench is not so labeled, and the examination grade cannot be based on supposition. The candidate must label his item or put a notation on his drawing which defines the nature of the various elements. Here, therefore, it is clear that Petitioner's depiction is not sufficient to justify additional credit beyond that which was awarded. Factor 11 deals with environmental factors. On grading, Petitioner was awarded 1 point for four elements considered. He was denied credit for elements 1, 2, 3, 5, 6, 7, and 9. He asserts that his plan calls for 50% of the plaza to be shaded by canopy trees; he utilized mass tree planting but tried to keep the sculpture open to view; he used various plant materials in the form of annuals to direct attention toward the sculpture and around the snack shop; and used the same, plus a repetition of tree grates in the plaza to direct movement. He claims also that with regard to the wind, the wall will block it, and the use of the wall is enhanced by the use of a repetition of trees to block off the cold wind while nonetheless opening the area to the cooling summer breezes. Mr. Oliver disputes Petitioner's claim as to shade, indicating that it is not shown on Petitioner's depiction. The eastern and southern parts of the paved area are open to the sun, though the western part is covered. The sculpture would be more attractive, he feels, with a backdrop, and Petitioner's use of trees does not serve as such a device. The plant materials serve to break up the paved area in only two places, and this does not serve to separate the uses of that area. Petitioner appears to have no plan to show that the trees are used to define spaces, nor do they appear, as utilized by Petitioner, to direct movement. The sculpture does this, but it is not a plant. With regard to winds, in Florida, southern and southeast winds predominate. Petitioner has plants in the southwest quadrant but not in the southeast where the intersection is. The annual plants utilized by Petitioner are both colorful and fragrant. Petitioner described them only as annuals, but the program statement calls for annuals plus colorful and fragrant planting. Here Petitioner received credit for annuals but cannot receive double credit for their use when fragrant and colorful are also required. Petitioner has not shown this rationale to be improper. Turning to question 3B, dealing with planting around an apartment complex, on Factor 2, Petitioner was given credit for five considerations which awards 2 points. He initially contested six considerations of those remaining, but at hearing conceded the Board's grading was right in two of those, leaving a total of four in dispute. Here, there is a requirement for the candidate to landscape a residential site on which fifteen two bedroom townhouses will be grouped. Factors for consideration include common parking and open space and a need for outdoor living areas, and the candidate is advised that the developer wants to have the site functionally and attractively planted considering environmental and cultural/visual programs. Factor 2 deals with cultural/visual considerations and sub factor 2 requires screening of parking lots from one of the adjoining streets. Here, Petitioner has installed a line of oak trees which, he contends, provides an ample screen, but overlooks the fact that branches beginning 6 to 8 feet above ground are not going to provide much screening at ground level. Entrance planning at the intersecting street makes, he asserts, a pleasing announcement. The dumpster, he claims, is appropriately screened by plants all around, and the hard lines of buildings, he believes, are softened by the use of shrubbery and plant material. According to Mr. Oliver, however, there appears to be, notwithstanding Petitioner's claim, no appropriate entrance planting, - only oak and viburnum, and he believes Petitioner should have copied the entrance to the parking lot which has a more attractive mixture of plants. As accomplished by Petitioner, there is no "announcement" as called for by the examination standards. With regard to the dumpster, eight viburnum bushes on three sides is insufficiently described. No size is shown though a screening from visual as well as odor contamination is called for. These plants will not screen from view from second floor windows, notwithstanding Petitioner's claim that the plants may get as tall as 30 feet. The building corners need to be screened and not left as merely the joinder of two flat walls. While Petitioner appears to have appropriately softened some walls, he has not done so on all of the buildings. His solution insufficiently addresses the problem. Concerning factor 6, which deals with plant selections and locations, Petitioner was given 1 point for 1 condition met, but was given no credit for the remaining three conditions. The first of these deals with form and textural contrasts of plants to visually soften hard lines at the building entrance. According to Petitioner, the oak and the viburnum create such a contrast. Viburnum is large and the use of crepe myrtle, a medium texture plant, is noted, while the contrast of the textures is promoted by the use of coarse oaks. Not only does the texture of the plants contrast, Petitioner claims, but the colors contrast as well. He also contends that with regard to the spatial reinforcement of sitting areas with planting, his proposal creates shade for these sitting areas with a canopy over head, and it also allows one sitting area exposure to full sun. He claims that his proposed planting will unify the site in that the live oaks, which he uses to encompass the site, are uniform. He also proposes the use of other trees and repeated the use of some entrance materials in the courtyard. Mr. Oliver, on the other hand, claims that the western and northern buildings are devoid of any planting on at least one side. The front planting also appear to be in pockets and isolated, and there is no planting on the sides. One sitting area has no planting materials at all. If this is done on purpose, the examiner has no way to know that. Accepting Petitioner's premise, however, Mr. Oliver noted there are plants which would allow sun but still provide color and design. He further asserts that, with regard to unification, there is some repetition, but the north and east sections of the site are not addressed at all, and no planting is proposed in those areas whatever. The examination requires that the total site be addressed, not just a portion thereof. While the terms used in landscape architecture are subject to interpretation, there are certain basics which are not. These include consistency and uniformity. There may be differences in approach to a problem, such as the softening or the reinforcing of a line, or the de-emphasis of a vertical line, but the basic problems are, nonetheless, subject to specific definition. If, as Petitioner claims, he intended to leave the north and east sides of the buildings in question 3B open for a favorable view, and assuming there are no windows on the northern portion of the eastern buildings and the eastern portion of the northern buildings, Mr. Oliver points out that Petitioner should have noted this on his plan which makes no mention of the intent of the candidate. Since the candidate's intent cannot be determined by other than what appears on the examination paper, here there was clearly a failure of communication which redounded to the Petitioner's detriment. Assuming that Petitioner were to be given credit for the several additional points referenced herein, he would still not have sufficient points to constitute a passing grade. As graded, Petitioner is approximately 15 points below a passing grade, and based on the analyses of the questions challenged, there is no indication that, even taken in the most liberal context, Petitioner's answers justify the award of more than 1 additional point.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Thomas W. Hoddinott, be awarded one additional point for his answer to question 3 on the June, 1989 landscape architect examination, but that his challenge to the other points in issue be dismissed. RECOMMENDED this 27th day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1990. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Keith F. Roberts, Esquire Kinsey & Roberts 240 Plant Avenue, Suite B-308 Tampa, Florida 33606 Patricia Ard Executive Director Board of Landscape Architects 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner, John Binkley, has applied for licensure by examination to practice architecture in the State of Florida. The Architectural Licensure Examination administered by the Respondent consists of two portions, the written examination given in December of each year and the site planning and design portion administered in June of each year. Petitioner has complied with all requirements for admittance to the subject examination. The Petitioner sat for a twelve hour examination consisting of a drafting or sketching problem concerning which he was required to design a particular type of building to be accommodated to a particular site, taking into consideration numerous criteria such as human traffic flow, parking, access to both floors, heating and cooling, including passive solar heating, prevailing climate conditions and numerous other aesthetic, engineering and legal requirements. The examination is administered by the Office of Examination Services of the Department of Professional Regulation and is supplied to the State of Florida as well as to all other jurisdictions in the United States by the National Council of Architectural Registration Boards (NCARB) . Pursuant to the authority delineated below, this examination has been adopted for use by Florida applicants for licensure. The examination itself is so constituted as to require the applicant for licensure, the Petitioner, to design a structure for placement on a particular site, including mandatory requirements for accommodating the structure to the site, and vice versa, detailed design of elevations, building cross-sections, facades, and floor plans, effective use of natural light and solar heating potential, regard for the physical and aesthetic needs of the building's occupants, impact on the environment of the site aid its locality and numerous other criteria. Prior to sitting for the examination, each applicant, including the Petitioner, receives a pre-examination booklet setting forth the architectural program to be accomplished by the applicant and various requirements to which the Petitioner was expected to apply himself in order to receive a passing grade. Immediately prior to commencing the examination itself the Petitioner received other information designed to enable him to more adequately design the structure requested and perform the necessary technical and architectural requirements of the problem. In general, the examination was designed to require the Petitioner to design a solution to the site plan and building design problem submitted to him by the NCARB. The pertinent portion of the examination thus allows the examination graders, and through them, the Florida Board of Architecture, to determine whether an applicant such as the Petitioner is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements in order to resolve the design and site plan problem after having been tested on these same requirements in written form in the initial portion of the examination administered in December of each year. The grading of the site and design portion of the examination was accomplished by submission of the Petitioner's work product to at least three architects selected by the various architectural registration boards of some twenty states. These graders are given training by the NCARB in order to standardize their conceptions of minimal competence required for achievement of a satisfactory grade on the examination. Each architect grader is then asked to review and score various solutions to this site and design problem submitted by applicants, including the Petitioner, on a blind grading basis. The grader has no knowledge of the name or state of origin of the applicant whose solution he is grading. The grader is instructed to take into consideration the various criteria set forth in Rule 21B-14.03, Florida Administrative Code, and the evaluation criteria set forth in the grading sheet (Respondent's Exhibit C). The graders are instructed to note areas of strength and of weakness in an applicant's solution with regard to the grading criteria and then determine, based upon an overall conception of the solution submitted by the applicant, whether or not a passing grade is warranted. A passing grade is defined as a holistic grade of 3 or 4 as set forth in Rule 21B-14.04, Florida Administrative Code. The applicant must receive at least two passing grades from the three architect graders who independently grade his solution to the problem in order to pass the relevant portion of the exam. The Petitioner herein received two failing grades and one passing grade. The Petitioner demonstrated an effort to comply with the instructions set forth in the examination, as well as the pre-examination booklet. He failed however, to achieve sufficient clarity of presentation in several material areas such that the graders could make a clear determination that he understood and had complied with sufficient of the mandatory criteria to achieve passage of the examination. The testimony of Arnold Butt, Chairman of the Department of Architecture at the University of Florida, and architect Robert Yarbro, both graders of the Petitioner's examination, establishes that the Petitioner failed to supply sufficient information to permit a passing score to be awarded based upon the criteria required to be considered and complied with by the authority cited below. The Petitioner's examination was deficient in a number of material respects. He failed to make adequate provision for exits from the second floor of his structure. Indeed one grader, with a serious consideration to the consequences of a fire in the structure indicated that this single deficiency, standing alone, would justify a failing grade. Further, the lack of a second stairway from the second floor failed to meet the extent building code requirements. The Petitioner also failed to so orient the building on the construction site that adequate provision for prevailing temperatures and solar angles in the area could be accomplished for the purpose of conserving energy. The site in question, which was the identical site all applicants for the exam were required to consider and respond to, is located in the central United States (Indiana) where the prevailing concern for energy conservation is for heating in the winter season as opposed to cooling in the summer. A substantially greater number of days each year require heating of a structure in this locality instead of cooling. The Petitioner, however, oriented the building in such a way as to maximize cooling in the summer, but which would minimize solar heating, which is the reverse of the proper practice for that locality and the practice required in the instructions to the examination. The Petitioner's Exhibit One shows solar angles for that locality of the earth by latitude and is used by the Petitioner in an attempt to justify his placing of the great majority of the window area on the northern portion of the building, and indeed the Petitioner testified that this was done because that portion of the building received no direct sunlight. This testimony bears out the fact that, even at the hearing, the Petitioner apparently did not understand that in this locale and climate, use of solar energy for heating the building was the primary and relevant consideration rather than the avoidance of solar energy's detrimental effect on cooling of the building. The Petitioner further failed to make adequate provision for parking, especially with regard to the turning radius of vehicles and their ability to make ingress and egress from the parking spaces he designed, two of which were shown to be entirely unusable. Additionally, the Petitioner had an excessive grade within the parking lot and a 25 percent grade on the exit from the parking lot which was shown to be extremely excessive in view of prevailing winter weather conditions involving snow and ice and consequent safety hazards to persons and vehicles using the site. In his solution to the portion of the problem involving accommodating the site to the proposed structure, the Petitioner accomplished leveling the site by packing fill dirt around the southern border which resulted in an unfeasible gradient in the southern parking lot, and more importantly, the Petitioner used wooden railroad crossties to buttress and support a vertical six foot embankment of filled earth behind which would be placed a large volume of fill in violation of sound architectural principles. Professor Butt established that this would be an extremely dangerous condition in light of the drainage conditions that would prevail on the southern portion of the building site and that should such a six foot embankment be required as a result of such filling, that the minimum support should be a structural steel bulkhead or wall. Further deficiencies were described by the graders who were expert witnesses in addition to the deficiencies upon which the failing grade was based. The testimony of the witnesses that the failure to include the required second exit from the second floor was sufficient to justify a failing grade standing alone was not refuted by the Petitioner and his only justification for that deficiency in the design was that he felt occupants of the second floor, in case of fire, could make their escape by climbing out windows on to the roof of the first story of the building. Further, the Petitioner acknowledged that the grade of approach into or out of the parking area consisting of a four foot pitch in six horizontal feet is an excessive gradient and merely opined that there were only twelve hours to resolve the design problem and that in an actual project such as this that kind of problem would be ironed out later in the construction stage. That contention, however, does not constitute justification for departure from the requirements and instructions of the examination in this regard. Finally, witness Butt established that the Petitioner's failure to give due regard to one of the major design criteria, adjustment of the building to the construction site, engendered some of the other deficiencies resulting in the failing grade, especially the resulting significant problem involving the excessive grade in the parking lot and the resulting excessive and dangerous fill and retaining wall on the southern portion of the site. In view of the above-determined deficiencies, the Petitioner did not establish that his solution to the site and design problem posed by the examination reflects sufficient and appropriate consideration of the requirements and criteria he was instructed to address.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings of the parties, it is RECOMMENDED that the failing grade conferred on the Petitioner on the June, 1980 site and design portion of the Architectural Examination be upheld and that the Petition be denied. DONE AND ENTERED this 10th day of April, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1981. COPIES FURNISHED: John F. Binkley 1937 Millbrook Terrace Port St. Lucie, Florida 33452 John Rimes, Esquire Assistant Attorney General Counsel for the Board of Architecture Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
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 Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 May, 2004.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether AHG Hotels, LLC's application for a Type B site plan and deviation should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background On September 11, 2002, the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site review application authorizing the construction of a Hampton Inn & Suites by Respondent, AHG Hotels, LLC (AHG). The DRC also granted AHG's request for a deviation from development standards contained in Section 10.6RR of the City's Zoning Code by allowing AHG to exceed the four-story height limitation and to add a fifth floor to the structure. Two other deviation requests by AHG were determined to be either inapplicable or exempt from Zoning Code requirements because of vesting, and thus they are not at issue here. On October 10, 2002, Petitioner, Capital City Hotels, Inc. (Petitioner), which owns and operates a Hilton Garden Inn near the proposed construction, timely filed a Petition for Formal Proceedings to contest the approval of the deviation request. On October 15, 2002, a determination of standing as to Petitioner was issued by the Tallahassee-Leon County Planning Commission (Commission), which will issue a final order in this matter. As stipulated by the parties at hearing, the only issue is whether AHG failed to satisfy three of the seven criteria that must be met in order for the DRC to grant a deviation. Those disputed criteria are found in paragraphs (iii)-(v) of Section 23.3 of the City's Code of Ordinances (Code) and provide as follows: The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure; and The strict application of the requirements of this chapter will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed; and There are exceptional topographic, soil, or other environmental conditions unique to the property; The parties agree that all other criteria for the site plan and deviation have been satisfied by AHG. In addition, a related request by AHG for a technical amendment to the boundaries of the parcel will be granted by the DRC, assuming that AHG obtains a favorable ruling in this case. History of the Property The property which is the subject of this case is identified as lot of record 454 and fronts on the west side of Lonnbladh Road, lies south of Raymond Diehl Road and several hundred feet east of Thomasville Road, and is just southeast of the major intersection of Interstate 10 and Thomasville Road in Tallahassee. The zoning for the property is Commercial Parkway (CP), a mixed-use zoning district which applies to areas exhibiting an existing development pattern of office, general commercial, community facilities, and intensive automotive commercial development abutting urban area arterial roadways with high traffic volumes. Among the numerous permitted uses in that land use category are hotels and motels. The property is part of a 7.1-acre site originally owned by Kingswood Land Partners, Ltd. (Kingswood). In January 1990, Kingswood obtained from the City a minor subdivision approval, dividing the 7.1 acres into three lots of record, including lot of record 454. The three lots consisted of a 2.44-acre lot running along most of the western portion of the property with the exception of a small area on the southern end, a 1.68-acre lot on the northeast portion of the property, and a 2.98-acre lot on the southeast portion of the property (lot of record 454). In November 1990, Kingswood received from the City a verification of vested status (vested rights certificate) for the 7.1-acre site. The vested rights certificate provided that the 7.1-acre site was exempt from the consistency and concurrency provisions of the Tallahassee-Leon County Comprehensive Plan (Plan) and was vested for an 89,887 gross square foot commercial non-medical office building and a 135- unit hotel/motel. In 1991, Kingswood utilized the vesting for a 135- unit, five-story hotel and constructed what is now known as the Cabot Lodge on the 2.44-acre lot. It also constructed on part of the southeastern 2.98-acre lot a paved area with parking places. In 1992, Kingswood conveyed to Twin Action Hotels, Inc. (Twin Action) the 2.44-acre lot which included the Cabot Lodge Hotel, but not the paved parking area on the 2.98-acre lot. The same year, Kingswood also conveyed to New Horizons Unlimited, Ltd. (New Horizons) the remaining two lots, which two lots were vested for a commercial non-medical office six- story building of 89,887 gross square feet. At the time of the conveyances of the New Horizons property and the Cabot Lodge property to New Horizons and Twin Action, respectively, these parties entered into a Grants of Reciprocal Easements dated June 23, 1992, recorded in Official Records Book 1570, at page 1072 of the Public Records of Leon County, Florida. Around 1994, the Florida Department of Transportation acquired .333 acres of the northernmost lot owned by New Horizons for a project which included realigning and four-laning Raymond Diehl Road and relocating the eastbound entrance ramp to Interstate 10, immediately in front of the Cabot Lodge lot. This acquisition reduced the New Horizons 1.68-acre lot to 1.347 acres. On October 14, 1998, the City approved a vested rights transfer request submitted by New Horizons, which provided that the New Horizons property could be used for a 107-room, four-story business hotel and 59,162 gross square feet of commercial non-medical offices, instead of the vested 89,887 gross square feet of commercial non-medical offices. Since the acquisition by New Horizons of the two remaining lots, that property has remained vacant and unimproved with the exception of the westernmost portion immediately south of the Cabot Lodge building, on which is located pavement and parking spaces. The parking spaces are not legally available to Cabot Lodge for use. The property located immediately west of the Cabot Lodge 2.44-acre lot is property which is referred to as the Thomasville Road Executive Park (Executive Park) property. On an undisclosed date, this property was divided into three separate lots by a minor subdivision approval consisting of Parcel A on which was constructed the Unisys Building and parking spaces, Parcel B which is now improved with a Hilton Garden Inn owed by Petitioner, and Parcel C which remains undeveloped. In 1996, Petitioner filed its site plan application to develop Parcel B. Included in the site plan application was a request for a technical amendment to adjust the boundary lines between Parcels A and B of the Executive Park property. Like AHG has done here, Petitioner also requested a deviation to the then height limitation of 45 feet, requesting that the City allow it to build the building 50 feet high, rather than the required 45 feet. Although the property on which the Hilton Garden Inn is now located was vested for a three-story commercial office building, subject to CP zoning, the City agreed that the vesting could also be used for a hotel use consisting of four stories rather than three stories. The City granted Petitioner's request to allow it to build a four-story hotel on Parcel B. It also granted Petitioner a height deviation so that the midpoint or peak of the roof would be not higher than 50 feet. However, the top of the roof is 59 feet, 6 inches. The facility has 99 rooms. No objection was made by Cabot Lodge, Unisys, or New Horizons to Petitioner's application for approval of its site plan, the technical amendment adjustment to boundary parcels, the use of the property for a four-story hotel instead of a three-story office building, or the granting of a height deviation. In April 2002, AHG entered into a contract with New Horizons for the purchase of 2.23 acres of the southeastern property owned by New Horizons for approximately $1.5 million. The 2.23 acres is part of the 2.98-acre lot of record known as lot 454. The application On July 5, 2002, AHG filed with the DRC its site plan application to construct a 122-room, five-story hotel on the 2.98-acre lot. On the same day, it filed a Deviation from Development Standard Request asking that it be allowed to construct a five-story hotel on the parcel rather than being limited to a four-story hotel, as required by the development standards for the CP zoning district in which the property is located. New Horizons has also requested a technical amendment to the boundaries of the 1.68-acre lot and the 2.98- acre lot that would result in the 2.98-acre lot on which the hotel will be built being reduced to 2.23 acres. The DRC intends to approve that request, assuming that AHG prevails in this proceeding. AHG's site plan uses the largest footprint for construction of the hotel building that is allowed under current applicable Code restrictions relating to the amount of impervious surface allowed to be constructed on a 2.23-acre lot, as well as the required amount of green space which must be maintained. If current zoning rules and regulations are strictly applied, AHG would be unable to have more than approximately 107 rooms in the hotel, utilizing the maximum footprint and only four stories on the 2.23 acres. The only way to accommodate the construction of 122 rooms is to obtain a deviation from the current restriction of four floors and allow a fifth floor to be built. The proposed height of construction of the five- story hotel will be 53 feet, 10 inches, except for several small areas of parapet walls which will be no higher than 58 feet, 4 inches. The subject site is relatively flat, with no excessive slopes, and it has no remarkable features from an environmental standpoint. It is unique in the sense that it is flat, barren land. It does not have wetlands, pristine water bodies, or other protected conditions. Also, it has no endangered plant species requiring special protection, no patriarch trees, no protected trees, and no native forests. Should the Deviation be Approved? A deviation under Section 23.3 is an amendment to a "set requirement" in the Code, such as a setback or height restriction. Between 60 and 75 percent of all applications filed with the DRC for a site plan approval are accompanied by a request for a deviation from a development standard, which are standards prescribed for each zoning district in the Code. One such development standard for the CP District is a four- story height limitation on structures found in Section 10.6RR of the Zoning Code. The DRC is a four-person committee comprised of representatives from the City's Utility Department, Public Works Department, Growth Management Department, and Planning Department; it is charged with the responsibility of deciding whether to grant or deny a deviation request. For at least the last six years, and probably much longer, the DRC has consistently applied and interpreted the deviation standards in Section 23.3 in the same manner. Although Section 23.3 provides that "the granting of deviations from the development standards in this chapter is not favored," they are not discouraged since more than half of all applicants cannot meet development standards due to site characteristics or other factors. Rather, the intent of the provision is to prevent wholesale deviations being submitted, project after project. Requests for a deviation are always approved, when justified, in order to give both the City and the applicant more flexibility in the development process. Here, AHG's application was treated the same as any other applicant. This case represents the first occasion that an approval of a deviation has been appealed. After an application for a deviation is filed, it is forwarded to all appropriate City departments as well as members of the DRC. Each reviewing agency is requested to provide information to the DRC members on whether or not the request should be recommended for approval. In this case, no adverse comments or recommendations were made by any City Department. After reviewing the Department comments, and the justification submitted by AHG, the DRC approved the deviation. Under Section 5.1 of the Code, the City's land use administrator, Mr. Pitts, has the specific responsibility to interpret all zoning and development approval regulations, including Section 23.3, which provides the criteria for granting a deviation. That provision has an apparent inconsistency between the first two sentences: the first sentence includes a phrase that all criteria set forth thereafter must be met to approve a deviation while the second sentence appears to provide that only the conditions necessary to granting a particular deviation must be met. In resolving this apparent inconsistency, Mr. Pitts does not construe the Section as requiring that all seven criteria must be met in every case. Instead, even though all criteria are reviewed by the DRC, only those that are applicable must be satisfied. If this were not true, the DRC "would grant very few deviations as part of [its] site plan or subdivision regulation [process]," and the intent of the Section would be undermined. For example, in order to justify a deviation, the DRC does not require that an applicant show that there are exceptional topographical soil features if, as here, there are no exceptional environmental features on the property. This interpretation has been consistently followed over the years, is a reasonable and logical construction of the language, and is hereby accepted. As a part of its application, AHG submitted a narrative justifying the granting of a deviation under each of the seven criteria. To satisfy the first disputed criterion, AHG indicated in its application that "[t]his deviation is the minimum allowed to make reasonable use of the property and to compete with adjacent hotels who enjoy the same height opportunity." AHG's use of the property is consistent with adjoining developments, including the neighboring Cabot Lodge, which is five stories high and has 135 rooms, and the Hilton Garden Inn, which was originally vested for an office building, but was allowed by the DRC to construct a four-story hotel. There is no other property available to AHG at this site on which to construct a hotel. The evidence shows that New Horizons initially offered to sell AHG only 2.05 acres; when AHG advised that anything less than 2.23 acres would render the project financially unfeasible, New Horizons "very reluctantly" agreed to sell an additional .18 acres. Because New Horizons intends to build a restaurant on its remaining 2.097 acres, any further reduction in the acreage would reduce its highest and best use of the property. Thus, AHG does not have the option of purchasing more property to expand its hotel laterally, as Petitioner suggests, rather than by adding a fifth floor. In addition, AHG does not have the ability to reduce the size of its hotel rooms in order to squeeze more rooms out of a four-story structure. This is because Hampton Inn (the franchisor) will not grant a franchise for a new hotel unless the franchisee agrees to build a hotel with prototypical room sizes. The present design of the hotel meets the minimum size required. There is no evidence that there is any other minimum deviation that could be granted which would make possible the use of the property for construction of 122 rooms under the standards set forth by Hampton Inn, the franchisor. Thus, the only practical adjustment that can be made is to obtain a height deviation. Accordingly, the criterion has been satisfied. To satisfy the second disputed criterion, AHG stated in its narrative that "[t]he strict application of this requirement would place this property and proposed hotel at a competitive disadvantage by a lower number of available rooms." Through testimony of an AHG principal, it was established that in order for AHG to make reasonable use of its property, the addition of a fifth floor is necessary. The evidence shows that as a general rule, a developer can only afford to pay approximately $10,000.00 per room for land cost. In this case, based on the 2.23 acres, at a purchase price of $1,500,000.00 and a hotel with 122 rooms, the projected land cost is $12,000.00 per room. This is the maximum that can be paid for land and still make AHG's project economically feasible. The strict application of the Zoning Code will make the project financially unfeasible, which will create a substantial hardship to AHG. The hardship is not self-created or imposed. At hearing, Petitioner's representative contended that "there are some companies who would find it financially feasible" to construct a four-story hotel with fewer rooms on the same site. However, the more persuasive evidence on this issue was presented by the AHG principal and shows the contrary to be true. The evidence further shows that the granting of the deviation will result in an almost equal efficiency factor of the total square footage of building versus the total square footage of the site when comparing AHG's proposed project to the neighboring Cabot Lodge. On the other hand, strict application of the Zoning Code could result in a substantially less and disproportionate efficiency factor of AHG's property as compared to the adjoining Cabot Lodge. This is because the highest point of the proposed Hampton Inn and Suites is 58 feet, 6 inches, with the majority of the hotel being 51 feet high. The adjoining five-story, 135-room Cabot Lodge has its highest point at 55 feet, 6 inches, with the majority of the building at 46 feet high. The Hilton Garden Inn has the highest roof with its maximum height at 59 feet, 6 inches, which runs across the entire peak of the roofline. 40. To satisfy the final disputed criterion, AHG indicated in its application that "[t]he absence of any environmental features on this property, or any adjacent environmental features that might be impacted[,] help support the deviation." As noted above, the property in question is unique in the sense that it is flat, treeless, and has no remarkable environmental features. If a site is devoid of environmental features, as it is here, the DRC has consistently interpreted this provision as having no application in the deviation process. This is the same interpretation used by the DRC when it approved Petitioner's application for a height deviation in 1996 to construct the Hilton Garden Inn. Like AHG's property, Petitioner's property was also devoid of environmental features. Therefore, this criterion does not apply. Even assuming arguendo that this provision applies, the addition of a fifth story to a four-story building has no impact whatsoever on the environmental characteristics of the site. Finally, there is no evidence that the deviation request is inconsistent with the Plan, or that the deviation will have any adverse impact to the general health, safety, and welfare of the public. Indeed, as to any Plan implications that might arise through the construction of a hotel, the evidence shows that the project is wholly consistent with the purpose and intent of the CP land use category, which is to promote higher intensity and density in CP-zoned land and to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting AHG's Type B site plan review application and its application for a deviation from the height restriction for the CP land use category. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 22nd day of January, 2003. COPIES FURNISHED: Charles R. Gardner, Esquire Gardner, Wadsworth, Shelfer, Duggar & Bist, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308-7914 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 John Marshall Conrad, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
Findings Of Fact On March 9, 1973 Peterson, an architect registered in Florida, submitted a proposal "for preparation of design and construction drawings" for remodeling an existing residence to a new law office (Exhibit P-5). This was assigned on March 13, 1978 by attorney Anderson, who also remitted the required $200 retainer fee. Pertinent to this case, the contract provided for services to be rendered as: "Contract documents for permits and construction to include architectural plans (site floor plan, elevations and sections) and engineered structural and electrical drawings; "fee was $1,000 payable $200 on signing and $800 upon completed contract documents for permits." Any other services were at $20 per hour, including design changes after approval of preliminary drawings. The plans Peterson prepared showed the removal of a load bearing wall, without comment or provision for structural additions required by the demolition of the wall. Although the plans were not sealed, Anderson paid the $800 balance and bids were requested. The one bid (Exhibit R-4) was considerably more than budgeted, therefore the project was delayed. After a time, Anderson got interested in the project again but Peterson was unavailable so another architect was used and the project was completed. Thereafter, Anderson's requested reimbursement from Peterson was refused and this complaint was filed. Two registered Florida architects testified as experts for the Petitioner. Peterson's plans did not meet minimum architectural standards, particularly as to omission of substitute structural members for the removal of the load bearing wall. Although, structural changes could have been added by addendum, plans must be complete prior to obtaining permits and bids, and the acceptance of the full amount of the fee. In mitigation, Respondent agreed that he misinterpreted Anderson's understanding and desires but thought the standard procedure was followed; he indicated that this is the first time he has been in this type of situation. More particularly, Peterson intended to exercise his right to prepare an addendum that would have provided an appropriate structural substitution for the load bearing wall, after the ceiling was opened up; he considered the original plans for the wall as schematic only. He assumed the project was not going forward and the bidding process was merely to get prices.
