Findings Of Fact The Parties. Petitioner, the Environmental Coalition of Broward County, Inc. (hereinafter referred to as the "Coalition"), is a Florida corporation. The Coalition has offices located in Broward County. The Coalition has approximately 500 members, most of whom reside in Broward County. A substantial number of the Coalition's members own property in Broward County and/or operate businesses within Broward County. The Coalition is a not-for-profit corporation, chartered for educational and scientific purposes. The primary purpose of the Coalition is to present objections and recommendations to local governments concerning planning issues on behalf of its membership. The Coalition is authorized to participate in actions of this type and to represent its membership in administrative proceedings. The Coalition presented oral and written objections to Broward County during the review and adoption process concerning the plan amendment at issue in this proceeding. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is the state agency charged with the responsibility of implementing the Local Government Comprehensive Planning and Land Development Act, Chapter 163, Part II, Florida Statutes (hereinafter referred to as the "Act"). Among other things, the Department is required to review local government comprehensive plans and amendments thereto for compliance with the Act. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government with the authority pursuant to the Act and the Broward County Charter to adopt and amend a comprehensive plan. The County has adopted the 1989 Broward County Comprehensive Plan (hereinafter referred to as the "Plan"). The Broward County Board of County Commissioners (hereinafter referred to as the "County Commission"), is the local planning agency for the County. The County Commission is advised on land use planning issues by the Broward County Planning Council (hereinafter referred to as the "Planning Council"). The Planning Council was created by the County Charter. Intervenors, Miramar Lakes, Inc., d/b/a Miramar Rock, Robert A. Whitcombe, Trustee, and the South Broward Trust own or have under contract virtually all of the property affected by the Plan amendment which is the subject of this proceeding. These Intervenors have entered into a joint venture agreement with Intervenor Atlantic Gulf Communities Corporation to develop the subject property. Intervenors applied for the amendment that is the subject of this proceeding and presented oral or written comments, recommendations and objections during the period of time between the transmittal hearing and adoption of the subject Plan amendment. The County's Plan. The County adopted a comprehensive plan as required by the Act in 1989. The planning horizon of the plan is 2010. The Plan includes two volumes of text, two volumes of support documents and associated maps. See Petitioner's exhibit 8. Volume One is text and is effective countywide. Volume Three contains support documents for the Plan. The Plan also includes the 1989 Broward County Future Land Use Plan Map (Series) (hereinafter referred to as the "FLUM"). The FLUM depicts the proposed distribution, extent and location of categories of land uses allowed under the Plan. Among others, those land uses include "residential" at various densities and "agricultural". Pursuant to the Plan, the eastern approximately one-third of the County may be developed. The developable area consists of approximately 400 square miles of land area. The western approximately two-thirds of the County are designated as water conservation areas and are separated by a levee from the developable one- third. Future land use elements of municipal comprehensive plans in the County must be in substantial conformity to the Plan. The Subject Property. The property which is the subject of the Plan amendment at issue in this case consists of 1,280 acres of a total of 1,965 acres (hereinafter referred to as the "Property"). The Property is located in the City of Miramar, in southwest Broward County, Florida, Sections 25, 26, 27 and 36, Township 51 South, Range 39 East. The Property is located in the southwestern portion of the developable one-third of the County. See Map 1 of Broward County exhibit 1. The Property is bounded on the east by S.W. 184th Avenue and on the north by Honey Hill Road. It is east of U.S. Highway 27. Part of the Property is vacant. Part of the Property is being used as cattle pasture and for a rock mining, batching, mixing and crushing operation. Existing land uses in the vicinity of the Property include vacant land, rock mining and some development to the north, single-family residential development to the east, rock mining and vacant land to the south, in Dade County, Florida. Residential development immediately to the east in a development known as "Silverlakes" is being developed at a density of three dwelling units per acre. Further to the west of the Property is the eastern boundary of the water conservation areas of the Everglades. These areas are separated from the rest of Broward County by a levee. The land use designation of the Property and other property in the surrounding area is "agricultural". Under the Plan, the land use designation allows agricultural uses and residential development of one dwelling per 2.5 acres. Under its current land use designation, a total of 786 dwelling units may be developed on the Property. The First Amendment Requested by the Intervenors. In early 1994 Intervenors filed an application with the County seeking an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Low (2) Residential". "Low (2) Residential" allows the development of two dwelling units per acre. The Planning Council conducted a review of the proposed amendment. The Broward County Department of Natural Resource Protection raised objections to the proposed amendment because the Property is located in an area of water recharge and wetlands. The area is identified as within a general wetlands area on the "Southwestern Generalized Wetlands Map" of the Plan. 30 Based upon the objections of the County Department of Natural Resource Protection, the staff of the Planning Council recommended denial of the proposed amendment. The South Florida Water Management District (hereinafter referred to as the "SFWMD"), an agency with broad regional responsibility for water management in southeast Florida, raised objections with the Planning Council concerning the location of the property in an area which was being considered for use as part of a project to restore the Everglades. The SFWMD was concerned that the Property is located within an area which has come to be known as the "East Coast Buffer". In early 1994, at the time of the initial review of the proposed amendment, the East Coast Buffer was a study area abutting the eastern water conservation areas of southeast Florida. The SFWMD was studying the East Coast Buffer for use in water conservation efforts in southeast Florida. At the time of the first review of the proposed amendment, the portion of the East Coast Buffer in which the Property is located was being considered for preservation as a reservoir site. The Planning Council transmitted the proposed amendment to the County Commission without recommendation. The County Commission decided not to transmit the proposed amendment to the Department for its review, ending review of the initial application. The Initial Review of the Subject Amendment. A second application on the Property was resubmitted by the Intervenors in March of 1994. The application was designated Application PC 94- 15. Application PC 94-15 sought an amendment of the FLUM to modify the future land use designation of all 1,965 acres of the Property to "Irregular 1.5 Residential". "Irregular 1.5 Residential" allows 1.5 dwelling units per acre. The amendment sought by Intervenors would have allowed an increase from 786 dwelling units to 2,947 dwelling units on the Property. An increase of 2,161 units. Application PC 94-15 was again reviewed. The same comments about, and objections to, the proposed amendment were raised concerning groundwater and aquifer recharge. The staff of the Planning Council again recommended denial of the proposed amendment. 41 The Planning Council recommended transmittal of the application, subject to the Intervenors satisfying the concerns raised by the SFWMD. On August 17, 1994, the County Commission transmitted Application PC 94-15 to the Department, conditioned upon the Intervenors satisfying the concerns of the SFWMD. The SFWMD objected to Application PC 94-15 because of its conclusion that the proposed future land use designation was not compatible with the East Coast Buffer then under evaluation by the SFWMD. SFWMD had developed data and conducted computer modeling concerning the utilization of a buffer for a variety of purposes, including reducing seepage of water from the Everglades, increasing groundwater recharge into aquifers and creating a natural buffer to protect the Everglades from the impacts of development. The SFWMD had commissioned a worldwide engineering firm, CH2M Hill to prepare a report on the East Coast Buffer. The SFWMD recommended that Application PC 94-15 not be approved until it had completed its study of the East Coast Buffer because the land use designation being sought might be incompatible with the conclusions reached from the SFWMD's and CH2M Hill's evaluation. The Department reviewed Application PC 94-15 and, based upon comments from the SFWMD similar to those raised before the County Commission, issued an Objections, Recommendations and Comments report concerning Application PC 94-15. The Department raised objections consistent with the adverse comments from the SFWMD. Modification of the Proposed Amendment. Parts of southwestern Broward County and northwestern Dade County were designated "Management Unit 5" by the SFWMD. Management Unit 5 was being considered, as recommended by CH2M Hill, as a reservoir area. Development of the Property was, therefore, not considered to be a use comparable with the concept of the East Coast Buffer being considered by the SFWMD at the time of the County's and Department's decision to reject Application PC 94-15. Intervenors worked with the SFWMD in an effort to find a way of modifying Application PC 94-15 to satisfy the SFWMD's concerns. SFWMD utilized computer modeling to simulate groundwater and surface water flows in Management Unit 5 to determine the impact of allowing development of the Property. The SFWMD concluded that Management Unit 5 was more suitable as a recharge area rather than as a reservoir. This conclusion was based, in part, of the transmissibility of the soil and other site conditions which were not conducive to storing water above ground for long periods of time. Use of Management Unit 5 as a recharge area and not a reservoir requires less surface area. Therefore, it was concluded that development in the area might be compatible with the SFWMD's East Coast Buffer concept. The SFWMD modeled four development alternatives for Management Unit 5 and analyzed the impact of each alternative on the efforts to retard seepage, provide groundwater recharge and enhance wetland benefits: (a) retaining the Property as a recharge area and allowing no development; (b) retaining the entire western two-thirds as a recharge area and allowing development of the eastern one-third; (c) retaining the western one-third as a recharge area and allowing development of the eastern two-thirds; and (d) allowing development of the entire management unit. Alternatives (b) and (c) assumed that a berm would be constructed between the recharge area and the developed area. After meeting with Intervenors and discussing the results of the modeling, Intervenors indicated willingness to remove the western portion of the Property from the proposed development. The SFWMD then conducted a more detailed, computer analysis of the following alternatives: (a) continuing existing conditions; (b) constructing a berm around Management Unit 5 and utilizing the entire area as a recharge area; (c) constructing a berm between the eastern and western sections of the Management Unit 5 and utilizing the western section for recharge with no development in the eastern section; and (d) alternative "(c)" with development of the eastern section. As a result of computer modeling of the alternatives, it was concluded that alternatives (b), (c) and (d) could significantly reduce seepage from the Everglades and increase groundwater recharge in to the aquifers when compared to development under the agricultural land use designation of alternative (a). As a result of the more detailed analysis, the SFWMD concluded that essentially all of its goals could be achieved for Management Unit 5 if the western section of Management Unit 5 is preserved even if development is allowed in the eastern section. The SFWMD concluded that the eastern two-thirds of the Property, consisting of approximately 1,280 acres, could be developed as "Irregular 1.5 Residential" if the western one-third, consisting of approximately 685 acres, was utilized as a recharge area. Intervenors agreed to preserve the western third of the Property (685 acres) and grant the SFWMD a flowage easement, consistent with the East Coast Buffer and at a savings of $43 million. On December 14, 1994, the staff of the SFWMD presented the results of the computer modeling to the SFWMD. On December 15, 1994, the SFWMD withdrew its objection to Application PC 94-15, conditioned upon the deletion of the 685 acres from the application and the granting of a flowage easement. The County and the Department were informed of the decision of the SFWMD. Approval of Application 94-15. On December 20, 1994, the County Commission adopted by Ordinance 94-55 an amendment to the Plan, Amendment PC 94-15 (hereinafter referred to as the "Amendment"), subject to the conditions suggested by the SFWMD, which resolved the SFWMD's objections. The Amendment included modifications to the FLUM and text amendments. The Amendment, in relevant part, modifies the future land use designation of approximately 1,280 acres of the Property from "Agricultural" to "Irregular 1.5 Residential". This will allow the construction of a total of 1,920 dwelling units on the Property, or an increase of 1,408 dwelling units over the number of dwelling that may be constructed under the current future land use designation for the Property. In light of Intervenor's modifications of the application, the removal of the SFWMD's objections and the approval of the application by the County, the Department found the Amendment to be in compliance with the Act. On February 14, 1995, the Department issued a notice of intent to find the Amendment in compliance. The County and the Department accepted and relied upon the data and methodology employed by the SFWMD and the conditions for removal of the SFWMD's objections. Petitioner's Challenge. On or about March 8, 1995, Petitioner filed a Petition for Formal Administrative Hearing with the Department challenging the Amendment. Petitioner filed an Amended Petition on April 25, 1995. At the commencement of the final hearing, Petitioner withdrew all issues it had raised in the Amended Petition except the issues of: (a) whether the data and analysis available supports a conclusion that there is a need for additional residential development; and (b) whether the Amendment is supported by data and analysis in light of an ongoing study of the East Coast Buffer. Residential Housing Need. The Plan includes the following Goal and Objective concerning the provision of adequate areas for residential use: Goal 01.00.00 Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00 Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Plan, including the methodology utilized to determine residential need, was found to be in compliance by the Department. The residential need methodology of the Plan utilized the Broward County Population Forecasting Model to project the population of southwest Broward County in 1994 to be 225,489 people. This projected population formed the basis for the allocation of residential housing units for Subregion 5 under the Plan. The Property is located in an area of southwest Broward County designated as Subregion 5 in the Plan. In reviewing the Amendment, the County conducted an analysis of the need for additional residential development in southwest Broward County. This analysis utilized, and was consistent with, the residential need methodology of the Plan. A summary of the data and analysis utilized by the County was provided to the Department. The County's analysis indicated that the population of Subregion 5 has exceeded the population projections for the Subregion of the Plan. By 1994, there were 284,361 people living in Subregion 5 or 17,872 more than projected in the Plan. The increased population rate of growth in Subregion 5 was projected to represent an increase in projected demand for approximately 6,847 residential units in excess of the projected demand expected under the Plan. The analysis also took into account amendments to the Plan which have resulted in a reduction of 1,087 residential units for Subregion 5. When combined with the increased population, the data and analysis supports a conclusion that there is a need for 7,934 additional residential units in Subregion 5. The Amendment increases residential housing in Subregion 5 by 1,134 dwelling units (1,920 units allowed under the Amendment, less 786 dwelling units allowed under the current agriculture classification), well below the projected need for additional residential units for Subregion 5. The data and analysis relied upon by the County and submitted to the Department supports the conclusion of the County that there is need for the proposed additional residential development approved by the Amendment. The data and analysis relied upon by the County and the Department was professionally acceptable and adequate to support the Amendment. The evidence presented by Petitioner failed to prove that the data and analysis relied upon by the County and the Department was not professionally acceptable and adequate. Rather than attempting to prove that the County's methodology was not professionally acceptable or was flawed, Petitioner utilized a methodology based upon an annualized population growth rate for Subregion 5. Petitioner offered evidence that there is sufficient residential housing approved under the Plan to meet the projected population for 15.6 years, beyond the remaining life of the Plan. The methodology utilized by Petitioner was, by the admission of the Petitioner's own witness, not a professionally acceptable methodology. The evidence failed to prove that the data and analysis relied upon by the County does not support its conclusion that there is sufficient need for the additional residential housing authorized for the County by the Amendment. The East Coast Buffer Zone. Efforts to restore the Everglades have been initiated and are ongoing. As a part of these efforts a group of technical and scientific staff members of various federal agencies involved in the restoration efforts were formed as the "Science Sub Group." The Science Sub Group was formed as an advisory group to provide guidance towards ecosystem restoration efforts. The Science Sub Group had no implementing authority. It issued at least one report in late 1993 which included an East Coast Buffer concept. The East Coast Buffer identified by the Science Sub Group included the area in which the Property is located. The Science Sub Group relied upon data obtained from the SFWMD and various computer models developed by the SFWMD, and SFWMD personnel contributed to the preparation of the report. The East Coast Buffer concept generally includes a series of interconnected water flow-ways along the eastern edge of the water conservation areas necessary to restore the Everglades. The federal government has also instituted a study known as the "Central & South Florida Project: Comprehensive Review Study" (hereinafter referred to as the "Restudy"). The United States Corps of Engineers is the lead agency of the Restudy. The first phase of the Restudy's efforts has resulted in a "Reconnaissance Report", also known as the "Recon Study". The second phase of the Restudy's efforts will be the feasibility phase. The feasibility phase will begin in the summer of 1995 and will be completed several years later. The purpose of the Restudy is to bring together the interested federal agencies to review the current management of the Everglades and identify strategies for altering management practices and systems to improve the Everglades. The Recon Study was completed in late 1994. It describes various conceptual strategies for restoring the Everglades. The determination of the feasibility of the strategies has not, however, been started, much less completed. Therefore, although the East Coast Buffer concept is considered in the Recon Study, the actual identification of the area which will constitute the Buffer has not been identified. Nor has the area which should constitute the East Coast Buffer been recommended in the Recon Study. The Recon Study identifies problems and opportunities, formulates alternative plans, evaluates conceptual alternative plans and recommends further study. The Recon Study is advisory. It does not identify, recommend or implement a plan of action. The Coalition presented evidence concerning the ongoing analysis of Everglades restoration efforts. That evidence proved that the Property is located within a very large area, which completely surrounds the Everglades, which is being considered as part of the Everglades restoration effort because of the impact of this large area on restoration efforts. The evidence presented by the Coalition, however, failed to prove that the Property has been, or will be, determined to be essential or even necessary for future Everglades restoration efforts. At the time of the approval of the Amendment and, even at the time of the final hearing of this case, no such determination had been made. Nor had any determination been made as to what will be necessary for the restoration of the Everglades or whether decisions will be made to carry out the necessary restoration efforts. As recognized by the Coalition in its proposed order: 52. The study necessary to make [a determination of the water levels needed] for the areas which are implicated by this amendment will be done in the next two years or three years. * * * 55. There is no way of telling, based on the data and analysis available at this point, how much water will be necessary in order to fully restore the Everglades. . . . Coalition proposed findings of fact 52 and 55. The Coalition also recognized the following: The Reconnaissance study has not reached the point where conclusions can be drawn about parcel specific uses. The next step is the feasibility planning phase, which is a much more detailed phase which will run for several years. . . . Coalition proposed finding of fact 107. Instead of attempting to prove that the data and analysis at the time of adoption of the Amendment indicated that development of the Property authorized by the Amendment would be detrimental to restoration efforts, the Coalition attempted to prove that development of the Property should be delayed until data and analysis is available indicating conclusively what the impact of development of the Property will be on restoration efforts. The Act does not require such delay. In addition to failing to prove what the impact of development of the Property will be on restoration efforts, the evidence presented by the Coalition also failed to prove that the conclusions reached by the Science Sub Group and the Restudy will even be implemented. The evidence presented by the Coalition failed to prove that the conclusions of the SFWMD with regard to the impact of the Amendment are not supported by data and analysis or were not arrived at by professionally acceptable methods. While the evidence proved that there will be some reduction in the amount of groundwater recharge function and seepage control function as a result of the Amendment, the evidence failed to prove what ultimate impact the reductions in recharge and seepage control will be or that the SFWMD's conclusions are not reasonable. While the Coalition proved that the SFWMD's conclusions were not based upon a consideration of what should be done to restore the Everglades, the evidence failed to prove that the information available was sufficiently conclusive that the SFWMD should have objected to the Amendment. The data and analysis relied upon by the County in approving the Amendment was collected and applied in a professionally acceptable manner. None of those agencies charged with responsibility to review the Amendment raised objections to its approval. The evidence failed to prove that the state of the data and analysis available to the County from the Science Sub Group and the Restudy or any other source concerning the area referred to as the East Coast Buffer and the Property is such that it proved that the data that was relied by the County upon was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department dismissing finding the Amendment "in compliance" and dismissing the petition in this case. DONE AND ENTERED this 19th day of July, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Coalition's Proposed Findings of Fact Accepted in 1-2. Accepted in 2. 3-4 Accepted in 3. Accepted in 4. Accepted in 5 Accepted in 4. Accepted in 5. Accepted in 4-6. Accepted in 5-6. Accepted in 6. Hereby accepted. Accepted in 12 14-15 Not relevant. 16-18 Not relevant. See 81-84. 19-25 Not relevant and not supported by the weight of the evidence. See 81-84. Accepted in 29. Not supported by the weight of the evidence. Hereby accepted. Accepted in 26 and hereby accepted. 30-31 See 24. Accepted in 26. Accepted in 36 and 62. Accepted in 62. 35-41 Hereby accepted. 42-48 These proposed findings are generally correct. They are not, however, relevant to the ultimate determination in this case. 49-50 Too speculative. Not supported by the weight of the evidence. The first sentence is hereby accepted. The last sentence is not relevant. See 96. Not supported by the weight of the evidence and not relevant. Not supported by the weight of the evidence. The first sentence is accepted in 96. The last sentence is not relevant. Hereby accepted. 57-63 Too speculative. Not supported by the weight of the evidence. 64-65 Not relevant. Hereby accepted. Accepted in 89 and 91 and hereby accepted. Accepted in 90 and 92. See 86 and 92. Hereby accepted. Although generally true, the evidence failed to prove that this finding specifically applies to the Property. Except for the first sentence, not supported by the weight of the evidence. Hereby accepted. Accepted in 31-33. Not supported by the weight of the evidence. 76-87 Although generally correct, these findings were too broad and the evidence failed to prove that they specifically apply to the Property. 88-90 Although generally correct, these proposed findings are not relevant. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. Too speculative. Not supported by the weight of the evidence. 94-97 Although generally correct, these proposed findings are not relevant. 98 Too speculative. Not supported by the weight of the evidence. 99-100 Not relevant. Hereby accepted. Not supported by the weight of the evidence. Although generally correct, these proposed findings are not relevant. 104-105 Not relevant. Too speculative. Not supported by the weight of the evidence. Accepted in 97. Accepted in 90. Too speculative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 111-114 Too speculative. Not supported by the weight of the evidence. The County's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 7. 3 Accepted in 8. 4 Accepted in 11. 5 Hereby accepted. 6 Accepted in 12. 7 Accepted in 13. 8 Accepted in 14. 9 Accepted in 15. 10 Accepted in 9-10. 11 Accepted in 18. 12 Accepted in 16. 13 Accepted in 17. 14 Accepted in 61. 15 Accepted in 60. 16 Accepted in 19-20, 26 and 62. 17 Accepted in 23. 18 Accepted in 21-22 19-20 Accepted in 24. 21 Hereby accepted. 22 Accepted in 37. 23-24 Hereby accepted. 25 Accepted in 68. 26 Accepted in 65-67. 27-28 Accepted in 67. 29-30 Hereby accepted. 31-32 Accepted in 28. 33 Accepted in 29. 34 Accepted in 30. 35 Accepted in 34. 36 Accepted in 31 and hereby accepted. 37 Accepted in 32-33. 38 Accepted in 31. 39 Accepted in 33. 40 Accepted in 35. 41 Accepted in 316. 42 Accepted in 37. 43 Accepted in 39. 44 Accepted in 40. 45 Accepted in 41. 46 Accepted in 42. 47 Accepted in 72. 48-49 Hereby accepted. Accepted in 73-77 and hereby accepted. Accepted in 76-77. Accepted in 38. Accepted in 79-80 Accepted 58 and 62. 55-57 Hereby accepted. Accepted in 82. Hereby accepted. 60-61 Accepted in 81-84. 62 Hereby accepted. 63-65 Accepted in 46 and hereby accepted. Accepted in 43 and 45. Accepted in 88. Accepted in 89-90. 69-70 Accepted in 85-86. 71 Accepted in 90 and 92-93. 72-77 Hereby accepted. Accepted in 32 and 44. Hereby accepted. None proposed. Accepted in 33. Hereby accepted. Accepted in 50. Accepted in 51. Accepted in 49 and hereby accepted. Hereby accepted. 87-88 Accepted in 52. 89-90 Hereby accepted. Accepted in 53 and 58 and hereby accepted. Accepted in 54. Accepted in 56. Accepted in 58. 95-96 Accepted in 59. Accepted in 60. Accepted in 61. The Department's and Intervenors' Proposed Findings of Fact Accepted in 1. Accepted in 7. Accepted in 8. Accepted in 11. Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 9-10. Accepted in 18. Accepted in 16. Accepted in 17. Accepted in 61. Accepted in 11 and 19-20. Accepted in 20. Accepted in 23. Accepted in 24-25. Accepted in 26. Accepted in 27. Accepted in 36-38. 22-37 Hereby accepted. Accepted in 43. Accepted in 88. Hereby accepted. Accepted in 31. 42-43 Accepted in 44. Accepted in 43 and hereby accepted. Hereby accepted. Accepted in 42. Accepted in 42 and 46. Accepted in 46 and hereby accepted. Accepted in 46. Accepted in 50. Accepted in 46. 52-53 Accepted in 48. Accepted 49. Accepted in 49, 52 and 54. Accepted in 50. Accepted in 51. Accepted in 54 and 57. 59-60 Accepted 54. 61-63 Accepted in 54 and hereby accepted. Accepted in 55. Accepted in 56-57. 66-67 Accepted in 58. 68-70 Accepted in 59. Accepted in 64. Accepted in 58 and 62. Accepted in 60 and 62. Accepted in 63. Accepted in 67. Hereby accepted. Accepted in 67 and hereby accepted. Accepted in 37 and hereby accepted. Not relevant. Accepted in 86. Hereby accepted. 82-83 Accepted in 86. Accepted in 87. Accepted in 89 and hereby accepted. Accepted in 90. Accepted in 90 and 92-93. Accepted in 93. 89-90 Hereby accepted. Not supported by the weight of the evidence. Accepted in 72-78. Accepted in 69-71. Accepted in 70. Accepted in 73-74 and hereby accepted. Accepted in 75. Accepted in 76. Accepted in 77. Accepted in 78. Accepted in 79-80. 101-102 Accepted in 82. Accepted in 83. Accepted in 83-84. Accepted in 81 and 84. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Brion Blackwelder, Esquire Jack Milbery, Esquire 8751 West Broward Boulevard, #206 Plantation, Florida 33324 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy Lautenschlager, Esquire Broward County Attorney's Office 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Glenn Smith, Esquire Michael A. Cohn, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, Florida 33302 Honorable Gerald F. Thompson Chairman, Broward County Board of County Commissioners Governmental Center 115 South Andrews Avenue Fort Lauderdale, Florida 33301
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue is whether Petitioner is entitled to a final order amending the development order for the Quadrangle DRI to authorize the replacement of office space with multifamily residential units.
Findings Of Fact The Roles of Residential Units and Residential Acreages in Quadrangle Development Orders Petitioner is a joint venture. Its partners are Weyerhauser Realty Company and RMDC Quadrangle Company. RMDC Quadrangle Company is a subsidiary of Reynolds Metal Development Company. (Tr., p. 320.) The partners have divided development rights between themselves, but legal title remains in Petitioner. (Tr., p. 321.) All references to "Petitioner" include Petitioner's predecessors in interest. On November 5, 1984, Respondent issued a development order (DO) approving the application for a development of regional impact (DRI) known as The Quadrangle (Quadrangle). (Resp. Ex. 3.) Quadrangle is located on 465 acres immediately west of the University of Central Florida in east Orange County. Quadrangle occupies about two-thirds of the area bounded by University Boulevard on the south, Alafaya Trail on the east, Rouse Road on the west, and McCulloch Road on the north. (Resp. Ex. 1.) At this location, McCulloch Road separates Orange and Seminole counties. (Tr., p. 87.) As originally proposed, Quadrangle was to have been a corporate business center with over two million square feet of office space and nearly one-half million square feet of supporting uses, including hotels and restaurants. (Resp. Ex. 1, pp. 10 and 13.) (All page references are to the actual number of pages starting with the first page of the exhibit and typically do not correspond to the page numbers shown on the exhibit.) The original DRI application identified 21 parcels: 13 for office, two for hotel, one for professional office/health center, one for retail, one for restaurant, one for bank/office, one for restaurant/recreation/park, and one for professional office. (Resp. Ex. 1, Table 1.) The original DRI application designated as office what is now known as Tract 7, which is the parcel at issue in this case. (Cf. Resp. Ex. 1, Land Use Plan, with Pet. Ex. 2A.) Ensuing requests for approvals of proposed land use changes addressed the requirements of local and state law governing, respectively, planned developments (PD) and DRIs. This case involves exclusively the DRI process. The documents initiating amendments to the DRI DO are contained in packages entitled "Notice of Change for the Quadrangle DRI" (NOPC). (The first such package bears a slightly different name.) The NOPCs contain the same information as that contained in the packages used to initiate PD amendments. (Each of these PD packages is called an "Amended Land Use Plan" (ALUP) and contains a map known by the same name. In December 1993, Petitioner filed an NOPC requesting a DO amendment approving residential development. (Pet. Ex. 3.) This was the first request to add any form of residential development, exclusive of hotels, to Quadrangle. The December 1993 NOPC explains the purpose of this request: The proposed amended development program has been designed to introduce multi-family housing into the project in an attempt to address a current deficiency in the marketplace as well as provide a more diverse mixture of land uses within The Quadrangle and the University Activity Center. As demonstrated in Table 1, the currently proposed changes include a reduction of office space by 825,000 square feet, the addition of 960 multi-family units and an increase of 250,000 square feet in the retail land use. The multi-family parcels will be developed with densities up to 18 dwelling units per acre. (Pet. Ex. 3, p. 3.) Explaining the flexibility that Petitioner sought for the Quadrangle DRI, the December 1993 NOPC adds: Exhibit 1--Development Plan (Revised) illustrates the proposed changes to the master development plan. The applicant requests approval to consider each remaining development parcel as a potential site for either commercial/retail, multi-family residential, or office land uses, thereby providing the flexibility needed to adequately incorporate the new land use proposed for the project. Table 1 of the December 1993 NOPC is a Substantial Deviation Determination Chart. This table provides Respondent and other reviewing agencies with information to help them determine, in the DRI process, if the proposed land use change is a substantial deviation from the development already approved by the DO, as previously amended. The Substantial Deviation Determination Chart contains six rows of land uses and four columns: land use, change category, proposed plan, and approved plan. (Pet. Ex. 3, Table 1.) Under Residential, Table 1 states, for the approved plan, "not applicable" because the then-current DO authorized no residential uses. For the proposed plan, Table 1 indicates 960 multifamily units and 56 acres. For "site locational changes," Table 1 refers to Exhibit 1. (Pet. Ex. 3, Table 1.) Exhibit 1, which is also mentioned in paragraph 7 of this recommended order, is the "Development Plan (revised)." The Development Plan comprises a color map, "land use legend," table entitled "Amended Development Program," and untitled table showing tracts, land uses, and acreages. (Pet. Ex. 3, Ex. 1.) Reflecting the proposal that was the subject of the December 1993 NOPC, the land use legend shows Tract 7 as "Office/M.F. [Multifamily] Residential." The Amended Development Program reports an introduction of 960 multifamily residential units, increase of 250,000 square feet of commercial retail/service, and decrease of 825,000 square feet of office/showroom. (Pet. Ex. 3, Ex. 1.) The untitled table on the Development Plan identifies specific, authorized land uses for each parcel. Also reflecting the proposal that was the subject of the December 1993 NOPC, the untitled table states: Tracts Land Use Acreage 1 Commercial/Office/Hotel 20.75 ac. 4A Office/M.F. Residential 23.87 ac. 4B Office/M.F. Residential 15.00 ac. 5 Office/M.F. Residential 18.13 ac. 7 Office/M.F. Residential 24.62 ac. 12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac. 21 Commercial/Office/Hotel 11.27 ac. 25B Commercial/Office 02.19 ac. 25C Commercial/Office/Hotel 03.89 ac. (Pet. Ex. 3, Ex. 1.) TOTAL 144.07 ac. Attachment B to the December 1993 NOPC is a traffic analysis prepared in November 1993 by Kimley-Horn Associates, Inc. The analysis explains adequately how no additional traffic impacts would result from the replacement of 825,000 square feet of office and office/showroom with 960 multifamily dwelling units and 250,000 square feet of retail. (Pet. Ex. 3, Attach. B.) Respondent is not challenging Petitioner's request for an amended DO on the basis of traffic impacts. (Tr., p. 283.) In any event, the single measure of the impact of Quadrangle was traffic trips. (Tr., pp. 120-21.). The November 1993 Kimley- Horn analysis established a formula by which Petitioner could and did demonstrate that all amendments to the DRI DO that Petitioner sought, including the subject amendment, did not generate offsite traffic impacts due to the decreases in Office that accompanied increases in Multifamily Residential. (Tr., pp. 279 et seq.) Each NOPC concludes with a proposed DO. The proposed DO attached to the December 1993 NOPC contains the Development Plan, which is described in paragraphs 10-12 of this recommended order. Although the hearing exhibit is incomplete, the proposed DO presumably incorporates by reference, in the same manner as described below for subsequent NOPCs, "the development quantities" set forth in the Development Plan. (Pet. Ex. 3, last two pages.) The DO actually approving the December 1993 NOPC is the Non-Substantial Deviation Amendment to Development Order for the Quadrangle Development of Regional Impact, dated May 10, 1994. The DO states that the "development quantities and land uses . . are . . . amended as described and stated in the attached Exhibits 'A' and 'B.'" (Stipulated Facts filed December 20, 1999 (Stip.), Ex. D, p. 2.) Exhibit A to the May 10, 1994, DO sets exchange ratios of one multifamily unit for 300 square feet of office and 1000 square feet of retail for 2400 square feet of office, in both cases up to the maximum measures of intensity approved by this DO. Exhibit A subjects these exchange ratios to the "following maximum result: Office--2,744,263 square feet[;] Commercial-- 397,000 square feet[;] Hotel--450 rooms[; and] Residential--960 units." (Stip., Ex. D, Ex. A.) Exhibit B to the May 10, 1994, DO is the Development Plan that is attached to the December 1993 NOPC. (Stip., Ex. D, Ex. B.) The ALUP accompanying the December 1993 NOPC is dated January 1994. (Pet. Ex. 4.) The January 1994 ALUP contains design standards for the newly added residential land use. (Pet. Ex. 4, p. 15.) For the most part, these standards involve buffers, setbacks, and net livable areas (Pet. Ex. 4, Ex. 3 (ALUM map)), although the PD approval presumably added other design standards to all residential development within Quadrangle. The first two issues, as stated in the Preliminary Statement above, involve the calculation and purpose of the acreage figures supplied by Petitioner for Multifamily Residential. Although over 100 acres bore the designation of Multifamily Residential after approval of the amendments sought by the December 1993 NOPC, the same acreage also bore the designation of Office. In calculating the 56 acres used in Table 1 of the December 1993 NOPC, Petitioner added the acreage of Tracts 4A, 4B, and 5. (Tr., p. 219.) (The total of these three parcels is actually 57 acres; all acreages in this case are approximations.) Although Tracts 7, 12, 17B, and 17C also bore an alternative Multifamily Residential designation, Petitioner chose to include in Multifamily Residential only the combined acreage of Tracts 4A, 4B, and 5, because Petitioner believed that these were the most likely parcels to be developed for residential, rather than office, uses. Also, Petitioner did not want to distort the Office designation by removing all of these parcels from Office when it was likely that some of them would develop as Office, not Multifamily Residential. Petitioner's acreage assignment is roughly consistent with the maximum allowable density; if each of these tracts developed at its maximum of 18 units per acre, these 56 acres would yield 1008 units, or 48 more units than authorized by the DO approving the December 1993 NOPC. In February 1997, Petitioner filed another NOPC seeking approval of 290 more residential units. The February 1997 NOPC states that the "approved program is shown on Table 1, Substantial Deviation Determination Chart." Explaining further, the February 1997 NOPC adds: "The proposed amended development program has been designed to expand multi-family housing to Tract #1 in an attempt to address a current deficiency in the marketplace and to specify some specific commercial uses so as to provide a more diverse mixture of land uses within The Quadrangle and the University Activity Center." The February 1997 NOPC notes that "Exhibit 1, Development Plan (Revised) illustrates the proposed changes to the master development plan." (Pet. Ex. 7, p. 3.) Exhibit 1 to the February 1997 NOPC is a Development Plan (revised February 10, 1997) featuring a color map. Tract 7 remains designated as Office/Multifamily Residential, as are Tracts 5, 12, 17B, and 17C. The Development Plan discloses that Tracts 4A, 4B, and 25B have been developed or sold. The table entitled "Amended Development Program" shows an increase of 290 multifamily residential units and a decrease of 72,000 square feet of commercial retail/service. (Pet. Ex. 7, Ex. 1.) Reflecting the sales of the three parcels and minor acreage recalculations, the untitled table included on the Development Plan provides the following information: Tracts Land Use Acreage 1 Commercial/Hotel/Office/ M.F. Residential 24.00 ac. 5 Office/M.F. Residential 15.95 ac. 7 Office/M.F. Residential 24.62 ac. 12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac. 21 Commercial/Office/Hotel 11.45 ac. 25C Commercial/Office/Hotel 04.13 ac. TOTAL 104.50 ac. (Pet. Ex. 7, Ex. 1.) Table 1 in the February 1997 NOPC is the Substantial Deviation Determination Chart. This chart indicates that the proposed plan is for an additional 290 multifamily residential units, to a new total of 1250 such units. Under the row for Residential, the chart shows the approved plan as 56 acres and the proposed plan as "Add Tract 1 77 acreage." (Pet. Ex. 7, Table 1.) The proposed DO attached to the February 1997 NOPC amends the "development quantities" to reflect the information contained in an exhibit that was omitted from the copy of the February 1997 NOPC admitted into evidence. Presumably, the attached document was the Development Plan. (Pet. Ex. 7, last two pages.) The DO actually approving the February 1997 NOPC is the Non-Substantial Deviation Amendment to Development Order for the Quadrangle Development of Regional Impact, dated June 24, 1997. The DO states that the "development quantities and land uses . . . are . . . amended as described and stated in the attached Exhibits 'A' and 'B.'" (Stip., Ex. E, p. 2.) Exhibit A to the June 24, 1997, DO is the Development Plan that is attached to the February 1997 NOPC. Exhibit B to the June 24, 1997, DO is the Substantial Deviation Determination Chart that is attached to the February 1997 NOPC. (Stip., Ex. E, Exs. A and B.) Petitioner calculated the 77 acres for Multifamily Residential by adding the acreage of Tract 1 to the 56 acres represented by Tracts 4A, 4B, and 5. (Tr., p. 222-23.) The reasoning was largely the same as that used when totaling the 56 acres in the December 1993 NOPC. Attempting to distinguish why Petitioner would add the acreage of Tract 1, but not Tract 7 at the time of the next NOPC for more residential units (discussed below), Petitioner explained that Tract 1 had not previously been designated Multifamily Residential. (Tr., p. 153.) By this time, Tracts 4A and 4B were under development as multifamily residential. (Cf. Pet. Ex. 3, Ex. 1 with Pet. Ex. 7, Ex. 1.) Occupying nearly all of the McCulloch Road frontage of Quadrangle, these parcels were, respectively, Phases I and II of a large apartment complex known as Knights Krossing. (Pet. Exs. 20, p. 20, and 47.) Tract 1 (except for less than two acres devoted to retail) became Phase III of Knights Krossing. (Pet. Ex. 20, p. 20.) In September 1997, Petitioner filed another NOPC seeking approval of additional residential units. The September 1997 NOPC requests the DO amendment that is the subject of this case. The September 1997 NOPC states that the "approved program is shown on Table 1, Substantial Deviation Determination Chart." Explaining further, the September 1997 NOPC adds: "The proposed amended development program has been designed to expand multi-family housing previously approved on Tract #7 and hotel rooms and restaurant in Tract #25C in an attempt to address an increasing deficiency in the marketplace, the project and the UCF Activity Center. Due to the tremendous growth of the University of Central Florida (currently 30,000 students), the need for these types of uses has increased." The September 1997 NOPC notes that "Exhibit A, Development Plan (Revised) . . . illustrates the proposed changes to the master development plan." (Pet. Ex. 11, p. 3.) Exhibit A to the September 1997 NOPC is the Development Plan (revised August 1997) featuring a black-and-white map. The Development Plan continues to designate Tract 7 as Office/Multifamily Residential, but shades the tract to show that it is an "amended area." The Development Plan also shades Tract 25C, which bears the underlying designation of Commercial/Office/Hotel. The only other tracts designated as Office/Multifamily Residential continue to be Tracts 5, 12, 17B, and 17C, and Tract 1 continues to bear its designation as Commercial/Hotel/Office/Multifamily Residential. The table entitled "Amended Development Program" shows an increase of 53 hotel rooms, 310 multifamily residential units, and 8000 square feet of commercial retail/service and a decrease of 234,863 square feet of office/showroom. (Pet. Ex. 11, Ex. A.) The untitled table on the Development Plan provides the following information: Tracts Land Use Acreage 1 Commercial/Hotel/Office/ 24.00 ac. M.F. Residential 5 Office/M.F. Residential 15.95 ac. 7 Office/M.F. Residential 24.62 ac. 12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac. 21 Commercial/Office/Hotel 11.45 ac. 25C Commercial/Office/Hotel 04.13 ac. (Pet. Ex. 11, Ex. A.) Table 1 in the September 1997 NOPC is the Substantial Deviation Determination Chart. This chart indicates that the proposed plan is for an additional 310 multifamily residential units, to raise the total for the Quadrangle DRI to 1560 such units. Under the row for Residential, the chart shows that the approved plan is still for 77 acres. (Pet. Ex. 11, Table 1.) The proposed DO attached to the September 1997 NOPC amends the "development quantities, land uses and acreage" to reflect "the attached schedules and master plans" as Exhibit A, which is the Development Plan. (Pet. Ex. 11, last three pages, and Stip., Ex. F, Attach. B, Ex. A.) The September 1997 NOPC marks the first time that Petitioner sought additional Multifamily Residential units without increasing the acreage assigned to residential uses in the Substantial Deviation Determination Chart. Petitioner admits that, in retrospect, it probably should have added the 24.62 acres represented by Tract 7. (Tr., p. 200.) As revealed by the shading of Tract 7 and the text quoted in paragraph 32 of this recommended order, Petitioner's purpose in increasing Multifamily Residential by 310 units was to allow residential development of Parcel 7. (Tr., p. 235.) However, Petitioner wanted its acreage figures to balance (Tr., p. 236), and Petitioner was concerned that adding the acreage of Tract 7 to Multifamily Residential would distort the Office acreage. (Tr., p. 233.) Only later did Petitioner discover, after discussions with a representative of the Department of Community Affairs, that Petitioner could have listed contingent acreages, so as to disclose that the actual use of parcels bearing multiple designations could not be ascertained until their sale or development. (Tr., p. 238.) The parties eventually bifurcated the requests contained in the September 1997 NOPC, and Respondent approved the exchange of 44,263 square feet of office space for 53 hotel rooms. (Stip., Paras. 8-12.) After discussion with nearby homeowners (Tr., p. 168), Petitioner reduced its request for 310 multifamily residential units to 240 such units. (Tr., p. 168 and Stip., Para. 13.) On March 23, 1999, Respondent conducted a public hearing on the residential aspect of the September 1997 NOPC and accompanying ALUP. (Stip., Para. 15.) Petitioner's present request for additional Multifamily Residential units is for a nonsubstantial deviation to the existing DO. (Stip., Para. 20.) No objection to this aspect of the September 1997 NOPC was lodged by the Department of Community Affairs (Stip., Para. 21), the East Central Florida Regional Planning Council (Stip., Para. 22), or Respondent's Development Review Committee, which found the amendment to be consistent with the Orange County Comprehensive Plan (Stip., Para. 23). In a DO, as defined by Section 380.031(3) and (4), Florida Statutes, Respondent denied the portion of the September 1997 NOPC seeking additional Multifamily Residential units. (Stip., Para. 17.) The only residential development in Quadrangle is Knights Krossing. (Stip., Para. 14.) Currently constructed and proposed units in Knights Crossing will use 965 of the already- approved 1250 Multifamily Residential units, leaving 285 such units available. (Stip., Para. 14.) Tract 4A has 241 units on 20 acres, Tract 4B has 217 units on 20 acres, and Tract 1 has 290 units on 19.4 acres, for a total of 748 units on about 60 acres. (Pet. Ex. 20, p. 20.) The additional 217 units are proposed for Phase IV of Knights Krossing. (Pet. Ex. 20, p. 27.) Phase IV will be developed on Tract 5, if the required land use approvals are obtained. (Tr., p. 191.) The prospective developer of Knights Krossing, Phase IV, is Mr. Davis. (Pet. Ex. 43, p. 1 and Pet. Ex. 19, p. 3.) The 217 units sought for Tract 5 plus the 748 units developed on Tracts 1, 4A, and 4B total the 965 units stated in the Stipulated Facts. The number of Multifamily Residential units requested by Petitioner in this case is dependent upon the resolution of the Davis proposal. The two obvious alternatives are if the Davis proposal were granted or if the Davis proposal were denied. However, if the Davis proposal were denied, there are two alternatives: if Tract 5 were developed residentially at its maximum density or if Tract 5 were not developed residentially (or, to the same effect, if the DO amendment sought in this case were to ignore subsequent residential development of Tract 5). Certain facts are common to all three alternatives. First, Petitioner (or its assignee) wishes to develop 420 Multifamily Residential units on Tract 7, regardless whether the Davis proposal were approved. (Tr., p. 327.) Second, Tracts 5 and 7 are the only unsold parcels bearing the Multifamily Residential designation. (Tr., p. 208.) Tract 17C was sold sometime ago (Pet. Ex. 23), Tract 12 has completed review by the Development Review Committee for office use, and Parcel 17B is under contract for hotel use (Tr., p. 208). (This recommended order shall ignore the possibility that Tracts 12 and 17B may return to the market undeveloped.) Third, at the maximum, per-tract density of 18 units per acre and ignoring any more restrictive effect of design standards, Tract 7 could accommodate a maximum of 450 Multifamily Residential units. In early Development Plans, Tract 5 was shown as 18 acres, so it could accommodate a maximum of 324 Multifamily Residential units. (See, e.g., Pet. Ex. 3, Exhibit 1.) However, in later Development Plans, Tract 5 was shown as 16 acres, due to the removal of two acres of open space from its northwest corner. (Pet. Ex. 23.) If the density is derived on a gross acreage basis, so as to include the excised open space, Tract 5 can still accommodate a maximum of 324 units. As for the first alternative, if the Davis proposal were approved, only 285 units of the currently approved 1250 units would remain for development. In this event, Petitioner would need an additional 135 units, so that 420 units could be developed on Tract 7. (Tr., p. 326.) Under this alternative, in which Petitioner needs an additional 135 Multifamily Residential units, Petitioner is seeking a DO amendment approving a total of 1385 Multifamily Residential units in Quadrangle. As for the second alternative, if the Davis proposal were denied and no proposal for the residential development of Tract 5 emerged (or, at least, were considered at this time), 502 units would remain for development. After subtracting the 420 units for Tract 7, 82 units would remain, unused. Under this alternative, Petitioner does not need a DO amendment to develop 420 Multifamily Residential units on Tract 7, except possibly to acknowledge Petitioner's right to develop 420 such units on Tract 7 for the reasons set forth with respect to the remaining three issues in this case. As for the third alternative, if the Davis proposal were denied and the DO amendment in this case were to take into account subsequent residential development of Tract 5 at the maximum density, Petitioner would need 242 additional Multifamily Residential units to accommodate 420 units on Tract 7 and 324 units on Tract 5. The calculations supporting these figures begin with the 748 units in Tracts 1, 4A, and 4B. This leaves 502 units of the presently approved 1250 units. If Petitioner effectively were to reserve the maximum number of units--324--for Tract 5, then 178 units would remain for Tract 7, and Petitioner would need another 242 units to reach 420 units. Under this alternative, in which Petitioner needs an additional 242 units, Petitioner is seeking a DO amendment approving a total of 1492 Multifamily Residential units in Quadrangle. In this case, Petitioner has chosen to pursue the first and third alternatives. (Petitioner's Proposed Recommended Order, p. 8.) Petitioner's adoption of the third alternative is evidenced by the following statement: Because the number of units to develop Tract 5 might increase, however, if [Petitioner] loses the appeal of the County's denial of the current request (and the current contract for it expires, requiring the formulation of a new development plan for Tract 5), [Petitioner] has continued to request approval for 240 additional units (and a total of 1490 units for the whole development) . . .. (Petitioner's Proposed Recommended Order, p. 8.) Petitioner's request for 240 units is contingent only upon the approval of 217 units for Tract 5; if this occurs, Petitioner would need only an additional 135 units. However, if the Davis proposal were denied, Petitioner would take all 240 units. After adding them to the 502 units remaining after the development of Tracts 1, 4A, and 4B, the resulting 742 units would provide the 420 units sought for Tract 7 and two units less than the maximum number of units allowable on Tract 5, assuming, again, that the density is calculated on the basis of gross acres (or that Petitioner has forgotten that two acres of open space have been taken from Tract 5). As Respondent contends, the third alternative is premature and excessively contingent. By seeking 240 units if the Davis proposal were denied, Petitioner is effectively trying to obtain residential units for Tracts 7 and 5 in this proceeding, without consideration of the specific compatibility issues pertinent to Tract 5, which is closer to the already- developed part of Knights Krossing and most of the residential development along McCulloch Road. By obtaining units now for the maximum development of Tract 5 through an as-yet identified development proposal, Petitioner would deny Respondent the opportunity of examining the proposal, as Respondent is examining Petitioner's proposal for Tract 7 in this case. Petitioner would also deny Respondent the opportunity of obtaining consistency concessions from the future developer of Tract 5 or its predecessor, as Respondent is doing in this case. The Davis proposal for Tract 5 has proceeded further in the land use approval process than has Petitioner's proposal for Tract 7. (Tr., p. 207.) Thus, the possibility of an approval of the Davis proposal is not unreasonably contingent, nor is the possibility of a denial. But the possibility of a denial followed by a hypothetical proposal at maximum density for Tract 5 is unreasonably contingent and prematurely presents land use issues, including compatibility, better left to future consideration by Respondent and the Florida Land and Water Adjudicatory Commission with full knowledge of all relevant facts surrounding a specific development proposal. The preceding analysis reveals an insubstantial contingency in Petitioner's requested number of additional units, if the Davis proposal were granted; an insubstantial contingency in Petitioner's requested number of additional units, if the Davis proposal were denied and no proposal of residential development for Tract 5 were considered in addressing, in this case, the number of Multifamily Residential units in Quadrangle; and an unreasonable contingency in Petitioner's requested number of additional units, if the Davis proposal were denied and an alternative, hypothetical proposal were considered in addressing, in this case, the number of Multifamily Residential units in Quadrangle. For these reasons, as to the first issue, Petitioner has shown that its request for additional Multifamily Residential units is not so contingent as to preclude informed consideration and approval, provided that, if the Davis proposal were approved, the amended DO approves an additional 135 Multifamily Residential Units and, if the Davis proposal were denied, the amended DO approves no additional Multifamily Residential units, but acknowledges that Petitioner may use the 420 units, subject to design standards, on Tract 7 and based on the favorable resolution of the following three issues. The second issue requires analysis of the means by which the Quadrangle DOs restrict land uses. Land use restrictions imposed on residential uses at Quadrangle express themselves in four ways: 1) the per-tract density limitation of 18 units per acre; 2) the design standards found in the ALUPs and PD restrictions; 3) the designation of only certain tracts as eligible for Multifamily Residential; and 4) the maximum number of Multifamily Residential units allowed on those tracts designated Multifamily Residential. Respondent contends that the acreages cited in the Substantial Deviation Determination Charts are a fifth restriction upon residential uses in the Quadrangle DOs. However, this is a misreading of these DOs, invited, perhaps, by Petitioner's inconsistent treatment of acreages. At no time did Petitioner add the acreages of all the tracts designated Multifamily Residential in any of its submittals to Respondent. To have done so would have understated--badly, at the start--the potential nonresidential uses in Quadrangle. In the first two residential DO amendments, Petitioner exercised reasonable judgment in deciding which acreages to include in the total acreage cited for Multifamily Residential. For these DO amendments, Petitioner rationally explained the bases for the totals of 56 and 77 acres, respectively, for Multifamily Residential. The explanation for omitting Tract 7 from the third requested DO amendment--initiated by the September 1997 NOPC--was unpersuasive. The purpose for again increasing the number of Multifamily Residential units was to allow residential development of Tract 7, and an increase in acreage would have better informed Respondent as to what was being proposed. However, Petitioner clearly revealed its intention to use the additional residential units on Tract 7 by shading the tract on the Development Plan and by the text quoted in paragraph 32 of this recommended order. In the final analysis, Respondent's contention that the Quadrangle DRI DOs restrict land uses by the acreages shown on a Substantial Deviation Determination Chart imposes an unreasonably simple restriction upon the way in which this DRI has operated from its inception. Multiple designations by parcel have preserved maximum flexibility for developers. Treating the acreages listed in the Substantial Deviation Determination Chart as restrictions on land uses frustrates the obvious purpose of multiple designations. Respondent was never misled by the listed acreages, given the numerous indicators of flexible land uses contained in the NOPCs. The limits upon residential land uses were always derived in this DRI from per-tract densities, design standards, tract designations, and maximum allowable units of Multifamily Residential. A single notation of projected acreage offered by way of background explanation does not defeat the clear purpose of multiple designations. The impossibility of misunderstanding by Respondent is also confirmed by the evolving nature of Quadrangle itself. The slightest familiarity with this DRI reveals that, in the course of 15 years, Quadrangle, launched as a relatively large office/research park without residential uses, had become a much more mixed-use project, or, perhaps more accurately, two projects--an office park/hotel complex in the south and a high- density residential development in the north. For these reasons, as to the second issue, Petitioner has shown that its request for additional Multifamily Residential units is not precluded by any acreage limitation anywhere in any of the NOPCs or the failure of Petitioner to increase the acreage listed in the Substantial Deviation Determination Chart contained in the September 1997 NOPC. Multifamily Residential on Tract 7 is Compatible with Adjacent and Nearby Residential Land Uses To the north of Knights Krossing is a single-family and multifamily residential development known as Hunter's Reserve. (Tr., 394.) Farther west on McCulloch Road are Riverwalk, on the north of the road, and Riversbend, on the south of the road. Both of these single-family residential developments are east of Rouse Road. Between Riversbend and Knights Krossing is Riverchase, formerly known as University Pines. (Pet. Ex. 47.) Riverwalk and Riverchase are predominantly owner-occupied developments. (Tr., p. 470.) Riverchase is a J-shaped parcel extending from McCulloch Road to the lake that separates Tract 7 from Tract 5. (Tr., p. 161 and Pet. Ex. 47.) The eastern half of the north boundary of Tract 7 abuts the south boundary of Riverchase. The western half of the north boundary of Tract 7 abuts undeveloped land outside of Quadrangle. Unlike Tracts 1, 4A, and 4B, which front on McCulloch Road, Tracts 7 and 5 lack such frontage. Although interior access across Tract 4B could permit residents of Tract 5 access to McCulloch Road, the lake on the east boundary of Tract 7 would prevent direct access for residents of Tract 7, who likely will access their property by way of an interior road that runs to Rouse Road, about 1200 feet north of University Boulevard. (Pet. Exs. 2C, 16, and 47.) The compatibility issue in this case involves the proximity of Tract 7 to nearby residential areas. Tract 7 will be medium density residential, as defined in the Orange County Comprehensive Plan (Resp. Ex. 24, Policy 1.1.11), and the nearby residential areas are mostly single-family residential, although not at exceptionally low densities. The added compatibility issue in this case is the expectation that, given its proximity to the University of Central Florida, Tract 7 will accommodate a large number of college students. The most serious problems are crime and fear of crime. During 1999, Knights Krossing generated 842 service calls. Over the same period of time, for example, Riversbend generated only 33 service calls. (Pet. Ex. 47 and Resp. Ex. 41.) However, the great disparity in these numbers is deceptive. The first three phases of Knights Krossing comprise 2624 bedrooms. (Pet. Ex. 20, p. 21.) Assuming no vacancy rate and only one person per bedroom, Knights Krossing would accommodate about 2500 persons. Riversbend has about 80 single- family homes. (Pet. Ex. 47.) Assuming three to four persons per home, Riversbend accommodates about 250-300 residents. Thus, adjusted for approximate population, Knights Krossing generated about two-and-one-half to three times the service calls than did Riversbend. Closer examination of the Knights Krossing service calls reduces the apparent disparity even further. Sixty-one of the 842 service calls are commercial in nature; for example, 26 service calls are for commercial alarms. These figures reflect the small amount of commercial/retail uses on Tract 1 and have no bearing on an exclusively residential development, such as that proposed for Tract 7. (Resp. Ex. 41, p. 2.) Of the remaining 781 service calls, 234 are for residential alarms, which are a separate category from residential burglary. (Resp. Ex. 41, p. 2.) Although serious nuisances to law enforcement due to the fact that they require responses, residential alarms, in themselves, do not represent a crime; presumably, alarms activated by an actual intruder, rather than a careless or intoxicated college student, would generate an entry under residential burglary, not residential alarms. To get a better idea of seriously disruptive, potentially criminal activity at Knights Krossing, it is therefore necessary to reduce the service calls by another 234 calls. The remaining 547 service calls at Knights Krossing compare more favorably to the service calls at Riversbend, whose data are not broken down, but, if like Riverwalk or Hunter's Reserve, represent only potentially serious matters. (Resp. Ex. 41, p. 1.) Knights Krossing generates one service call per four- and-one-half residents, and Riversbend generates one service call per seven-and-one-half to nine residents. Thus, the rate of serious service calls is not more than double at Knights Krossing than it is at Riversbend and possibly only fifty percent greater. Additionally, the nature of the service calls at Knights Krossing, as well as at nearby residential areas, reveals that the crime at Knights Krossing has not spilled over into surrounding areas. Only one nearby resident testified at the hearing. A resident of Riversbend (Tr. pp. 446-47), she reported that college students had used the playground reserved for residents of Riversbend, but she could not say if they were residents of Knights Krossing. (Tr., pp. 458-59.) Likewise, she could not link to Knights Krossing residents other disruptive behavior by young people, such as racing cars in the detention pond (Tr., p. 457), or menacingly following neighbors in their cars (Tr. p. 458). This resident admitted that she had never called the police herself due to disruptive behavior (Tr., p. 495) and that, on the two occasions that she was bothered by noise through a closed window, at least one of the times was due to the activities of a neighbor in her development. (Tr., p. 499.) Certain characteristics of Knights Krossing tend toward incompatibility with nearby residential areas. Of the 748 units available at Knights Krossing, 492 of them, or two-thirds, are four-bedroom units. (Pet. Ex. 20, p. 20.) Knights Krossing also offers individual, per-bedroom leases. (Tr., pp. 362 and 368.) Knights Krossing experiences considerable tenant turnover. (Tr., pp. 427-28.) However, Petitioner has attempted to eliminate these characteristics in its development proposal for Tract 7. As offered at the hearing, Petitioner has committed itself, and its successors and assigns, to develop no more bedrooms than were previously approved in an earlier proposal for Tract 7 by the Spanos Corporation; not to lease units by individual bedrooms or permit the subleasing or partial assignment of leases so as to achieve the same effect; to provide a single point of access to and from the development; to erect a landscaped fence or landscaped masonry wall around the perimeter of the development except on the borders of lakes; to erect lighting of not more than two foot-candles over all common areas and on poles of not more than 25 feet in height; to include in all leases a strict prohibition against loud noises after 10:00 p.m.; and to incorporate other substantive covenants and restrictions incorporated in a specific agreement among Petitioner, Spanos Corporation, and the Riverchase homeowners association (formerly known as the University Pines Property Owners Association, Inc., dated December 22, 1998. (Pet. Ex. 43.) Spanos Corporation had entered into a since-expired (Tr., p. 328) contract with Petitioner to purchase Tract 7 to build 420 Multifamily Residential units. The three-party agreement contains numerous substantive provisions governing the development of Tract 7. These provisions include a 100-foot natural buffer between Riverchase and Tract 7 with no improvement except a wrought-iron fence, additional wrought-iron fencing along other parts of the boundary of Tract 7, specific details concerning an eight-foot tall masonry wall, a front gate at the entrance to the development constructed on Tract 7, and the use of best efforts to direct street lighting in Tract 7 away from Riverchase homes. (Pet. Ex. 19.) Additionally, the agreement provides for only 804 bedrooms in the 420 units with no four- bedroom units and only 60 three-bedroom units. (Pet. Ex. 19.) In addition to Petitioner's efforts to harmonize the multifamily development with nearby residential developments, the compatibility determination is facilitated by the recognition of the intensification of land uses in the area surrounding Quadrangle. This area has experienced considerable development from 1994 to 1997. (Pet. Exs. 2A, 2B, and 2C and Tr., p. 90.) Agricultural tracts have been converted to other uses in response to the demands placed on this area by, among other things, its close proximity to the University of Central Florida. At the same time, it is undisputed that the proposed development of 420 units on Tract 7 would not adversely affect water and sewer services (Stip., Para. 28), stormwater management (Stip. Paras. 29 and 31), recreational facilities (Stip., Para. 29), schools (Stip., Para. 30), or traffic (Stip., Para. 33). Additionally, compatibility is facilitated by the design standards contained in Respondent's PD regulations. (Tr., pp. 187-89 and 372-74.) For these reasons, as to the third issue, Petitioner has shown that 420 Multifamily Residential units on Tract 7 would be compatible with all nearby residential development, provided the amended DO incorporates the provisions set forth in paragraphs 76 and 77 of this recommended order. Various provisions of the Respondent's 1990-2010 Comprehensive Policy Plan (Comprehensive Plan) apply to this case. (Resp. Ex. 42; all citations to provisions of the Comprehensive Plan are to this exhibit.) Comprehensive Plan Future Land Use Element (FLUE) Policy 1.1.12.1 authorizes specific land use designations, in addition to those generally used by the Comprehensive Plan, through PD review, which shall "ensure adjacent land use compatibility " FLUE Policy 1.1.14 describes the Future Land Use Map (FLUM) as the "proposed long-range general use of property for a designated target year." The Zoning Map indicates the "specific type of land use that the property is currently suited for based on existing conditions." FLUE Objective 1.6 is: to "alleviate the pressure of urban sprawl, reinforce a more efficient pattern of urban development, . . . reduce excessive travel demands," Respondent may reclassify lands as Traditional Neighborhood Development. FLUE Objective 3.1 is to promote "the physical and functional integration of a mixture of land uses." FLUE Policy 3.1.1 provides: "Continuous stretches of similar types and density of units shall be avoided. A diverse mix of land uses, housing types, and densities shall be promoted." Addressing PDs, FLUE Policy 3.1.20 provides: "A proposed change to an approved PD which would increase the land use intensity within the PD without a corresponding decrease in some other portion of the PD and result in greater off-site impacts, shall be reviewed to determine consistency with the comprehensive plan and whether a plan amendment is necessary." FLUE Policy 3.1.21 adds that the FLUM shall be amended to reflect PDs approved since the last FLUM amendment. FLUE Policy 3.2.25 provides that land use changes must be compatible with the existing development and development trend in an area. FLUE Policy 3.8.5 states that a proposed PD amendment shall be determined to be inconsistent with the FLUM if the amendment is inconsistent with the Comprehensive Plan policies ensuring land use compatibility and adequate public facilities or if the amendment results in an increase in the intensity of an existing approved land use, with additional offsite impacts, without a corresponding decrease in another approved land use. FLUE Objective 4.1 is for the enforcement of the FLUM and implementation of the PD regulations to "ensure the compatibility of adjacent land uses " The development of 420 Multifamily Residential units on Tract 7 is not inconsistent with any provisions of the Comprehensive Plan. If the Davis proposal were approved, the 135 additional Multifamily Residential units would be offset by a reduction of 40,500 square feet of Office, pursuant to the well- established exchange ratio. Additionally, as long as the previously described compatibility conditions are incorporated into the DO amendment, the addition of multifamily residential, in such close proximity to the employment and educational services provided by the University of Central Florida, heightens the mixture of uses that may lessen the burden placed on area roadways. For these reasons, as to the fourth issue, Petitioner has shown that an DO amendment authorizing the development of 420 Multifamily Residential units on Tract 7 would be consistent with the Comprehensive Plan, provided the amended DO incorporates the provisions set forth in paragraphs 76 and 77 of this recommended order.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order approving Petitioner's request for a development order amendment allocating another 135 Multifamily Residential units to the Quadrangle DRI, subject to the limitation of these units to Tract 7, a maximum development of 420 such units on Tract 7, the reduction of 40,500 square feet of Office, applicable design standards, the applicable per-tract density restriction of 18 units per acre, the conditions stated in paragraphs 76 and 77 of this recommended order, and the approval of the current Davis proposal for Tract 5. It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's request for additional Multifamily Residential units, in excess of 135, for the Quadrangle DRI. It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order approving Petitioner's request for a development order amendment acknowledging the allocation of 420 of the already-approved 1250 Multifamily Residential units to Tract 7, subject to applicable design standards, the applicable per-tract density restriction of 18 units per acre, the conditions stated in paragraphs 76 and 77 of this recommended order, and the denial of the current Davis proposal for Tract 5. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th of July, 2000. COPIES FURNISHED: Barbara Leighty, Clerk Florida Land and Water Adjudicatory Commission Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Timothy A. Smith Akerman, Senterfitt & Eidson, P.A. Post Office Box 231 Orlando, Florida 32802-0231 William D. Palmer Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804
The Issue The issue in these cases is whether a land development regulation adopted as City of Key West Ordinance 98-31, and approved by a Final Order of the Department of Community Affairs, DCA Docket No. DCA98-OR-237, is consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern set forth in Rule 28-36.003(1), Florida Administrative Code.
Findings Of Fact The Parties. All of the Petitioners in Case No. 99-0666GM, except Neal Hirsh and Property Management of Key West, Inc. (hereinafter referred to as the "Abbe Petitioners"), are all involved in the rental of real property in Key West, Monroe County, Florida. No evidence was presented concerning the identity of Mr. Hirsh or Property Management of Key West, Inc. The Abbe Petitioners are involved in the rental of Key West real property as owners or as rental managers of residential properties which are rented to tourists for periods of less than 30 days or one calendar month (hereinafter referred to as "Transient Rentals). None of the properties used as Transient Rentals by the Abbe Petitioners constitute the Abbe Petitioners' primary residences. Petitioner in Case No. 99-0667GM, Jerry Coleman, owns residential property located in Key West. Mr. Coleman rents the residential property owned by him to tourists for periods of less than 30 days or one calendar month. Mr. Coleman also resides in Key West. Petitioner in Case No. 99-1081DRI, John F. Rooney, failed to present any evidence in support of his case or his standing. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the approval or rejection of the comprehensive growth management plan, plan amendments, and land development regulations adopted by the City of Key West. Intervenor, the City of Key West (hereinafter referred to as the "City"), is a political subdivision of the State of Florida. Consistent with the requirements of Part II, Chapter 163, Florida Statutes, the City has adopted a comprehensive growth management plan, the City of Key West Comprehensive Plan (hereinafter referred to as the "City's Plan"). The City's Plan became effective in 1993. The City's Plan consists of twelve elements: (a) Land Use; (b) Historic Preservation; (c) Traffic Circulation; (d) Housing; (e) Public Facilities; (f) Coastal Management; (g) Port Facilities; (h) Conservation; (i) Open Space and Recreation; (j) Intergovernmental Coordination; (k) Capital Improvements; and (l) General Monitoring and Review. Data Inventory and Analysis in support of the City's Plan was compiled by the City. The City has been designated as an area of critical state concern (hereinafter referred to as the "City ACSC"), pursuant to Sections 380.05 and 380.0552, Florida Statutes, since 1974. Rule 28-36.001, et seq., Florida Administrative Code. As an area of critical state concern, all comprehensive plan amendments and land development regulations adopted by the City must be reviewed by the Department for consistency with the Principles for Guiding Development (hereinafter referred to as the "Principles"), set out in Rule 28-36.003(1), Florida Administrative Code. The Principles were adopted by the Governor and Cabinet, sitting as the Administration Commission, in February 1984. Intervenors, Henry and Martha duPont, reside at 326 Whitehead Street, Key West, Florida. The duPonts reside in an area known as the "Truman Annex." The properties on both sides of the duPonts' residence are used as Transient Rentals. Key West History and Tourism. The City is located primarily on the southern-most bridged island of the Florida Keys, a chain of islands, or keys, which run in a generally southwesterly direction from the southeastern tip of the Florida peninsula. The City, like the Florida Keys, is bounded on the west by the Gulf of Mexico and on the east by the Atlantic Ocean. The City is connected to the Florida peninsula by a series of bridges which connect the keys. The road which runs the length of the Florida Keys is designated U. S. Highway 1. It is approximately 112 miles from the Florida mainland to the City. Prior to the early 1970s, the two most significant components of the City's economy were commercial fishing and the military. Tourism also played a role, but not to the extent that it does today. Toward the middle and end of the 1970s the military presence in the City was significantly reduced and the fishing industry was on the decline. To replace the fading fishing and the lost military components of the City's economy, the City turned to tourism. The City's efforts began in earnest during the 1980s and have continued through the present. The City is now a major tourist destination. The City's most attractive features include its historic character, especially the area of the City designated as "Old Town," its warm climate, its extensive shoreline, and its water resources, including coral reef systems. Approximately two-thirds of the City's economic base is now associated with tourism. While the City shares many of the characteristics of most tourist-resort destinations, it also features certain unique characteristics not found in other destinations. Those features include its geographic remoteness and its limited size. The island where the City is principally located is only approximately eight square miles. Currently, approximately 6.82 million tourists visit the City annually. Approximately 62 percent, or 4.25 million visitors, stay overnight in the City. Approximately 480,000 tourists, or about 11 percent of the overnight guests, stay in Transient Rentals. Tourism in the City represents, directly and indirectly, approximately 66 percent of the economic base of the City. The City's economy in turn represents approximately half of the economy of Monroe County. Approximately 15,000 of the 23,000 jobs in Monroe County and Key West are associated with the tourist industry. Of those jobs, 54 percent of all retail sales jobs are involved in the tourist industry. Approximately 50 percent of the estimated $187 million of Monroe County-wide personal income comes from the tourist industry. The tourist industry should continue to prosper in the City as long as the natural environmental characteristics of the City (the climate, surrounding waters, and tropical features of the Keys) and the unique historical and "community" character of the City remain vibrant. It is the natural environment, the climate, and local community character in combination with the historical and cultural attractions of the City that create a diverse mix of attractions which make the City a unique vacation destination. The City's mixture of attractions must be served by a mixture of tourist accommodation services, including hotels, motels, guest houses, and Transient Rentals. Those accommodations are currently available. There are approximately 3,768 hotel/motel rooms available in the City. There are also approximately 507 residential properties with 906 units which are licensed as Transient Rentals in the City and approximately 647 unlicensed residential properties used for Transient Rentals. The loss of the availability of unlicensed Transient Rentals will not have a lasting adverse impact on tourism in the City. The City's Plan recognizes the importance of tourism. Objective 1-1.3, "Planning for Industrial Development and Economic Base," of the land use element of the City's Plan provides, in pertinent part, the following: . . . . Tourism is the most significant component of the City of Key West economic base. The City of Key West is a major tourist destination. It's principal attributes are its historic character, warm climate, extensive shoreline, water resources, the coral reef system, abundant water related and water-dependent activities, and the ambiance of Old Town. The historic district contains many old structures which do not comply with the City's size and dimension regulations since many structures pre-date these local regulations. Realizing the significant contribution of Old Town, especially the unique character of its structures and their historic and architectural significance, and realizing the substantial impact of tourism to the economic base, the City shall direct considerable attention to its growth management decisions to maintaining the historic character of Old Town and preserving tourism as a major contributor to the City's economic base. Similarly, the City shall carefully consider supply and demand factors impacting tourism and the local economy to ensure the long term economic stability. The two policies adopted to implement Objective 1-1.3, Policies 1-1.3.1, "Mandatory Planning and Management Framework for Industrial Development," and Policy 1- 1.3.2, "Pursue Nuisance Abatement Standards and Criteria," provide for measures to deal with industrial development and not tourism. Reliance upon Objective 1-1.3 of the City's Plan by Petitioners' witnesses is misplaced. While the Objective does reflect the importance of tourism in the City, it does not provide any guidance concerning appropriate land uses which may be allowed throughout the City. There is no direction in the Objective concerning land uses which the City must maintain. Land uses are considered and dealt with in other provisions of the City's land use element. Additionally, the reliance upon Objective 1-1.3 of the City's Plan fails to give adequate weight to other provisions of the Plan. The Historic Significance of the City and "Old Town." The importance of the City's history is recognized throughout the Plan. Objective 1-1.3 of the City's Plan quoted, supra, points to the City's history and the role it plays in tourism. An area of the City has been designated as the Key West Historic District. The area is described in the Data Inventory and Analysis as the "physical manifestation of the 170 year existence of [the City]." Page 1A-11 of the Data Inventory and Analysis. Objective 1-2.3 of the Future Land Use Map Goal of the City's Plan deals with the importance of the Key West Historic District and an area which is largely located within the historic district known as "Old Town": OBJECTIVE 1-2.3: MANAGING OLD TOWN REDEVELOPMENT AND PRESERVATION OF HISTORIC RESOURCES. Areas delineated on the Future Land Use Map for historic preservation shall be planned and managed using a regulatory framework designed to preserve the form, function, image, and ambiance of the historic Old Town. The City's Historic Architectural Review Commission (HARC), in addition to the Planning Board, shall review all development proposals within the historic area designated by the National Register of Historic Places. The land development regulations shall be amended upon plan adoption to incorporate design guideline standards recently adopted by HARC. Development in any area of Old Town within and outside the HARC review area may impact the historic significance of Old Town. Any development plans for these areas shall be subjected to site plan review and shall be designed in a manner compatible with historic structures within the vicinity. While Objective 1-2.3 makes reference to the preservation of the "function" of Old Town, the Objective does not require that any particular "land use" which may exist in Old Town be preserved in perpetuity. The Objective and other provisions of the City's Plan addressing the historic significance of the City evidence a concern for the overall character of the area, not particular land uses. That character is described in, and adopted as part of, the Future Land Use Map of the City's Plan. See Policy 1-3.4.1 and Objective 1-3.4 of the City's Plan. Objective 1-1.5 of the Land Use element emphasizes the importance of maintaining and enhancing the appearance of gateway corridors into the City and the "major activiy centers such as Old Town." The Historic Preservation Element of the City's Plan, Chapter 1A, deals with historic resources, structures, and sites. No particular land use of these resources, structures, and sites, other than "housing," is mentioned. Throughout the history of the City, residents have to varying degrees rented their residences or parts of their residences on a short-term basis to tourists and other guests to the City. Most of the rentals involved the rental of portions of a residence while the owner of the property continued to reside in the rest of the property. Monroe County Commissioner Wilhelmina Harvey, Joe Crusoe, Robert Lastres, Vincent Catala, and Olivia Rowe, all long-term residents of the City, all testified about such rentals. The evidence failed to prove, however, that the types of rentals historically undertaken in the City constitute a part of the significant "history" of the City, at least not in the context of the historical significance of the City addressed in the City's Plan. Nor were the historical rentals testified to during hearing of the scale and scope of the rentals that now exist in the City. Additionally, to the extent that Transient Rentals are considered to be part of the significant "history" of the City, nothing in the land development regulation which is the subject of this proceeding absolutely prohibits such rentals. In fact, Transient Rentals of property for which a transient rental license has been obtained are not impacted by the land development regulation. Transient Rentals will, therefore, continue in the City. Nothing in the City's Plan dealing with the historical significance of the City requires that the City allow Transient Rentals of residential property to continue unregulated in the City. Regulation of the extent and location of Transient Rentals in the City does nothing to harm the historical significance of the City. In suggesting that Transient Rentals constitute part of the "history" of the City, and in particular, a part of the history of Old Town, the Abbe Petitioners have relied upon Policy 1-2.3.9, which provides, in part, the following: Policy 1-2.3.9: Retention of Historic Character and All Permanent Single Family Housing Units. The City desires to retain in perpetuity the existing character, density, and intensity of all historic sites and contributing sites within the historic district; and shall protect all the City's permanent single family housing stock citywide which was legally established prior to the adoption of the plan or a legal single family lot of record. Therefore, the City shall protect and preserve these resources against natural disaster, including fire, hurricane, or other natural or man-made disaster, by allowing any permanent single family units within the City, or other structures located on historic sites or contributing sites, which are so damaged to be rebuilt as they previously existed. . . . The reliance upon Policy 1-2.3.9 is misplaced. First, this Policy deals with all permanent single-family housing stock of the City and not just housing used for Transient Rentals. Secondly, the Policy does not provide for the protection of any particular use of single-family housing stock; it provides for the protection of the structures used as single-family housing. It recognizes the unique, historical construction of homes in the City and provides for their continued protection. The Impact of the City's Limited Land Mass and the City's Effort to Control Transient Rentals. As a relatively small island, the City has a limited land area and little opportunity for expansion without significantly altering the traditional character of the City. Because of the limited land area, maintaining adequate housing, including affordable housing, is a significant concern in the City. Residential property in the City has been used by tourists for accommodations for many years, long before the tourist boom now being experienced in the City. Transient uses of residential property were less organized and were less available than they are today, however. Often times, transient uses of residential property consisted of people renting out rooms in their residences to tourists. While the extent to which residential property has been used historically for tourist accommodations was not accurately quantified by the evidence, the evidence did establish that the use of residential property for Transient Rentals has significantly increased since the 1980s. As tourism has increased since the 1980s, there has been an increasing demand for tourist accommodations of all types. This demand for tourist accommodations, especially the demand for Transient Rentals, has adversely impacted the need and demand for residential housing in the City. In an effort to address the problem the Key West City Commission (hereinafter referred to as the "City Commission"), adopted a Growth Management Ordinance in 1985 mandating a ratio of Transient Rentals to residential units for the City. The intent of the 1985 Growth Management Ordinance was to maintain a suitable balance between tourist accommodations and housing for permanent residents of the City. In 1993 the City Commission adopted a dwelling unit allocation ordinance, or the "rate of growth ordinance," which was designed, at least in part, to achieve a balance between the demand for tourist accommodations and the need for permanent housing, including affordable housing. The 1993 rate of growth ordinance was subsequently incorporated into the City's Plan as Objective 1-3.12. Pursuant to the City's Plan, Transient Rentals are not to exceed 25 percent of single family units permitted annually. Note 2 to Policy 1-3.12.3 of the Plan provides that "[t]he number of transient units reflect a preference for preserving housing opportunities for permanent residents as opposed to transient residents since historical trends indicate an erosion of the permanent housing stock which is largely attributed to conversion of permanent housing units to transient housing." The City's Failure to Control Transient Rentals; The "50% Rule." In 1989, the City required that an occupational license be obtained by property owners using their property for both long-term rentals and Transient Rentals. These occupational licenses were not subject to review by the Department for consistency with the City's Plan and land development regulations. Occupational licenses are essentially a revenue raising requirement. The issuance of an occupational license does not constitute a zoning decision or otherwise constitute the approval of a land use. By the time the City adopted the 1993 rate of growth ordinance and the City's Plan, the number of occupational licenses issued for Transient Rentals had already exceeded the allocation of Transient Rentals which are allowable in the City. As a consequence, owners of residential property who desired to use their property for Transient Rental purposes have been unable to obtain an occupational license for such use. The lack of allowable Transient Rentals under the City's Plan did not, however, actually stop individuals from using their property for Transient Rentals. In addition to licensed Transient Rentals, there are approximately 647 unlicensed Transient Rental properties in the City. Properties owned by the Abbe Petitioners and Mr. Coleman are among these unlicensed Transient Rentals. The Abbe Petitioners who own Transient Rentals rather than manage them have occupational licenses issued by the State of Florida and Monroe County, but not a Transient Rental occupational license issued by the City. Mr. Coleman has a "nontransient" license issued by the City and occupational licenses issued by the State and Monroe County, but not a Transient Rental occupational license from the City. The number of unlicensed Transient Rental properties in the City has been contributed to, in part, by an interpretation of a former definition of "tourist and transient living accommodations" found in the City's land development regulations. The definition was adopted in 1986. Accommodations meeting this definition were prohibited in a number of zoning districts in the City. Accommodations which did not come within the definition were not prohibited in those districts. The 1986 definition of "tourist and transient living accommodations" (hereinafter referred to as the "Former Transient Definition"), was as follows: Tourist and transient living accommodations. Commercially operated housing principally available to short-term visitors for less than twenty-eight (28) days. Pursuant to this definition, any property used "principally" for visitors for less than 28 days constituted a tourist or transient living accommodation. There were some who advocated that the term "principally" meant that a residence had to be used as a 28-day short-term visitor accommodation for at least 50 percent of the year. Pursuant to this definition, any residence used at least 50 percent of the year for 28-day or less rentals is considered to constitute a "tourist and transient living accommodation." Conversely, if a residence was used less than 50 percent of the year for 28-day or less rental the property is not considered to constitute a tourist or transient living accommodation. This interpretation of the Former Transient Definition has been referred to as the "50% Rule." Pursuant to the 50% Rule, the owner of residential property in the City could rent the property for periods of less than 28 days without obtaining an occupational license for the property as long as the property was not rented more than half of the year. This rationale was assumed to apply regardless of where the property was located; even in land use districts where Transient Rentals were prohibited. The developer of Truman Annex, an area formerly owned by the Navy located to the immediate south of Old Town, advocated the 50% Rule in his dealings with the City in the early 1990s. The City's licensing department also issued "non- transient" licenses for residences which met the 50% Rule. Code enforcement citations against owners of residences used as Transient Rentals for less than 50 percent of the year without an occupational license were withdrawn. Despite the foregoing, the evidence at hearing in these cases failed to prove that the 50% Rule became an official "policy" of the City Commission. What the evidence proved was that the City took no action to adopt or reject the 50% Rule as an official position. The City simply failed to take any action to reject the 50% Rule and interpret the definition of tourist and transient living accommodations in a more reasonable manner. Given the City's efforts to limit Transient Rentals through the adoption of the 1985 Growth Management Ordinance, the 1993 rate of growth ordinance, and the City's Plan, it is clear, however, that reliance upon the 50% Rule is not reasonable. See findings of fact 39 through 45 of the Department of Community Affairs and City of Key West's Joint Proposed Recommended Order, which are hereby incorporated herein by reference. Finally, even if the 50% Rule did constitute the legislative intent of the City Commission in adopting the Former Transient Definition, it was eliminated by the City Commission in 1997 by the adoption of City Ordinance 97-20. City Ordinance 97-20 was adopted September 16, 1997, and was approved by Final Order of the Department dated November 19, 1997. The new definition of transient living accommodations adopted by City Ordinance 97-20, and still in effect today, is as follows: SECTION 5-21.2: DEFINITION OF TERMS TRANSIENT LIVING ACCOMMODATIONS. Any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings, which is 1) rented for periods of less than 30 days or 1 calendar month, whichever is less; or which is 2) advertised or held out to the public as a place regularly rented to transients. (Emphasis added). The current definition of transient living accommodations has eliminated the reference to properties "principally" used as a Transient Rental. The new definition includes any residence rented for any period of time, even once a year, as long as the rental is for a period of less than 30 days or one calendar month, whichever is less. The Former Transient Definition and, consequently, the 50% Rule, was also superceded by the adoption of the City's Plan. The City recognized the foregoing history in the ordinance which is the subject of this proceeding. In rejecting the notion that the City had adopted the 50% Rule as City policy, the City stated the following in the ordinance: . . . . In 1986, the City enacted former zoning code Section 35.24(44) which provided the following definition of a transient living accommodation "Commercially operated housing principally available to short-term visitors for less than twenty-eight (28) days." (This definition shall hereinafter be referred to as the "Former Transient Definition.") Some property owners and developers interpreted the Former Transient Definition to mean that an owner could rent his or her residential dwelling for less than half the year without the dwelling losing its residential status, and therefore without the need for City-issued transient license . . . . This interpretation went unchallenged by the City. . . . . . . . Therefore, the City of Key West intends by these regulations to establish a uniform definition of transient living accommodations, and to halt the use of residences for transient purposes in order to preserve the residential character of neighborhoods. . . . Based upon the foregoing, any reliance by Petitioners in these cases upon the 50% Rule as City policy is rejected. The City's Adoption of Ordinance No. 98-31. During 1997 and 1998 the City conducted workshops and held public meetings to consider and develop an ordinance regulating Transient Rentals. The workshops were conducted by City staff and were attended by representatives of essentially all those interested in the Transient Rental issue. An effort was made to achieve consensus on the issue. During these workshops, the 50% Rule and the history of Transient Rentals in the City were fully considered. In addition to the workshops conducted by the City, the City hired Frank Pallini with PRG, Real Estate Research and Advisory Services, Clearwater, Florida, to conduct an analysis of the economic impact of an ordinance limiting Transient Rentals. The report prepared by Mr. Pallini (hereinafter referred to as the "Pallini Report"), was submitted to the City on August 28, 1998. The Pallini Report and, consequently, the negative economic impact of the ordinance at issue in this proceeding was fully considered by the City when it adopted the ordinance. On June 2, 1998, the City Commission adopted Ordinance 98-16, which amended the definition of "transient living accommodations" in the City's land development regulations. Unlicensed short-term Transient Rentals were expressly prohibited by Ordinance 98-16 with the exception of four specified City land use districts. Those districts, referred to during the hearing as "gated communities," are all single, contiguous zoning district areas of the City with controlled access and which are governed by homeowners' or condominium associations. Truman Annex was one of the four excluded gated communities. Ordinance 98-16 was found by the Department to be inconsistent with the Principles on July 29, 1998, by Final Order DCA98-OR-135. The Department concluded that Ordinance 98- 16 was inconsistent with the Principles because it allowed the use of residential property as Transient Rentals in areas where, according to the Department, such rentals were prohibited under the City's Plan. The City initially challenged the Department's decision, but subsequently withdrew its challenge. The City subsequently repealed Ordinance 98-16. On November 10, 1998, the City adopted Ordinance 98-31 (hereinafter referred to as the "Ordinance"), which is the subject of this proceeding. The Ordinance contains the same provisions, except the exception for gated communities, that had been contained in Ordinance 98-16. The Ordinance is a "land development regulation" as defined in Section 380.031(8), Florida Statutes. It is, therefore, subject to review for consistency with the Principles by the Department. During the process of adopting the Ordinance the City recognized the confusion that the 50% Rule had caused concerning the intent of the City's Plan with regard to Transient Rentals. The City expressly dealt with the 50% Rule and rejected it as policy of the City. In particular, the Ordinance provides that the City's purpose in enacting the Ordinance was to phase out unlicensed transient uses of residential properties in land use zoning districts in which they are not permitted. This goal is accomplished by further modifying the definition of "transient living accommodations" adopted in 1997 in Section 5-21.2 of the City's land development regulations: Sec. 5-21.2 Definition of terms. Transient Living Accommodations. Or Transient Lodging. Any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings, which is 1) rented for a period or periods of less than 30 days or 1 calendar month, whichever is less; or which is 2) advertised or held out to the public as a place rented to regularly regularly rented to transients. , regardless of the occurrence of an actual rental. Such a short-term rental use of or within a single family dwelling, a two family dwelling or a multi-family dwelling (each also known as a "residential dwelling") shall be deemed a transient living accommodation. (Words struckstruck through were eliminated from the definition and underlined words were added). The Ordinance also adds Section 2-7.21 to the City's land development regulations explaining its action in modifying the definition of transient living accommodations and expressly prohibiting unlicensed Transient Rentals of less than 30 days or one calendar month, whichever is less. The Ordinance does not provide for a complete ban on Transient Rentals. On the contrary, Transient Rentals of properties for which transient occupational licenses have been issued by the City are expressly allowed by the Ordinance. The City estimated that 507 residential properties containing a total of 906 transient units hold such licenses. Under the Ordinance, these units may continue to be used as Transient Rentals. The Department's Review of the Ordinance. On November 24, 1998, the City transmitted a copy of the Ordinance to the Department for approval or rejection pursuant to Section 380.05(6), Florida Statutes. The Department conducted its review of the Ordinance following its customary procedures for review of land development regulations that impact an area of critical state concern. The review included a consideration of Chapter 28-36, Florida Administrative Code, including the Principles, the City's Plan, and the legislative intent of Chapter 380, Florida Statutes. The Ordinance was directed to Kenneth Metcalf, the person in the Department responsible for supervision of the City ACSC. Mr. Metcalf reviewed the ordinance and assigned it to the Department's Field Office with directions as to which issues the Field Office should address during its review. Following staff review, an evaluation was prepared addressing the Ordinance's consistency with the Principles. The evaluation was reviewed by Mr. Metcalf. After receipt and review of the evaluation, it was discussed at a meeting of Department staff. As a result of the meeting, it was recommended that the Secretary of the Department find the Ordinance consistent with the Principles. On January 5, 1999, the Department entered a Final Order, DCA98-OR-237, finding that the Ordinance was consistent with the Principles. The Department caused notice of the Final Order to published in the Florida Administrative Weekly. Petitioners' Challenge to the Ordinance. The Abbe Petitioners, Mr. Coleman and over 200 other owners of property in Truman Annex, and Mr. Rooney all timely filed petitions challenging the Department's Final Order pursuant to Sections 120.569 and 120.57, Florida Statutes, to the Department's Final Order approving the Ordinance. The petitions were filed with the Division of Administrative Hearings by the Department. The petitions were designated Case Nos. 99-0666GM, 99-0667GM and 99-1081DRI, respectively. Following dismissal of the petitions in all three cases, amended petitions were filed. Mr. Coleman's amended petition, filed on or about June 14, 1999, named Mr. Coleman as the only Petitioner remaining in that case. Standing. The parties stipulated to certain facts relating to the standing of the Abbe Petitioners and Mr. Coleman. In addition to stipulating to the facts found, supra, concerning the ownership and use of real property by the Abbe Petitioners and Mr. Coleman in the City, it was agreed that the Abbe Petitioners and Mr. Coleman have transient occupational licenses issued by the State of Florida and Monroe County for their City real property. The Abbe Petitioners and Mr. Coleman suggested in their proposed orders that it had been stipulated during the hearing that they have standing to initiate, and participate in, this proceeding. A close reading of the stipulation of the parties, however, fails to support this contention. What the Department, City, and the duPonts stipulated to were certain underlying facts; they did not stipulate to the ultimate finding. The Department, City, and duPonts did not stipulate to whether the Abbe Petitioners and Mr. Coleman will suffer an immediate injury as a result of the Ordinance. The evidence proved that, the Abbe Petitioners and Mr. Coleman do not have the legal right to use their properties as Transient Rentals. Neither a reasonable interpretation of existing land development regulations nor the 50% Rule legalizes such use. As a consequence, the Ordinance cannot have the effect of preventing the Abbe Petitioners and Mr. Coleman from using their properties for Transient Rental purposes because that is not a purpose for which they are legally authorized to use the properties anyway. The evidence also proved, however, that the City has allowed the Abbe Petitioners and Mr. Coleman to continue to use their properties as Transient Rentals, legally or not, and that, without the City's taking some action, the Abbe Petitioners and Mr. Coleman would continue to do so. As a consequence, the Ordinance will have the practical and real effect of preventing the Abbe Petitioners and Mr. Coleman from continuing to use their properties as Transient Rentals, to their economic detriment. The Abbe Petitioners, other than Neal Hirsh and Property Management of Key West, Inc., and Mr. Coleman have proved that they have standing to institute and participate in this proceeding. The duPonts proved that they have standing to participate in this proceeding. The City proved that its substantial interests were determined by the Department's decision in this matter. The City has standing to participate in this proceeding. Mr. Hirsh, Property Management of Key West, Inc., and Mr. Rooney failed to prove that they have standing to institute or participate in this proceeding. The Principles. Rule 28-36.003, Florida Administrative Code, contains the Principles: Strengthen local government capabilities for managing land use and development; Protection of tidal mangroves and associated shoreline and marine resources and wildlife; Minimize the adverse impacts of development of the quality of water in and around the City of Key West and throughout the Florida Keys; Protection of scenic resources of the City of Key West and promotion of the management of unique, tropical vegetation; Protection of the historical heritage of Key West and the Key West Historical Preservation District; Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities, Sewage collection and disposal facilities, Solid waste collection and disposal facilities, Key West Naval Air Station, The maintenance and expansion of transportation facilities, and Other utilities, as appropriate; Minimize the adverse impacts of proposed public investments on the natural and environmental resources of the City of Key West; and Protection of the public health, safety, welfare and economy of the City of Key West, and the maintenance of Key West as a unique Florida resource. In determining whether the Ordinance is consistent with the Principles, the Principles should be considered as a whole. No specific provision should be construed or applied in isolation from the other provisions. The Ordinance has little or no impact on those Principles that relate to the natural resources of, and public facilities in, the City. Those Principles include Rule 28- 36.003(1)(b), (c), (d), (f), and (g), Florida Administrative Code. Those Principles are considered neutral in the determination to be made in these cases. The determination of whether the Ordinance is consistent with the Principles is limited to a balancing of the Principles listed in Rule 28-36.003(1)(a), (e), and (h), Florida Administrative Code (hereinafter referred to as "Principles A, E, and H," respectively). Principle A: The Ordinance Strengthens the City's Capabilities for Managing Land Use and Development. In order for the Ordinance to be considered as strengthening the City's capabilities for managing land use and development, the Ordinance must be consistent with the City's Plan. The evidence proved that it is. The City's Plan contains various land use districts, all of which have certain allowable and prohibited uses. The districts established in the City's Plan and the relevant prohibition of transient lodgings are as follows: Coastal Low Density Residential Development district: prohibits "transient lodging and guest homes." Single Family Residential Development district: prohibits "transient accommodations" and "transient rental housing." Medium Density Residential Development district: prohibits "transient lodging and guest homes." Mixed Use Residential/Office: prohibits "transient lodging." Limited Commercial Development: Prohibits "transient residential land use activities." Historic High Density Residential Development and Historic Medium Density Residential Development districts: prohibit "transient residential uses, including guest homes, motels, or hotels." Historic Residential Commercial Core 2: prohibits "transient residential uses." Historic Residential/Office district: prohibits "transient lodging or guest houses" unless previously licensed. Conservation, Military, and Public Services districts: prohibit transient uses. The following districts established by the City Plan allow Transient Rentals: Salt Pond Commercial Tourist: allows "motels, [and] limited scale tourist facilities." General Commercial Development: allows "transient lodging including hotels and motels, timesharing or fractional fee residential complexes, and other transient quarters." Mixed Use Planned Redevelopment and Development districts: uses are determined, not by the City's Plan, but the land development regulations and development approvals for these large scale development districts. Historic Residential Commercial Core 1 and 3 districts: allow "transient residential accommodations" and "tourist accommodations." Historic Neighborhood Commercial: allows "transient rental accommodations" in HNC-1 and HNC-3 districts as long as they do not displace permanent resident housing and "transient accommodations" in HNC-2 districts. Historic Commercial Tourist: allows "hotels, motels, and/or transient lodging facilities." The most reasonable interpretation of the restricted and allowable land uses for the land use districts established under the City's Plan is that references to "transient rental accommodations," "transient residential uses," "transient rental housing," and "transient lodging facilities" are intended to include Transient Rentals. One other district is established by the City's Plan which is relevant to this matter: Historic Planned Redevelopment and Development districts (hereinafter referred to as "HPRD" districts). Land uses allowable in an HPRD district are to be established by land development regulations. The only HPRD district in the City is currently the Truman Annex. Truman Annex was being developed at the time the City's Plan was adopted. While the City's Plan provides that the specific requirements for any HPRD district is to be provided by land development regulations, Policy 1-2.3.4 of the City's Plan does provide, among other things, that the regulations are to "[a]void replacement of permanent housing stock with transient lodging." The Ordinance, and its application to Truman Annex, is consistent with this direction of the City's Plan. Truman Annex was developed as a development of regional impact, or "DRI." As a DRI and HPRD district, land uses in Truman Annex are subject to development agreements between the City and the developer of Truman Annex. Those agreements have been amended 12 times. The Truman Annex development agreements allow the development of "housing units," which included both transient and non-transient uses. "Housing units" were further broken down into the following types: "affordable," "hotel transient housing units," "time share transient housing units," and "other residential housing units." "Affordable" and "other residential housing units" are intended to be "residential" development in the context of the Truman Annex development agreements; "hotel transient housing units" and "time share transient housing units" are intended to be Transient Rentals in the context of the Truman Annex development agreements. Given the distinction between "transient" housing units and other uses in the Truman Annex development agreements, no approval of Transient Rentals of "affordable" or "other residential housing units" was contemplated or allowed by the City. The Truman Annex development agreements and the HPRD district land development regulations do not authorize the use of "affordable" or "other residential housing units" in Truman Annex as Transient Rentals. The Ordinance is, therefore, consistent with the Truman Annex development agreements and the HPRD district land development regulations. The Ordinance, if nothing else, clarifies the state of the law with regard to which Transient Rentals are allowed and which are prohibited in the City. The Ordinance eliminates any lingering confusion caused by the failure of the City to reject the 50% Rule in all circumstances and to properly interpret the Former Transient Definition. The suggestion of the Abbe Petitioners that the 50% Rule was adopted as a part of the City's Plan because it existed when the City's Plan was adopted is not supported by the evidence. Again, the 50% Rule was never adopted as the official policy of the City; it simply went unchallenged by the City. In fact, the 50% Rule was allowed to be advanced by some despite the adoption of the City's Plan and its prohibition against Transient Rentals in the land use districts described, supra. Nor does Objective 1-1.3 of the City's Plan support the Petitioners' position in these cases. That Objective does not require that any particular land use be continued in the City. Nor do those provisions of the City's Plan dealing with the historic significance of the City detract from the conclusion that the Ordinance is consistent with the City's Plan. The provisions dealing with the historic significance of the City are concerned with the significance of structures which have been a part of the history of the City's existence. The City's Plan also evidences a desire to preserve historically significant housing, not any particular use of those structures. Based upon a preponderance of the evidence, the Ordinance is consistent with Principal A. Principle E: Protection of the Historic Heritage of the City and the Key West Historical Preservation District. Principle E requires a consideration of significant events in the history of the City, famous visitors and residences of the City throughout its history, the architectural history of the City, and other aspects of the City's character. This conclusion is supported, in part, by Rule 28-36.003(2)(e), Florida Administrative Code: (e) Historic Resource Protection. A management and enforcement plan and ordinance shall be adopted by the City of Key West providing that designs and uses of development reconstruction within the Key West Historical Preservation District shall be compatible with the existing unique architectural styles and shall protect the historical values of the District. The City of Key shall maintain an architectural review board established pursuant to Section 266.207(2), Florida Statutes. . . . . The evidence in these cases proved that the Ordinance will preserve and ensure the preservation of the City's historical significance. It will do so by limiting the destruction of the character and community of the City, as discussed, infra. Principle E does not support a conclusion, as argued by Petitioners, that Transient Rentals have played such a large part in the history of the City that they should not be regulated in the manner the Ordinance provides for. Petitioners' argument also fails because the Ordinance only regulates Transient Rentals, it does not eliminate historical Transient Rental uses. The City's Plan also fails to support Petitioners' argument. The City's Plan does not address, or require, the continuation of "historical" land uses such as Transient Rentals. Based upon a preponderance of the evidence, it is concluded that the Ordinance is consistent with Principal E. Principle H: Public Health, Safety, and Welfare and the Economy of the City. Principal H requires a consideration of the public health, safety, and welfare, and the economic viability of the City. These factors are inextricably tied to the tourist industry of the City. Without the tourist industry, the City's economy would likely falter to the detriment of the public health, safety, and welfare. A large part of what makes the City attractive, to tourist and residents alike, is the unique community atmosphere and the historical character of the City. The health of the tourist industry in the City is, in part, caused by the City's vibrant and viable communities. An essential characteristic of that vibrancy is the fabric of the people that inhabit the City and the interactions of those inhabitants among themselves and with tourists. As long as tourists continue to enjoy the unique character of the City, they will continue to enjoy their experience and will continue to come back to the City. If that unique character is significantly diminished or lost, so too will be the tourist industry. A number of factors threaten the quality of the tourist experience in the City and, therefore, the continued viability of the tourist industry. Those factors include the shortage of available and affordable housing, a shortage of labor to serve the tourist industry, crowding, and conflicts between tourist and residents of the City. All of these factors are related and must be adequately addressed in order to protect the economic viability of the City. Left unchecked, tourism in the City will likely be seriously impacted. Tourism requires a large labor force to provide the services which tourist expect. The labor force must provide lodging, food, retail sales, amusements, and other services. Indirect services, such as fire protection, police, and others must be provided for also by the labor force. The labor force necessary to serve a tourist industry must be provided with adequate housing. The ability to meet this need must be balanced with the need to provide adequate accommodations to the tourists who visit a destination. The need to balance these competing interests is an even greater challenge in the City because of the existing shortage of available residential property in the City and the lack of viable measures which can be taken to address the shortage. The City's shortage of residential property is caused by the fact that the supply of available land in the City is so restricted it simply cannot meet the demand. The problem caused by the lack of available land is exacerbated by restrictions on development, including those imposed by the rate of growth ordinance and the City's Historic Architectural Review Commission. Actions of the City's Historic Architectural Review Commission cause increases in the cost of redeveloping property and limits the types of redevelopment that may be pursed. Alternatives, like housing the labor force some distance from a tourist destination and providing transportation to bring the labor force into the destination, cannot be utilized in the City to meet the demand for housing for its labor force. The unavailability of adequate land is a problem throughout the length of the Florida Keys. Tourist are now demanding a variety of accommodations. The national trend has seen a increase in the demand for accommodations other than the traditional hotel or motel. Many tourists desire accommodations that include multiple rooms, including kitchen facilities. Transient Rentals have become increasingly available in order to meet part of this demand. Hotels and motels have also begun to offer efficiency- like units. Transient Rentals have also increased because of 1986 changes in federal income tax laws. Those changes have resulted in more owners of vacation housing turning their properties into Transient Rentals in order to offset the cost of the properties. The availability of Transient Rentals has significantly increased in scope and magnitude over what was historically experienced in the City. In addition to the impact on the types of accommodations desired by tourist and the tax benefits of converting property to Transient Rental use, tourism itself has increased dramatically during the past 30 years, further increasing the demand for tourist accommodations. According to a report on housing in the City known as the "Shimberg Report," from 1990 to 1995 the number of housing units decreased from 12,221 to 11,733, a decrease of 488 units. Despite this decrease, the number of households in the City during the same period increased from 10,424 to 11,298, an increase of 874. Economically, a commercial-type use, such as Transient Rentals, will usually be more profitable than a residential use of the same property. The City has experienced this economic impact. As a result of the higher economic value of using a residence as a Transient Rental, tourist use of residential property have in many cases displaced the residential use of property. The demand for Transient Rentals and the need to provide for housing for the labor force necessary to serve the City's tourist industry involve competing and inconsistent goals. In order to meet the need for Transient Rentals in the City, it has been necessary to convert housing formerly used to house the City's residents, including those who make up the labor force. The resulting decrease in residential housing and the increase in Transient Rentals also result in crowding, with members of the labor force in the City being required to share available space with tourists. Crowding results in unacceptable densities of use and increased user conflict. The resulting decrease in residential housing caused by the increase in Transient Rental use in the City has not only resulted in permanent residents leaving the City's communities, but in their departure from the City and the Florida Keys altogether. In addition to the negative impacts on housing, a tourist destination can become so popular that the very quality of the location is negatively impacted or even destroyed. John Pennekamp State Park, located in the northern part of the Florida Keys, has been so successful at attracting visitors that it has been negatively impacted. Although tourism has not reached a point where it is destroying the unique character of the City, the very thing that attracts many visitors to the City, it has the potential of reaching that stage without adequate planning by the City. Shopping by residents in the "downtown" area of the City has already been displaced by shopping areas located away from Old Town. Dr. Virginia Cronk testified during the hearing of these cases concerning what can happen to a community's identity if tourism becomes too dominate. The City is already showing some signs of the negative impact tourism can have on a community. As more stress from overcrowding is placed on the City's communities, the very base of the City's tourist industry is impacted. Not only will the labor force be moved out, the community atmosphere of communities that is so attractive in the City may be diminished or even destroyed. As in many other tourist destinations, the activities of tourists and permanent residents the City are often incompatible. This is especially true in the City because much of what attracts tourists to the City is associated with the City's residential neighborhoods. Part of the tourist destination of the City is its neighborhoods. The type of visitors attracted to the City over the last decade has changed significantly. Many tourists now come to "party" on Duval Street, often late into the night and the early morning hours. The partying often continues back to, and at, the accommodations that the tourists utilize. Many tourists make every effort to maximize their "fun time" by staying up late and playing hard. Because tourists are on vacation, they are not as concerned about when they go to sleep and when they enjoy the City. They are not required to keep any particular schedule, so they are more at liberty to stay up into the early morning hours. Because tourists are only in the City for a short time, they are also less concerned with getting along with their neighbors. They want to have a good time and assume that everyone around them is there for the same reason. Permanent residents of the City are much like permanent residents everywhere. The adults are employed during the day and their children attend school. They go to bed and rise earlier than tourists generally do. Because of the differences in the goals of tourists and permanent residents, inevitable conflicts arise when tourists and residents mix. Unless those conflicts are controlled in the City, permanent residents will be forced out, threatening to end one of the very features that has made the City so attractive to tourists: the unique community atmosphere and historical character of the City. Dr. Cronk explained the different social forces which impact the behavior of tourists and residents. Tourists are simply not subject to the same informal social controls that residents are. As a result, the behavior of tourists often comes into conflict with the behavior normally associated with a true community neighborhood. Because the behavior of tourists is not subject to the same informal social controls as residents, residents must turn increasingly to more formal social controls such as the police and private security forces. These controls often do not work and are more expensive than the informal social controls normally associated with neighborhoods. Witnesses during the hearing of these cases gave examples of clashes between permanent residents and tourists. Those incidents are fully reported in the transcript of the hearing of this matter and are summarized in the proposed orders filed by the Department and City, and the duPonts. The need to resort to more formal social controls, such as the police and private security was also explained by these witnesses. The credible testimony of Ms. Rowe, Margaret Domanski, and Martha duPont accurately describe the types of conflicts the Ordinance is intended to reduce. The impact which the conversion of residential properties to Transient Rentals has on affordable housing in the City is difficult to measure. The Department has suggested that it is significant. Petitioners argue that there is no impact and that, even if there were some impact, affordable housing is not one of the Principles and, therefore, should play no part in the review of the Ordinance. The principles which apply to Monroe County require that Monroe County "make available adequate affordable housing for all sectors of the population of the Florida Keys." Section 380.0552(7)(j), Florida Statutes. This principle is consistent with the legislative intent set out in Section 380.0552(2)(d), Florida Statutes, that a local government provide affordable housing in close proximity to places of employment in the Florida Keys. The Principles applicable to the City ACSC do not contain a principle specifically requiring that affordable housing be maintained. The lack of a specific requirement concerning affordable housing does not, however, support a conclusion that affordable housing should be ignored when applying the Principles to land development regulations adopted by the City. On the contrary, Principle H is broad enough to require a consideration of affordable housing. After all, any consideration of the "public health . . . welfare, and economy" of the City, necessarily must include a consideration of affordable housing. Without adequate housing for all sectors of the City's population, the public health and welfare of the City cannot be maintained. Nor can the economy of the City survive without adequate housing for all segments of the work force. "Affordable housing" does not mean housing for the poor. "Affordable housing" is defined in terms of the percentage of a household's income spent on housing which is considered "affordable" by very-low income, low-income, and moderate-income persons. What is considered affordable is based upon the median household income of a community's very-low income, low-income, and moderate-income population. The approximate median household income of City residents is $49,000.00. In order for the City to be considered to have adequate "affordable housing," persons making between 80 and 120 percent of the median household income, or $39,000 to $59,000, should be able to afford a house. The average value of a single-family house in the City, however, is $300,000, well above the price affordable to persons with a household income of between $39,000 and $59,000. Because of the disparity between the average price of homes and the low median household income of City residents, an enormous burden is placed on residents to fund any type of housing. As much as 30 percent of residents' income must be spent on housing. The number of residents spending at least 30 percent of their income on housing increased significantly between 1990 and 1995. That number is likely to continue to increase. As the cost of residential property increases, the economic burden on residents for housing continues to increase. The cost of residential property is increasing, and will continue to increase, because of the conversion of residential property to Transient Rentals. If the City takes no action with regard to balancing tourist accommodations, particularly Transient Rentals, and housing for its residents, the ability of residents to afford any housing will continue to be negatively impacted. Even though it is doubtful that the Ordinance will increase the ability of residents to actually own their own home, there is no doubt that their ability to afford any housing will continue to be negatively impacted if Transient Rentals continue to displace the use of property for residential purposes. In adopting the Ordinance, the City recognized the negative impact that tourism is having on the City: . . . the transient use of residential dwellings has had deleterious consequences in the residential neighborhoods of Key West; and . . . the increase in the conversion of residential dwellings to transient use is, in part, responsible for the affordable housing shortage in Key West, a shortage confirmed in a study of the City by the Shimberg Center of the University of Florida . . . The finding concerning affordable housing is consistent with the City's Plan. Objective 3-1.1 and Note 2, Policy 1-3.12.3 of the City's Plan. In adopting the Ordinance, the City took a reasonable step to address the problems associated with tourism. The Ordinance, while causing an initial negative impact to the economy, will promote the protection of residential neighborhoods from unnecessary intrusion, promote affordable housing, and ultimately ensure the continued viability of the tourist economy of the City. By limiting the intrusion of Transient Rentals into most residential neighborhoods in the City, the Ordinance will limit the intrusion of negative tourist activities into those neighborhoods. Those negative impacts testified about by Ms. Rowe, Ms. Domanski, and Ms. duPont will be, in most cases, prevented or at least reduced. The reduction of tourist intrusions into neighborhoods will also ensure that the unique community character of the City remains viable. The Ordinance will go a long way in keeping the charm of the City's neighborhoods intact for tourists and residents both. The Ordinance goes a long way in planning for tourism in the City. Reducing economically competitive uses of property in the City, such as the use of property for Transient Rentals, will ensure that the scarce supply of residential property is not further reduced. Stabilizing the supply of residential property, while not eliminating cost increases, will at least eliminate the increase in housing costs associated with the conversion of residential property to Transient Rental use. Eliminating the unlicensed use of Transient Rentals, which the Ordinance will do, will have the effect of actually returning some residential property to the supply of property available to residents. By prohibiting the use of residential properties as Transient Rentals, the total properties in the City available for housing, including for long-term rentals, for permanent residents, will increase. As supply increases, the demand for all housing, including to a very limited extent affordable housing, will be better met. By reducing the drain on residential properties in the City, the strain on the work force necessary to serve the tourist economy of the City will also be reduced. The City recognized and accepted the fact that the Ordinance will have an initial negative impact on the economy of the City. The Pallini Report was commissioned by, and considered by the City Commission. There will be an immediate reduction in revenues from unlicensed Transient Rentals that comply with the Ordinance and the income associated with providing services to those Transient Rentals. Some tourists who would otherwise select the City as their vacation destination will go elsewhere. Unlicensed Transient Rentals (taxed and untaxed), however, make up no more than ten percent of the total accommodations available in the City. It is estimated that the Ordinance will result in a loss in gross sales of $31 million, a loss in personal income of $9 million, and a loss in City revenues annually of $260,000. It is also estimated that there will be a loss of approximately 500 jobs associated with unlicensed Transient Rentals. These estimates are the "worst case" scenario figures. Actual losses will likely be somewhat less. The losses associated with the Ordinance will, however, not be long-term. Gradually, the tourist industry will adjust to the decrease in tourist accommodations and the negative impact on the economy. Some tourists will adjust the time of year they come to the City, resulting in greater tourist business during traditionally slower times. Persons who experience unemployment as a result of the Ordinance will also very likely find other employment relatively quickly because of the tight labor market in the City. The negative economic impacts to the City caused by the Ordinance should not last longer than three to five years. After that time, the economy will adjust. The overall impact of the Ordinance will be to help balance the need to provide tourist accommodations and the need to protect the charm of the City and the ability of the City to provide a work force. Protection of residential neighborhoods in the City comes within the City's responsibility to provide for the public health, safety, and welfare of its citizens, and is a necessary consideration in providing for the economic well- being of the City. Based upon a preponderance of the evidence, the Ordinance is consistent with Principal H. Truman Annex. It has been argued by Mr. Coleman that the application of the Ordinance to the Truman Annex supports a conclusion that the Ordinance is not consistent with the Principles. The evidence failed to support this contention. Truman Annex is located within walking distance of most tourist destinations in the City. The character and atmosphere of Truman Annex makes it an attractive tourist destination in itself. The "Little Whitehouse," a house utilized by President Harry Truman, is located within Truman Annex as is a tourist destination itself. While the Truman Annex is located in an area conducive to use as tourist accommodations, nothing in the City's Plan or land development regulations, the development orders associated with Truman Annex, the historic use of Truman Annex, the public health, safety and welfare, or the continued economic viability of the City depends upon such use. Truman Annex consists of residential housing and tourist accommodations, as well as some commercial facilities. Those activities are, however, largely buffered from each other. Most of the commercial activities are located in the western portion of Truman Annex. The residential housing is located primarily in the eastern portion of Truman Annex. Truman Annex without Transient Rentals constitutes appropriate planning by the developer of Truman Annex and the City. The Ordinance, even when applied to Truman Annex, constitutes an appropriate effort of the City to manage land uses and development. The Ordinance, even when applied to Truman Annex, will protect the historic heritage of Truman Annex and, more importantly, the City. Finally, the evidence proved that the application of the Ordinance to Truman Annex will not adversely impact the public health, safety, welfare, or the long-term economy of the City. Consideration of the Principles as a Whole. The evidence in these cases supports a conclusion that the Ordinance has no or little impact on most of the Principles, except Principles A, E, and H. The evidence proved that the Ordinance is neutral with regard to the other Principles. When Principles A, E, and H are considered individually and together, the evidence proved that the Ordinance is consistent with Principles A, E, and H. The Ordinance constitutes an effort of the City to manage land uses and development in the City, consistent with Principal A. The Ordinance will also help to protect the historic heritage of the City by preserving the character of the City's neighborhoods and, as a result, will preserve the tourist industry, consistent with Principal E. Just as clearly, the Ordinance will enhance the safety, health, and welfare of the residents of the City. Finally, the Ordinance is consistent with Principal H because it will benefit the public health, safety, and welfare of the City by protecting neighborhoods from the intrusion of tourists, reducing the impact of the conversion of residential housing for Transient Rentals, and ensuring the continued character of the City. While there will be an initial negative impact on the economy of the City as a result of the Ordinance, ultimately the Ordinance will have a positive impact on the economy of the City due to the positive impact on the City's tourist industry which will result from the regulation of Transient Rentals. Abbey Petitioners' Rule Challenge, Constitutional Issues, and Other Issues. In the Amended Petition for Administrative Hearing (hereinafter referred to as the "Amended Petition") filed by the Abbe Petitioners, the Abbe Petitioners attempted to challenge pursuant to Section 120.56(4), Florida Statutes, portions of the Final Order of the Department as an unpromulgated rule. The Amended Petition was not, however, filed consistent with the requirements of Section 120.56(4), Florida Statutes. This challenge was required to be filed in a separate petition filed solely with the Division of Administrative Hearings (hereinafter referred to as the "Division") and not through an amendment to a petition originally filed with the Department which was subsequently filed by the Department with the Division with a request that the Division hear the matter. Additionally, even if the issue were properly before the Division, the evidence in this case failed to prove that the statements in the Final Order have any application other than to the Ordinance. Therefore, those statements are not "agency statements of general applicability." The statements are not, therefore, "rules" as defined in Section 120.52(15), Florida Statutes. The Abbe Petitioners also raised issues in the Amended Petition other than the consistency of the Ordinance with the Principles. Other than the question of the consistency of the Ordinance with the Principles, the evidence failed to support the Abbe Petitioners' argument that the issues raised in the Amended Petition are relevant to this matter.
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 approving City of Key West Ordinance 98-31 as consistent with the Principles for Guiding Development of Rule 28-36.003(1), Florida Administrative Code. DONE AND ENTERED this 31st day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 31st day of August, 2000. COPIES FURNISHED: Jeffrey M. Bell, Esquire Ritter, Chusid, Bivona & Cohen, LLP 7000 West Palmetto Park Road, Suite 400 Boca Raton, Florida 33433 Jerry Coleman, Esquire Post Office Box 1393 Key West, Florida 33041 John F. Rooney 208-10 Southard Street Key West, Florida 33040 Andrew S. Grayson, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Robert Tischenkel, City Attorney City of Key West Post Office Box 1409 Key West, Florida 33041 David J. Audlin, Jr., Esquire Eaton Street Professional Center 524 Eaton Street, Suite 110 Key West, Florida 33040 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol A. Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue for determination is whether the proposed Indiantown Cogeneration, L.P. (ICL) Project site is consistent and in compliance with existing land use plans and zoning ordinances of Martin County and Okeechobee County, Florida. See Section 403.508(2), Florida Statutes. No party to the proceeding disputes that the site is consistent and in compliance with the plans and ordinances in effect on December 21, 1990, when the application was filed.
Findings Of Fact ICL published notices of this land use hearing on June 15, 1991, in The Stuart News, on June 19, 1991, in The Indiantown News, and on June 16, 1991, in The Okeechobee News. Notices of this hearing were published by the Department of Enviromental Regulation in the Florida Administrative Weekly on June 28, 1991. ICL mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. The Applicant, ICL, posted a notice of this hearing at the proposed site. ICL proposes to construct and operate a 330 Mw cogeneration facility which captures waste heat from electrical generation to produce steam for industrial processes. The facility will burn pulverized coal to generate electricity for sale to Florida Power & Light Company (FPL) and supply up to 225,000 pounds per hour of steam for drying operations at the adjacent Caulkins Citrus Processing plant. Steam generation will be accomplished by means of a pulverized coal boiler. The boiler will be of an outdoor natural-circulation type in which coal will be mixed with air and ignited. Electricity will be generated by passing steam produced by the boiler through an extraction-condensing turbine generator. Sulfur oxide and nitrogen oxide compounds and particulates will be removed from the boiler exhaust gases using various removal systems. Coal will be delivered by trains arriving from the north. A rail loop and coal unloading, handling and storage facilities will be constructed onsite. Ash will be temporarily stored in onsite silos before being removed from the site. A new site access road will be constructed along the western and southern boundary of the site to provide access to State Road 710 and West Farm Road. A railroad spur across the adjacent Florida Steel plant site will connect the site to the CSX railroad. The proposed project will include a water pipeline that will extend 19 miles southeast from Taylor Creek/Nubbin Slough in Okeechobee County to the facility site. An intake structure will be constructed at Taylor Creek/Nubbin Slough to pump water to the plant site. To distribute electricity generated, the ICL facility's electrical switch yard will connect to an existing FPL electrical transmission line which crosses the northern portion of the Project site. Site for Indiantown Cogeneration Project The site for the proposed Indiantown Cogeneration Project is a 220 acre tract which lies approximately 20 miles west of Stuart, three miles northwest of Indiantown and nine miles east of Lake Okeechobee. To the north of the Site are the Caulkins Citrus Processing Plant and a vacant Florida Steel Corporation plant site. Both of these facilities border State Road 710 and the CSX Railroad. The proposed corridor for the cooling water pipeline to serve the Project is within the existing CSX Railroad right-of-way which parallels State Road 710, running southeast from the intake structure location in Okeechobee County to the site. The permanent right-of-way for the pipeline is to be located within this corridor. Consistency and Compliance of the Project Site with Local Land Use Plans of Martin County The proposed site is designated for "Industrial" use on the Land Use Map adopted by the Martin County Board of County Commissioners (BOCC) as part of its 1990 Comprehensive Growth Management Plan (Martin Plan). The Martin Plan was the local land use plan in effect in Martin County on the date ICL filed this SCA. This Plan encouraged future development of industrial uses, including cogeneration facilities, to occur under a planned unit development industrial zoning classification. The evidence at the hearing established that the Project is consistent and in compliance with the Martin Plan in effect on the date ICL filed the SCA. During the PUD(i) rezoning process discussed below, the proposed project was also reviewed by Martin County for consistency with the other policies of the Martin Plan. The project, as proposed, was found to be consistent with this Plan. On July 9, 1991, the Martin County BOCC adopted a land text amendment (ICL Exhibit 9), which added steam/electricity cogeneration plants as permitted uses within areas designated Industrial. The Department of Community Affairs has made no determination as to the amendment's compliance or non-compliance with Chapter 163 and specifically reserves its responsibility to review the amendment pursuant to its statutory authorization. Consistency of the Project Site With Martin County Zoning Regulations The Project is consistent and in compliance with the industrial zoning of Martin County that was in effect for the Project Site on December 21, 1990, the date ICL filed its SCA. On July 23, 1991, the BOCC granted petitions by ICL to change the zoning for the proposed site from M-3 and M-1, industrial, to Planned Unit Development (industrial) or PUD(i); to grant a height exception for structures higher than 60 feet; and to grant an advertised conditional use for utilities. All parties present throughout the land use hearing have stipulated that this zoning change and related approvals do not affect adversely the use of the site as the location for the proposed power plant while still protecting the public interest under the applicable land use plan and zoning ordinances of Martin County. The later-adopted PUD(i) zoning criteria for the Project are contained in a document titled "Indiantown Cogeneration Project Planned Unit Development Zoning Agreement" between ICL, the current property owners, and the Martin County BOCC, dated July 23, 1991. The PUD Agreement establishes certain conditions and standards upon which construction and operation of the ICL project may be undertaken at the proposed site. The Agreement incorporates and references various other local regulations with which a project at this site must comply. The PUD(i) zoning agreement also recognizes that final approval for the project will be obtained under the Florida Electrical Power Plant Siting Act, Chapter 403, Part II, Florida Statutes, and that the final development plan of approval contemplated by the Agreement would be obtained through this certification process. The PUD(i) Agreement provides that ICL shall have the right to develop the project in accordance with applicable laws, ordinances and regulations; with the provisions and requirements of the PUD(i) Zoning Agreement; and with the Preliminary and Final Development Plans. Exhibit D to the PUD(i) Zoning Agreement is a Preliminary Development Plan for the ICL project. This exhibit provides a conceptual layout for the proposed project that is subject to modification based on detailed site planning and engineering required as part of the certification of the Project in conjunction with the final development plan approval (site certification process). The Project, as proposed in the SCA, is consistent with this Preliminary Development Plan. A development schedule for the proposed project is established in Exhibit E to the PUD(i) Agreement. This timetable contemplates and incorporates site certification by the Governor and Cabinet under the Florida Electrical Power Plant Siting Act. ICL will be able to develop the Project proposed in the SCA consistent with this timetable. Twenty-two (22) Special Conditions are established for the Indiantown Cogeneration Project in Exhibit F to the PUD Agreement. ICL has committed to meet all of the Special Conditions and its design, as developed to date and presented in the site certification application, is consistent and in compliance with all twenty-two Special Conditions. The special conditions are: Special Conditions 1 and 4 require that certain precautions be taken in the event that archaeological artifacts or endangered plants and animals are discovered on the site. A $1 million Community trust program is to be created by ICL to benefit projects in the Indiantown community, under Special Condition 2. Special Condition 8 requires ICL to encourage Project employees to live and become active in the Indiantown Community. Under Special Condition l0, ICL is to make employment applications available in the Indiantown area during periods of significant hiring. Special Condition 3 provides that ICL is solely responsible for obtaining necessary drainage permits from the South Florida Water Management District and that Martin County has no responsibility for funding of Project drainage improvements. With regard to special Condition 5, the Department of Community Affairs concurs that the evidence at the land use hearing established that the Project at this location is consistent and in compliance with local land use plans and zoning ordinances in effect as of December 21, 1990. Special Condition 6 prohibits disposal of wastewater filter cake at the Martin County landfill. Under Special Condition 7, ICL agrees not to haul fill to or from the Site without Martin County approval. This is in compliance with the Excavation and Fill provisions of the Martin County Code, Sections 33-804, 805, 806, and 809. A hazardous waste management plan, consis- tent with a hazardous waste management plan attached to the Zoning Agreement, is required by Special Condition 8. Landscaping along the access road and around the administration buildings and parking areas is required by Special Condition 10. This condition satisfies the requirements of the Martin County Landscape Code, Chapter 23, Article III of the Martin County Code. Special Condition l3 requires that plant operations not cause unreasonable levels of sound to reach the boundary of any existing adjacent residential district. ICL is to provide general public notice of any planned steamblows. No quantitative noise standards are established by Martin County. Special Condition 14 establishes performance standards which are consistent with the provisions of Section 33-581.44(G) and (H) of the Martin County Code. The performance standards establish limits on the density of smoke; size of particulates; emissions of odors, dust and dirt, and of obnoxious gases and fumes; sewage disposal; set-backs for unenclosed buildings; fire protection measures; building heights; vegetative buffers adjacent to S.R. 710; and Project lighting. Several of these special performance standards provide additionally for compliance to be shown as part of the final certification order under the Florida Electrical Power Plant Siting Act. Special Conditions 15 and 17 provide that potable water and wastewater services for the Project will be supplied by the Indiantown Company. Final agreements for the provisions of these services are to be provided as part of the final development plan approval. Special Condition 16 provides for protection of upland and wetland preserve areas as shown on the approved development plans. This condition complies with the upland and wetland preservation policies of the Martin County Comprehensive Growth Management Plan. The size and dimension criteria of project facilities are governed by Special Condition 18. Special Condition 19 requires that soil erosion and sedimentation be controlled during construction through such practices as wetting, seeding or sodding of exposed areas. Under Special Condition 20, shoulders of Project roadways are to be stabilized. Pursuant to Special Condition 22, a south-bound turn lane on S.R. 710 is to be constructed at the entrance road to the Project. Permitted uses on the site are set out in Special Condition 23, allowing uses including pulverized coal electric generating unit, coal handling and storage facilities, rail trans- portation facilities, and other associated facilities. The uses permitted are described in greater detail in attachment 4 to that Exhibit F. The ICL Project, as designed, committed to by ICL, and proposed in the site certification application, is consistent and in compliance with the foregoing provisions of the PUD(i) Zoning Agreement. Project Compliance with Martin County Height Limitations On July 23, 1991, the Martin County BOCC adopted a special exception to allow heights in excess of 60 feet for facilities associated with the Indiantown Cogeneration Project. The project, as proposed, is consistent and in compliance with the provisions of this height exception. The PUD(i) Zoning Agreement in Special Condition 13 establishes maximum heights of the various project facilities; and the proposed Indiantown Cogeneration Project, as designed, committed to by ICL and proposed in the site certification application, complies with all of them. Consistency and Compliance of the Water Pipeline, Rail Spur and Site Access Road with Local Land Use Plans and Zoning Ordinances of Martin and Okeechobee Counties The location and construction of the cooling water pipeline is consistent with the policies of the Martin County Comprehensive Growth Management Plan that protect the residential quality of life and prevent impacts to tree canopies and soil erosion from such uses. The Martin County Zoning Code provides, in Chapter 35, Article II, that normal linear distribution facilities, such as the proposed water pipeline, are excepted from the definition of those utilities that are treated as advertised conditional uses. The water pipeline is, therefore, a permitted use in all zoning districts in Martin County. The Electric Utility Element of the adopted Okeechobee County Comprehensive Plan (Okeechobee Plan) provides that support facilities needed to provide electric utility service are deemed consistent with that Plan and are an allowed use in all land use categories. The water pipeline and intake structure are necessary support facilities to the Indiantown Cogeneration Project and, therefore, are consistent with the Okeechobee Plan. The Okeechobee County zoning ordinance allows, in any zoning district, installations necessary to the performance of an essential service, including water systems. Such facilities are to conform to the character of the zoning district. The water pipeline and intake structure are consistent with these provisions of the Okeechobee County zoning regulations. The Martin Plan provides that new rail facilities and roads be designed to minimize impacts on natural systems, which ICL has done in the siting of the rail spur and site access road to serve the site. The proposed location of the site access road is in the basic alignment of a future road between S.R. 710 and West Farm Road shown in the Traffic Circulation Element of the Martin Plan. The site access road to be constructed by ICL fulfills this objective of the Plan. Martin County zoning regulations are silent on the issue of the location of a rail spur or new roads. The proposed access road and rail spur are, therefore, consistent and in compliance with Martin County land use plans and zoning ordinances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governor and Cabinet, sitting as the Siting Board, enter a final order determining that the proposed Indiantown Cogeneration Project and its site (including the associated water pipeline and intake structure), as proposed in the Site Certification Application, are consistent and in compliance with land use plans and zoning ordinances of Martin and Okeechobee Counties. RECOMMENDED this 5th day of August, 1991, in Tallahassee, Leon County, Florida. DIANE K. KIESLING, 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 5th day of August, 1991. COPIES FURNISHED: Douglas S. Roberts Gary P. Sams Attorneys at Law Post Office Box 6526 Tallahassee, FL 32314 (Counsel for Applicant) Richard T. Donelan, Jr. Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kathryn Funchess, Assistant General Counsel David L. Jordan, Assistant General Counsel Stephen Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Vernon Whittier R. Bishop Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399 Fred W. Van Vonno Assistant County Attorney Martin County 2401 Southeast Monterey Road Stuart, FL 34996 John Fumero Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, FL 33416-4680 Roger G. Saberson Attorney at Law 70 S.E. 4th Avenue Delray Beach, FL 33483-4514 (Treasure Coast Regional Planning Council) Peter Merritt Suite 205 3228 Southwest Martin Downs Boulevard P. O. Box 1529 Palm City, FL 34990 (Treasure Coast Regional Planning Council) Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert V. Elias, Staff Counsel Division of Legal Services Florida Public Service Commission 101 East Gaines Street Fletcher Building, Room 212 Tallahassee, FL 32399-0850 Brian Sodt Ernie Caldwell, Interim Executive Director Central Florida Regional Planning Council Post Office Box 2089 Bartow, FL 33830-2089 John D. Cassels, Jr. Attorney at Law Post Office Box 968 400 Northwest Second Street Okeechobee, FL 34973 (Counsel for Okeechobee County) James Antista, General Counsel Kenneth McLaughlin, Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 Hamilton S. Oven, Jr., P.E., Administrator Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Board of Trustees of the Internal Improvement Trust Fund 3900 Commonwealth Boulevard, Room 153 Tallahassee, FL 32399-3000 Honorable Lawton Chiles Governor, State of Florida The Capitol Tallahassee, FL 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, FL 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, FL 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, FL 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, FL 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, FL 32399-0300 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350
The Issue At issue in this case is whether Sections 403, 404, 410, 503, 506, 703, 704, 705, 706, 707, 708, 1805, 1903, 1904, 1905, 1909, 1911, and 2710 of the Bay County Land Development Regulations (the "LDRs"), as adopted by Bay County Ordinance No. 04-30 on September 21, 2004, are inconsistent with the Bay County Comprehensive Plan (the "Plan").
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: Standing Petitioners Cornelia F. Hammond and Estelle M. Hicks reside within Bay County and own residential property in unincorporated Bay County. A "substantially affected person" may challenge a land development regulation pursuant to Subsections 163.3213(2)(a) and (3), Florida Statutes. The parties have stipulated that Petitioners are substantially affected persons and have standing to bring this administrative challenge. The Challenged LDRs Section 403 Section 403, titled "Discouraged Activities," states that it is the "specific intent" of the LDRs "to promote homeowner's quiet use and enjoyment of property, and to minimize the potential for public nuisances." In furtherance of that intent, Section 403 lists activities that are "discouraged" in all new subdivisions with individual lots of less than one-half acre created after the effective date of the LDRs. The list includes: the raising or keeping of farm animals or livestock; raising, keeping, or boarding animals as a business activity; commercial activities other than those associated with home occupations; the storage or accumulation of wrecked motor vehicles, junk, derelict vessels, or debris; storage of building materials used as part of a business activity; the use of recreational vehicles for residential purposes; and any activity that would result in excessive and ongoing noise, odor, glare, fumes, dust, telecommunications interference, or other public nuisance. Petitioners allege that this LDR is inconsistent with Plan Objectives 8.5 and 8.9 and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and 1.2.1.9, because it "discourages" rather than prohibits the listed activities, and because it applies only to new subdivisions. Chapter 8 is the Housing Element of the Plan. Objective 8.5 states that it is the Plan's objective to "[p]reserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Policy 8.5.1 is the provision directly implemented, in part, by Section 403. Policy 8.5.1 provides: Specific criteria will be included in the Land Use Code4 for the preservation and protection of residential areas. These criteria will include, but may not be limited to: Maintaining compatibility between types of residential buildings; Ensuring that residential areas will be used primarily for residential purposes; Avoiding overcrowding of residential units; Avoiding accumulations of junk and debris; Avoiding nuisances such as excessive noise, dirt, glare, odors, noxious fumes and telecommunications interference, and; Avoiding the raising or keeping of farm animals. Petitioners criticize Section 403 as deviating from Policy 8.5.1, because Section 403 does not contain all of the criteria listed in the policy, because Section 403 uses the word "discourage" rather than the policy language of "avoiding," and because Section 403 limits its application to new subdivisions with lots of one-half acre or less created after adoption of the LDRs. The County points out that neither "discourage," nor "avoiding" constitutes language of absolute prohibition and, therefore, the LDR does not deviate from the objective or the policy. The County concedes that Section 403 applies only to subdivisions created after the effective date of Ordinance No. 04-30, but notes that the County has adopted a nuisance ordinance (Ordinance No. 04-37, as amended by Ordinance No. 05- 35) that applies to all real property. The nuisance ordinance classifies activities, such as failure to store garbage within a sealed container and exceeding certain sound levels, as public nuisances subject to citation and fines. The County reasonably decided to limit the application of Section 403 to subdivisions created after the effective date of Ordinance No. 04-30 to accommodate existing activities that would otherwise be prohibited. Petitioners point to no statute, rule, or Plan provision stating that an LDR implementing a certain policy is required to implement each and every aspect of that policy. The fact that Section 403 fails to expressly implement Policy 8.5.1.1 and 8.5.1.3 does not render it inconsistent with the Plan. Petitioners contend that, by "discouraging" rather than prohibiting the listed activities, Section 403 is inconsistent with Objective 8.9, which states that it is the Plan's objective to "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Petitioners, further, contend that this failure to "fully implement" Policy 8.5.1.1 renders Section 403 inconsistent with certain provisions of Policy 1.2.1, which provides, in relevant part: Findings and Purposes: This Plan is predicated upon and intended to promote the following findings and purposes: * * * 1.2.1.2: Encourage the most appropriate use of land, water and resources consistent with the public interest. * * * : Deal effectively with future problems that may result from the use and development of land within unincorporated Bay County. : To preserve, promote, protect and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare. * * * 1.2.1.9: To recognize and respect judicially acknowledged or constitutionally protected private property rights. It is the intent of this Plan that all provisions, requirements, regulations, ordinances, or programs adopted under authority of this Plan be developed, implemented and applied with sensitivity for private property rights and not be unduly restrictive, and property owners must be free from actions by others which would harm their property. Full and just compensation or other appropriate relief must be provided to any property owner for a governmental action that is determined to be an invalid exercise of the police power which constitutes a taking, as provided by law. Any such relief shall be as provided by law. Petitioners contend that Section 403's failure to include the requirement of Policy 8.5.1.3 that overcrowding of residential units should be avoided constitutes a conflict with Policy 3.6.1.2, which requires the LDRs to ensure the compatibility of adjacent uses and provide for open space. None of Petitioner's contentions is well-founded in terms of establishing Section 403's inconsistency with the Plan. As noted above, there is no requirement that an LDR implementing a given Policy must implement each and every aspect of that Policy. Petitioner's evidence on this issue consists of resident's anecdotal complaints that adjacent seasonal/resort uses cause increased noise, traffic, and safety hazards, evidence, which did not establish inconsistency between the LDR and the Policy. Petitioners contention that Section 403 would be more effective if it prohibited rather than "discouraged" the listed activities is inarguable, but beyond the scope of this proceeding. In its Plan, the County has chosen to "avoid" the listed nuisances. For better or worse, the Plan's language is hortatory, not mandatory. Section 403 is not inconsistent with Policy 8.5.1 or with the other Plan provisions cited by Petitioners. Section 404 Section 404 delineates the allowable uses, conditional uses, and accessory uses and structures allowed in the R-1 single-family residential zoning category. The allowable uses include: single-family dwellings built to Florida Building Code Standards pursuant to Chapter 553, Florida Statutes; community facilities such as neighborhood centers, golf courses, swimming pools, and tennis courts; family day care homes; not-for-profit parks and playgrounds; and "low impact public utilities." Conditional uses are those that may be allowed in the R-1 zones subject to such conditions as are necessary to preserve the integrity of the zone. Conditional uses include: public or private schools and houses of worship, subject to buffering and traffic impact mitigation; community residential homes provided they are not located within 1,000 feet of one another and do not substantially alter the nature and character of the surrounding area; electric power substations, to be evaluated on a case-by-case basis; and "others as determined by criteria specified in Chapter 12." Chapter 12 of the LDRs sets forth the application and permitting procedures for conditional uses, which are "intended to provide additional flexibility in the zoning process where a particular use might not be specifically allowed in a particular zone, but would still be compatible with allowed uses in that zone when certain qualifying conditions are applied." Accessory uses and structures, such as unattached garages, carports, swimming pools, storage sheds and docks, are allowed only when a principal use or structure already exists. They must be located in side or rear yards, unless the lot is abutting a body of water, when they may be placed in front of the principal use or structures. Petitioners contend that Section 404 allows incompatible uses in single-family zones and is inconsistent with Objectives 3.9, 8.5, and 8.9, and Policies 3.9.1, 8.5.1, 8.9.1, 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 2.1.2.2 of the Plan. Petitioners contend that Section 404 is inconsistent with the listed Plan provisions for the following reasons: while it requires buffering for schools and churches, it does not require buffering between single-family homes and other uses that are known to create nuisances; it allows electrical power substations, which are known health risks; it creates uncertainty by authorizing unspecified conditional uses so long as they are consistent with the criteria of Chapter 12 of the LDRs; it contains no restrictions on noise that is incompatible with the quiet use and enjoyment of a homeowner's residence; and it does not allow manufactured homes. As to the first reason, Petitioners have offered insufficient support for their contention that the absence of language requiring a buffer between residences and uses that are known nuisances is inconsistent with the Plan. Petitioners offer a list of "nuisances" that includes parks, playgrounds, and community facilities, which are not commonly considered "nuisances" in residential areas. Housing Element Policy 8.5.1 of the Plan requires the LDRs to include criteria that maintain compatibility between types of residential buildings, and Policy 8.9.1 requires the County to establish zoning districts in the LDRs that promote compatibility between residential uses and reduce the potential for public nuisances. The County has elected to require buffering in the R-1 zone between residences and churches and schools, but not to require buffering between residences and parks, playgrounds, and community facilities, or between residences and "nuisances" generally. Section 404.2.f provides that "other" conditional uses are required to seek permits under Chapter 12, a process through which compatibility is addressed and buffers could be required as a condition of approving the conditional use. As to the Petitioner's claim regarding electrical power substations, Subsection 163.3208(4), Florida Statutes (2006), requires local governments to allow new electrical substations as a permitted use in all comprehensive plan categories and zoning districts, except those designated as preservation, conservation, or historic preservation. Subsection 163.3208(6), Florida Statutes, provides express conditions for the placement of electric substations in residential areas, requiring the utility to consult with local government regarding site selection and to propose at least three alternative sites, including sites within nonresidential areas. The local government has the authority to make the final decision as to substation placement. Further, electrical substations are classified as conditional uses by Section 404 and, therefore, must meet the requirements of Chapter 12 of the LDRs in order to be approved. One such requirement, in Section 1206.1, is that the conditional use must be "consistent with all applicable provisions of the Plan." Table 3A of the Future Land Use Element ("FLUE") specifically lists public utilities as an allowable use in the Residential land use category. Section 1206.2 provides that a conditional use request "shall not adversely affect adjacent properties in terms of creating a nuisance, reduction in property values, or other quantifiable measure." Section 1206.3 provides that the request must be "compatible with the existing or allowable uses of adjacent properties." Section 1206.7 provides that the request "will not adversely affect the public health, safety or welfare." Section 1205 grants the County's Planning Commission the authority to impose such conditions and safeguards on conditional uses "as deemed necessary to protect and enhance the health, safety and welfare of the surrounding area." In summary, electrical power substations are naturally and appropriately considered "public utilities" and are, therefore, specifically allowed in residential areas under the Plan. Section 404.2.e lists electrical power substations as conditional uses "to be evaluated on a case-by-case basis." As conditional uses, electrical power substations are subject to the review process of Chapter 12 of the LDRs. The health risks of the substations must be considered under Section 1206.7, which prohibits adverse effects on the public health, safety or welfare. Finally, state law in the form of Section 163.3208, Florida Statutes, has preempted any authority the County may have had to completely prohibit electrical substations in residential areas. Petitioners have, also, alleged that Section 404.2.f allows any number of unidentified potential uses that could create nuisances and destroy the character, compatibility and aesthetics of their neighborhoods, which would be inconsistent with Objective 8.5 of the Plan, and that could interfere with the quiet use and enjoyment of their property, which would be inconsistent with Objective 8.9. Petitioners have pointed to no statute, rule, or Plan provision that would require the County to list every possible conditional use for the R-1 zoning category in the LDR. Section 404.2.f simply clarifies that any conditional use not expressly named in Section 404.2 is subject to the permitting criteria of Chapter 12 of the LDRs, which themselves limit conditional uses to those compatible with existing or allowable uses of adjacent properties and that do not create nuisances. Regarding the alleged lack of noise standards, Petitioners have referenced no provision of the Plan requiring noise to be addressed in the LDR that sets forth allowable uses in the R-1 zoning category. The conditional use requirements of Chapter 12 are intended to ensure compatibility of adjacent uses and forestall the creation of nuisances. As noted above, the County, also, has a nuisance ordinance that applies to all property. Finally, Petitioners complain that manufactured homes are not listed as allowable uses in the R-1 single-family zone despite the fact that Table 3A of the FLUE portion of the Plan includes "manufactured housing" among those land uses that are allowable in residential areas. Objective 8.7 of the Plan is to provide for the location of affordable housing, including manufactured housing, in residential districts while avoiding "undue concentrations" of affordable housing in any one area. Policy 8.7.2 of the Plan provides: The Board recognizes that mobile homes and/or manufactured houses are commonly used to provide affordable housing. The Board will provide for the placement of these structures by designating certain land use districts in the Land Use Code in which mobile homes, manufactured homes, mobile home parks, and mobile home subdivisions will be allowed. These areas will be designated in such a way as to avoid undue concentrations in any one particular geographic area. Manufactured homes are listed, either specifically or by reference to another zoning category, as allowable uses in the R-2 (Duplex Dwellings and Manufactured Housing Zones) and R-3 (Duplex, Triplex, and Quadraplex Zones), but not in the R-1 (Single-Family Zones) zoning category. An exception is a manufactured home that meets the Florida Building Code Standards of Chapter 553, Florida Statutes, which is allowed in all residential zoning districts. That fact that Table 3A of the FLUE allows manufactured housing in residential areas does not mean that manufactured housing must be allowed in every zoning category included under the "residential" designation. Petitioners have failed to demonstrate that Section 404 is inconsistent with the Plan. Section 4105 Section 410, titled "Bulk Regulations," sets forth the bulk regulations for all residential zoning categories. Petitioners have alleged that this LDR is inconsistent with Objectives 3.9, 8.5 and 8.9, and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, 3.6.1, 3.9.1, 3.9.2, and 8.5.1. Section 410 includes Table 4.1, which establishes standards for each residential zoning category set forth in Chapter 4 of the LDRs. These bulk regulations include maximum densities, minimum lot frontages, yard setbacks, maximum building heights, and impervious surface ratios for each zoning category, further divided into urban, suburban, and rural community areas. Petitioners allege that the failure of the bulk regulations to mandate a minimum lot size and the allowance of 15 dwelling units per acre in the urban R-2 and R-3 zones would allow a developer to enter an existing neighborhood, buy an adjacent vacant parcel or assemble several lots and build at a higher density than the existing neighborhood. Petitioners point out that R-2 zoning covers the majority of land in Laguna Beach, and that the overall density in that area is about eight to ten units per acre. However, under Section 410, a developer could assemble an acre and build up to 15 dwelling units per acre. This density is nearly double the eight units per acre allowed in the R-1 zoning category. Petitioners contend that such increased density in existing neighborhoods has the potential to destroy the character, compatibility and aesthetics of these neighborhoods, which is inconsistent with Objective 8.5, and the potential to create nuisances with excessive noise and traffic, inconsistent with Policy 8.5.1. These impacts would have the cumulative effect of interfering with the residents' quiet use and enjoyment of their homes and would devalue their property, inconsistent with Objective 8.5. Despite the Petitioners' concerns, the Plan contains no minimum lot size requirements in the Residential FLUE category. Therefore, no minimum lot size is required for the residential zoning bulk regulations. The Residential FLUE category in Table 3A of the Plan allows a density of no more than 15 dwelling units per acre in urban/coastal areas. The provisions of Section 410 are identical to those of the Plan, limiting density to 15 dwelling units per acre in the urban areas of the R-2 and R-3 zones. While they have voiced legitimate concerns regarding the impact of increased densities imposed on existing neighborhoods, Petitioners have failed to demonstrate that Section 410 is inconsistent with the Plan. Section 503 Petitioners have alleged that Section 503, dealing with the SR-1 Seasonal/Resort Residential zoning category, is inconsistent with Objectives 8.5 and 8.9 and Policy 3.9.1, because the allowable uses under this LDR do not protect existing neighborhoods in or adjacent to the SR-1 zones, specifically the existing single-family residential neighborhoods in the Beaches Special Treatment Zone south of U.S. 98. The alleged incompatible allowable and conditional uses include motels/hotels, condominiums, beach rental vendors, and parking garages. The Seasonal/Resort FLUE category in Table 3A of the Plan states that the purpose of the category is "[t]o provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." Listed allowable uses include condominiums, multi-family structures, motels, hotels, lodges, restaurants, convenience stores, and lounges and bars as accessory uses to multi-family structures, hotels, motels, or restaurants. Under the heading "Development Restrictions," Table 3A expressly provides that year-round, permanent residences should not be located in the seasonal/resort areas. Petitioners complain that the seasonal/resort land use category and the SR-1 and SR-2 zoning categories were assigned to many existing R-1 single-family residential structures, and that many of these homeowners have petitioned the County to change their designation from seasonal/resort back to residential. However, Petitioners have not shown that the SR-1 category described in Section 503 of the LDRs is inconsistent with the criteria of the Seasonal/Resort FLUE category set forth above. Section 503.1.a specifically recognizes that the R-1 uses in the seasonal/resort area are not nonconforming. Elliott Kampert, the County's chief planner, testified that many, if not most, of the single-family residences in this area were non- homestead properties being used as rental properties by their owners. Petitioners counter that the Plan does not distinguish between full-time, seasonal, or rental uses in applying compatibility standards or requiring protection of the character and aesthetics of residential areas and the opportunity for the quiet use and enjoyment of homes. Policy 3.9.1 of the Plan defines "compatibility" as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This is the same definition of "compatibility" found in Florida Administrative Code Rule 9J-5.003(23). Petitioners contend that Section 503 is inconsistent with Objective 3.9 generally and with Policy 3.9.1 in particular. Petitioners argue that, because SR-1 is a residential zone that has been applied to existing neighborhoods, Objectives 8.5 and 8.9 are also relevant. Objective 8.5 requires the preservation and protection of the character, compatibility and aesthetics of residential areas and neighborhoods "through the enforcement of land use regulations." Objective 8.9 requires protection of residential property values and ensures the homeowner's quiet use and enjoyment of his residence. Petitioners contend that the development allowed under Chapter 5 of the LDRs, including 60-foot high motels/hotels, 100-foot high condominiums and apartment houses, and 45-foot high parking garages, will interfere with the quiet use and enjoyment and change the character and aesthetics of the existing single- family neighborhoods. The stated purpose of the Seasonal/Resort FLUE category is to accommodate primarily seasonal or temporary visitors and tourists. Table 3A of the Plan expressly states that year-round, permanent residences should not be located in this area. Therefore, the allowable and conditional uses listed for the SR-1 category in Section 503 of the LDRs are appropriate and consistent with the relevant portion of the Plan. Petitioners' arguments, at most, demonstrated that the Seasonal/Resort criteria and standards set forth in Table 3A are inconsistent with Objectives 8.5 and 8.9 of the Plan, to the extent that the County has imposed the Seasonal/Resort designation to existing residential neighborhoods despite the express criterion that permanent residences should not be located in this area. Internal inconsistencies in the Plan are beyond the limited scope of this proceeding. Petitioners have failed to demonstrate that Section 503 is inconsistent with the Plan. Section 5066 Section 506 includes Table 5.1, which establishes standards for each seasonal/resort zoning category set forth in Chapter 5 of the LDRs. These bulk regulations include minimum lot areas, maximum densities, minimum lot frontages, minimum setbacks, maximum building heights, and impervious surface ratios for each zoning category. Petitioners contend that this LDR is inconsistent with Objectives 3.11, 8.5, and 8.9, as well as Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 3.9.1 of the Plan. Section 506 allows residential structures to be built three feet from the side-yard property line, commercial structures to be built ten feet from the side-yard property line, and contains no floor-to-area ratios. The LDR allows heights up to 60 feet for residential structures and up to 230 feet for commercial structures. Petitioners complain that Section 506 would allow construction of a 230-foot tall hotel ten feet from the property line of an existing single-family home. Petitioners contend that the setback provisions do not require sufficient side yards to preserve the integrity of the area or to protect adjacent property from the ill effects of the allowed uses. Petitioners, also, contend that Section 506 lacks objective measurements of density or intensity to control the bulk and mass of new construction. Table 5.1 includes height limits and impervious surface ratios, but does not include floor-to-area ratios, which Petitioners argue are necessary in order to have meaningful density and intensity controls. The County correctly responds that the Plan does not establish minimum setbacks or floor-to-area ratios for buildings in the Seasonal/Resort FLUE category and, therefore, neither the minimum setbacks prescribed in Table 5.1, nor the lack of floor- to-area ratios in Table 5.1 is in derogation of any provision of the Plan. Petitioners have failed to demonstrate that Section 506 is inconsistent with the Plan. Section 703 Petitioners contend that Section 703, which sets forth the allowable, conditional, and prohibited uses in the Conservation Preservation Zone, is inconsistent with the Plan, because it does not address maintaining water quality standards. Table 3A of the FLUE, in stating the purpose, uses, density and intensity allowed in the Conservation Preservation Zone, states the following "Development Restriction": "No development allowed that can be reasonably expected to degrade water quality standards." Petitioners contend that this statement should have been incorporated into the text of Section 703. Petitioners contend that Section 703 allows uses with the potential to degrade water quality, such as public utilities and infrastructure, docks, piers, seawalls, jetties, groins, boathouses, and "other similar uses."7 Petitioners contend that incorporating the specific language from Table 3A into Section 703 would enable the County to address potential development that could impair water quality. The County points out that environmental standards are set forth in a separate chapter of the LDRs, Chapter 19. Section 1904.2.e of the LDRs provides: "No new development will be permitted that would reasonably be expected to cause violation of state or federal water quality standards." Chapter 18 of the LDRs sets forth the development review process and specifically references Chapter 19 in the provisions stating the environmental information that must be included in a development application. Petitioners have failed to demonstrate that Section 703 is inconsistent with the Plan. Section 704 Petitioners contend that Section 704, which sets forth the allowable, accessory, and prohibited uses in the Conservation Recreation Zone, is inconsistent with the Plan, because it is inconsistent with the development standards set forth in Table 3A of the FLUE for the Conservation Recreation land use category. Table 3A states that the purpose of the Conservation Recreation Zone is "[t]o provide areas that are used jointly for both conservation and recreation purposes." Table 3A sets forth the allowable uses in the Conservation Recreation Zone: "Agriculture (when BMPs are used), Recreation, Public/Institutional, Residential, Commercial on upland areas when used in conjunction with the overall recreation function (e.g. ranger quarters, concessionaires, etc.), docks, piers, seawalls, groins, buoys, "eco-parks" and other similar uses, and public utilities." Table 3A sets forth the following development restriction: "Development is limited to that which supports conservation/recreation purposes." Table 3A lists density and intensity criteria as "not applicable" for the Conservation Recreation Zone. Section 704 lists all allowable and conditional uses in the Conservation Preservation Zone as allowable uses in the Conservation Recreation Zone. In addition, Section 704 lists the following as allowable uses in the Conservation Recreation Zone: Outdoor recreation uses including: parks, recreation areas, campgrounds, preserves, nature trails, historic sites, or other similar uses; hunting or gun clubs or lodges; canoe, kayak or other small boat rentals; fishing camps or lodges; horseback riding stables and trails; youth, institutional, or day camps or lodges; and, other similar outdoor recreation uses. Petitioners argue that the allowable uses listed in Table 3A, in conjunction with the lack of density and intensity criteria, establishes that only uses of limited impact are to be allowed in this area, with the standard for structural development limited to structures necessary to support the allowable recreational uses, such as ranger stations and concessionaires. "High density, high intensity" structures such as hunting, gun, fishing, youth, and recreational lodges are outside the conservation purposes of Table 3A and, are therefore, inconsistent with the Plan. Section 708 of the LDRs contains Table 7.1, the bulk regulations for all of the Conservation Zones described in Chapter 7. Table 7.1 requires a minimum lot area of 20 acres for construction in the Conservation Recreation Zone, with minimum front, rear, and side setbacks of 100 feet, maximum lot coverage of ten percent and a floor area ratio of 20 percent. A lodge constructed under these criteria would not constitute a "high density, high intensity" structure inconsistent with Table 3A of the Plan. Table 3A includes "designation criteria" for the Conservation Recreation Zone that expressly include the following: St. Andrews State Recreation Area and Aquatic Preserve, Pine Log State Forest, Econfina Creek Water Management Area, Shell Island, and Class III waters. Mr. Kampert, the County's planner, stated that the St. Andrews facility has camping sites for RVs and commercial uses such as a snorkel, dive shop, and camping shop. Pine Log State Forest includes RV camping sites with restroom facilities and showers. It is established that the state allows these types of uses in the management of its recreational areas and, therefore, that the Plan contemplates the same uses in the Conservation Recreation Zone. Petitioners, also, complain that Section 704.2.b lists "public/institutional uses" as allowed as accessory uses and structures, but does not provide examples of the type of development that would be allowed under this term. Petitioners cite no requirement that the County must publish a list of examples under each use category within the LDRs. Examples of Public/Institutional Uses are included in Table 3A of the FLUE under that land use category. In any event, such uses would be limited "to that which supports conservation/recreation purposes." Petitioners have failed to demonstrate that Section 704 is inconsistent with the Plan. Section 705 Section 705 lists the allowable and prohibited uses in the Conservation Habitation Zone. Included in the allowable uses under Section 705 are both bird sanctuaries and communications towers. Petitioners complain that communications towers present hazards to birds and that allowing such towers is inconsistent with Table 3A of the FLUE regarding Conservation areas. Petitioner's evidence regarding the dangers that cell phone towers present to migrating and local resident birds is credited, but not relevant to a determination whether the LDR is inconsistent with the Plan. Petitioners contend that communications towers constitute a commercial/industrial use and, thus, are inconsistent with Table 3A's description of the Conservation FLUE category. However, Table 3A of the FLUE lists allowable uses in the Conservation category to include "public utilities, and other similar uses." It was not unreasonable for the County to determine that communications towers are more akin to public utilities than to commercial/industrial uses, and to allow their placement in the Conservation Habitation Zone.8 Petitioners have failed to demonstrate that Section 705 is inconsistent with the Plan. Section 706 Section 706 is titled "Innovative Development Techniques." Section 706 is intended to implement Objective 6.18 of the Conservation Element of the Plan. Objective 6.18 provides that its purpose is to "[p]rovide landowners with beneficial use of their property when environmental restrictions cause the loss of full development potential through use of innovative and flexible development strategies." Policy 6.18.1 of the Plan provides that owners or developers facing development restrictions due to the presence of locally significant environmental resources on their property may use the "innovative land development techniques" of clustering and mitigation. Petitioners contend that the first sentence of Section 706 is inconsistent with the standards set forth in Table 3A for Conservation Preservation and Conservation Recreation land use categories. The first sentence of Section 706 provides: "Conservation zones are intended to accommodate limited development while, also, conserving and protecting valuable natural resources." Petitioners argue that the Conservation Preservation and Conservation Recreation categories do not allow any development at all. Petitioner's contention would be correct only if Section 706 were read to negate or override Sections 703 and 704. Sections limit development in the Conservation Preservation and Conservation Recreation Zones, respectively, through the provision of limited allowable uses and prohibited uses. Nothing in Section 706's provision for innovative development techniques trumps the limited allowable uses of the Conservation Preservation or Conservation Recreation Zones. Petitioners, also, complain that Section 706 is inconsistent with Policy 6.18.1, which states in relevant part that "owners or developers may use, or be required to use, the following innovative land development techniques." (Emphasis added.) Petitioners emphasize the underscored language to argue that the County has retained the right to impose clustering on developers, whereas Section 706 merely "encourages" clustering. On this point, there is no inconsistency between the LDR and the Plan, because the latter does not require the County to impose mandatory clustering on owners or developers. Petitioners are probably correct that Section 706 would prove more effective if it required clustering, but Policy 6.18.1 of the Plan does not mandate that outcome. Section 706 allows the use of "density transfers," defined as "[t]he transfer of all or part of the allowable density on a lot or parcel of land to another lot or parcel of land." Petitioners argue that the LDR does not provide specific and detailed criteria for the application of density transfers, which renders it inconsistent with Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and where transfers impact existing residential areas, Objectives 8.5 and 8.9. The density transfers are contemplated only for conservation zones, not existing residential areas. The lack of specific criteria to implement the concept of density transfers does not render Section 706 in conflict with the cited Plan provisions. It is noted that the Plan is silent as to density transfers, but it is, also, found that density transfers are not in conflict with the Plan.9 Finally, Petitioners allege that allowing developers to deviate from the bulk requirements for Conservation zones in Table 7.1 of the LDRs may lead to development inconsistent with the Plan. The County contends that allowing deviations from the bulk requirements is not inconsistent with the Plan, because deviations are allowed only when it can be shown that they are "necessary and desirable to avoid or preserve natural resources." Petitioners respond that the terms "necessary" and "desirable" are so vague as to be meaningless in terms of establishing an objective standard for development review. However, Section 706 expressly provides that requests for the use of innovative development techniques in Conservation zones are to be evaluated on a case-by-case basis, indicating that the County intends for the common understanding of those terms to be elucidated and amplified through the permitting process. Petitioners have failed to demonstrate that Section 706 is inconsistent with the Plan. Section 707 Section 707 contains nine special regulations that apply in the Conservation zones. Section 707.5 provides: Development will be under-taken [sic] so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities authorized by permits issued by federal or state authorities. Petitioners allege that Section 707.5 is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.1 of the Plan, because the intent of those Plan provisions is to preserve and protect wetlands. Petitioners, therefore, contend that Section 707.5 is less restrictive than the Plan, because it allows state and federal permits to trump the wetland protections set forth in the Plan. Objective 6.11 of the Plan is to "[p]rotect and conserve wetlands and the natural functions of wetlands." Policy 6.7.4 sets forth development standards applicable in designated Ecosystem Management Areas. Policy 6.7.4.5 provides that development will be undertaken "to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 707.5 of the LDRs is taken verbatim from Policy 6.7.4.5 of the Plan, except for the addition of the phrase, "except for activities authorized by permits issued by federal or state authorities." Policy 6.18.1 is the "innovative development techniques" provision discussed in Section H, supra. The County points out that Objective 6.11 states that the County will "protect and conserve" wetlands, not "preserve" them from development altogether. Petitioners contend that nothing in the Plan distinguishes between "jurisdictional wetlands," those that by definition are regulated by state and federal permitting agencies, and "isolated wetlands" unregulated by state and federal agencies. However, Policy 6.11.1 adopts by reference the definition of "wetlands" as used by the Department of Environmental Protection and set forth in Subsection 373.019(25), Florida Statutes (2006).10 Objective 6.1 of the Plan calls for the elimination of "needless duplication of government and regulatory activities relative to protection of natural resources." Policy 6.1.1 goes on to say that the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Despite Petitioner's contentions, nothing in the Plan clearly indicates11 that isolated wetlands are to be afforded the same protections as jurisdictional wetlands. The Plan defines "wetlands" by reference to the Department of Environmental Protection's definition, a clear indication that the Plan is concerned only with jurisdictional wetlands. Section 707.5 defers to the federal and state wetlands permitting authorities in the same manner as the Plan itself. Petitioners have failed to demonstrate that Section 707 is inconsistent with the Plan. Section 708 The bulk regulations for the Conservation zones are contained in Table 7.1 of Section 708 of the LDRs. A minimum lot area of 20 acres and a maximum building height of 50 feet are provided for the Conservation Recreation zone. Petitioners allege that that provision of a minimum lot area is inconsistent with the Conservation Recreation FLUE category contained in Table 3A of the Plan, because no minimum lot area is included therein. Petitioners claim that a minimum lot area precludes smaller parcels from being placed in the Conservation Recreation category, thereby decreasing opportunities for acquiring and conserving smaller areas of ecologically valuable resources. Petitioners, also, argue that allowing buildings up to 50 feet in height is inconsistent with the Conservation Recreation FLUE category, because such a building height is not necessary to accommodate the allowable uses. Contrary to Petitioner's allegation, the minimum lot area in Table 7.1 is not inconsistent with the Plan. Table 3A of the Plan does not set forth minimum lot areas as such for any land use category.12 Petitioner's policy argument regarding smaller parcels is logical, but unsupported by any specific Plan provision. Finally, the County demonstrated that a 50-foot building height is reasonable for uses such as fire towers in the Conservation Recreation zone. Petitioners failed to demonstrate that Section 708 is inconsistent with the Plan. Section 1805 Section 1805 lists all the information that must be included in a development permitting application. Section 1805.2.b sets forth the environmental information to be included in the applicant's site development information package. Petitioners allege that Section 1805.2.b is inconsistent with the Plan, because it does not require applicants to depict wetland buffers or the jurisdictional wetland line on their site plans. Policy 6.11.3.1 of the Plan provides: "Wetlands will be delineated and depicted on all site plans included in applications for development approval." The policy does not require the depiction of wetland buffers. Consistent with Policy 6.11.3.1 of the Plan, Section 1805.2.b of the LDRs requires the applicant's site plan to depict wetland areas. Petitioners failed to demonstrate that Section 1805 is inconsistent with the Plan. Section 1903 Section 1903 of the LDRs provides a list of what the County considers to be "significant natural resources." The list is identical to the list of "locally significant natural resources" contained in Policy 6.2.1 of the Plan, except that "shellfish beds" were added to the LDR list. Petitioners contend that Section 1903 should go beyond the list in Policy 6.2.1 and include all natural resources that are protected under the Plan. In particular, Petitioners claim that native aquatic flora and fauna, that help protect water quality and provide habitat, should be included in Section 1903, because their protection is a part of several Objectives in the Conservation Element of the Plan, including Objectives 6.7, 6.8, 6.9, 6.14, 6.15, 6.16, 6.17, 6.19, 6.20, 6.21, and 6.22. Petitioners argue that nothing in the statutes or rules restrict the County from adopting LDRs that go beyond the specific language of the Plan, provided the additional language is consistent with and further the objectives of the Plan. Petitioners point to the addition of the language relating to shellfish beds as an example of acceptably expanding the list of significant natural resources contained in Policy 6.2.1. Petitioners are correct in noting that the County could, further, expand the list of significant natural resources in the LDRs. This is not to say, however, that the County is required to expand the list beyond the resources listed in the Plan, and Petitioners concede that Section 1903 contains all of the resources identified in Policy 6.2.1 of the Plan. Petitioners have failed to demonstrate that Section 1903 is inconsistent with the Plan. Section 1904 Section 1904 sets forth the environmental standards with which all development must be designed and constructed to comply. The stated purpose of the standards is "to protect and conserve significant natural resources," a reference to the list of resources provided in Section 1903. Petitioners contend that the expanded list of natural resources they sought to be included in Section 1903 should, also, be added to Section 1904. For the same reasons stated in Section M, supra, there is no requirement that the LDRs go beyond the Plan regarding the list of significant natural resources identified for protection. Section 1904.4 provides setbacks for development adjacent to any water body. All principal and accessory structures must be located no closer than 30 feet from the mean high water or ordinary high water line or within 30 feet of any Department of Environmental Protection jurisdictional line, whichever is more restrictive. Natural vegetation is to be preserved within the setback area. The stated purpose of the setback is to "provide a buffer between surface waters and development, preserve quality, limit sediment discharges, erosion, and uncontrolled stormwater discharges, and provide wildlife habitat." Petitioners allege that the 30-foot setback is insufficient to accomplish the stated purpose, because subsurface impacts can extend well beyond a 30-foot setback. Dr. Bacchus testified as to the extensive scientific documentation that coastal areas are eroding. This natural erosion, coupled with the rise in sea levels caused by global warming, means that a 30-foot setback, even if it were scientifically based at the time it was adopted, would no longer have a valid basis. The situation will be exacerbated by the continued increase in Bay County's population, meaning that more and more water will be withdrawn causing the land mass to compress and collapse. The sea level encroachment will, thus, be far greater than the sea level rise alone would predict. The County notes that the setback language of Section 1904.4 is substantively identical to Policy 6.7.4.6 of the Plan, which applies to Ecosystem Management Areas, areas where "extraordinary regulatory standards may be applied to protect natural resources." Though not all surface waters are necessarily included in the Ecosystem Management Area designation, Section 1904.4 provides the same buffer they would enjoy were they so designated. Petitioners point to no specific Plan provision with which Section 1904 conflicts. Dr. Bacchus credibly testified that a larger buffer area would provide greater protection to the surface waters encroached upon by adjacent development. However, the standard in this proceeding is not whether the LDRs could be improved upon, but whether they are inconsistent with the Plan. Petitioners failed to demonstrate that Section 1904 is inconsistent with the Plan. Section 1905 Section 1905 sets forth a list of development restrictions for those areas designated Ecosystem Management Areas by Policy 6.7.3: "Undeveloped, unplatted land in the Rural or Suburban Service Areas adjacent to Class II waters and Outstanding Florida waters, tributaries and headwaters thereto." Policy 6.7.4.5 of the Plan provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 1905.4 of the LDRs provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities or permits issued by state and federal agencies." Petitioners contend that Section 1905.4 is inconsistent with Policy 6.7.4.5, because it includes the quoted phrase deferring local jurisdiction to permits issued by state and federal authorities. This is the same argument raised by Petitioners regarding Section 707. See Section I, supra. Petitioners, also, contend that Section 1905.5, providing the same 30-foot setback as discussed in relation to Section 1904, is inadequate for the same reasons discussed in Section N, supra. Petitioners' chief concern is the protection of wetlands, and they argue with some force and no little persuasiveness that state and federal agencies do not adequately enforce wetlands regulations. However, it is not within the authority of this tribunal to substitute its judgment for the County's legislative determination to defer to the permitting authority of state and federal agencies. For the same reasons given in Sections I and N of this Order, Petitioners have failed to demonstrate that Section 1905 is inconsistent with the Plan. Section 1906 Section 1906 sets forth development restrictions in the Deer Point Reservoir Protection Zone, established to protect the water quality of the Deer Point Reservoir at or above the ambient levels at the time the County adopted Ordinance 94-12, which established the boundaries of the protection zone and provided standards for land uses in order to protect the water quality of the reservoir. The Deer Point Lake Reservoir is a Class I water that was created in 1961 through the construction of a dam across the northern portion of North Bay, and is the primary source of drinking water for most of the municipalities in the County. Petitioners complain that Section 1906.5 allows on- site sewage disposal systems within the Deer Point Reservoir Protection Zone, provided that the minimum setback for septic tanks and their drainfields is 100 feet from the mean high water or ordinary high water line. Dr. Bacchus credibly testified that allowing septic tanks to proliferate in the Deer Point Lake watershed will cause the water to become extremely eutrophic, due to the leaching of nutrients through the shallow surficial aquifer. There will be problems with aggressive alien species and fish kills, causing the recreational benefits of the area to plummet.13 Again, even if Dr. Bacchus' expert testimony is fully credited, it does not resolve the question whether Section 1906 is inconsistent with the Plan. Policy 6.6.1.5 of the Plan expressly provides that septic tanks are allowed near Class I waters, provided they are no closer than 100 feet from the shoreline. Policy 6.7.4.4 of the Plan provides that, in the Ecosystem Management Areas, septic tanks must be located at least 100 feet upland of the mean high water line, ordinary high water line, or DEP wetland jurisdiction line. Petitioners have failed to demonstrate that Section 1906 is inconsistent with the Plan. Section 1909 Section 1909 sets forth restrictions, constraints and requirements on development activities in wetlands. Petitioners argue nine points of alleged inconsistency. First, Petitioners contend that Section 1909's defining "wetlands" by reference to Florida Administrative Code Rule 62-340.200(19) is inconsistent with the Plan, because the Plan covers both jurisdictional and isolated wetlands. The cited rule provides: "Wetlands," as defined in subsection 373.019(25), F.S., means those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. The rule's definition is virtually identical to that contained in Subsection 373.019(25), Florida Statutes. See footnote 10, supra. As noted in Section I, supra, Policy 6.11.1 of the Plan adopts by reference the definition of "wetlands" set forth in Subsection 373.019(25), Florida Statutes. For the reasons set forth in Section I, supra, Petitioners have failed to demonstrate that the intent of the Plan was to include any wetlands other than the jurisdictional wetlands defined by statute and the Department of Environmental Protection's rule. Petitioner's second point is that Section 1909.2 contains the same exception to the general avoidance of development impacts on wetlands as found in Sections 707.5 and 1905.4: "except for activities authorized by permits issued by federal or state authorities." For the reasons set forth in Sections I and O, supra, this language has not been shown to be inconsistent with the Plan. Petitioner's third point is that Section 1909.3 provides the same 30-foot wetland buffer set forth in Section 1904.4. For the reasons set forth in Section N, supra, the 30- foot buffer has not been shown to be inconsistent with the Plan. Petitioner's fourth point is that the last sentence of Section 1909.3.e is inconsistent with the Plan. This sentence states: "A variance may be granted to allow an accessory use to violate the setback requirement, but by no more than twenty (20) percent."14 Petitioners allege that this language is inconsistent with Objectives 6.11 and 6.18 and their implementing Policies, as well as Policy 6.7.4, because the Plan's provisions contain no express exemption that allows accessory structures to be placed in the wetland buffer. Petitioners, further, contend that the Section 1909.3.e provides no guidelines to ensure that a requested variance is only for a use required to provide the owner with a reasonable use of the property. Petitioners note that "accessory uses" listed in the Plan and LDRs include guesthouses, swimming pools, storage sheds/greenhouses, satellite dishes, jet ski rentals, beverage or food shops, and parking garages. Objective 1.8 in the Administrative Prccedures Element of the Plan is intended to "provide avenues of hardship relief from those aspects of the Plan that have the effect of regulating the use of land, consistent with the provisions of Chapter 163, Florida Statutes." Policy 1.8.1.1 describes the County's variance process, the purpose of which is described as follows: The Plan variance process is designed to provide relief from the requirements of the Comprehensive Plan in those cases where strict application of these requirements could result in an unconstitutional taking or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this Plan. Policy 1.8.1.1 sets forth nine standards with which an applicant must demonstrate compliance. The ninth standard requires the applicant to prove that the property "cannot be put to a reasonable use which fully complies with the requirements of this Plan unless the variance is granted." This limitation obviates Petitioner's concerns about the potential for granting variances for frivolous accessory uses. The fact that a requested accesory use must go through the variance process set forth in Policy 1.8.1.1 and elaborated in Section 208 of the LDRs ensures consistency.15 Petitioner's fifth point is that Section 1909.3.g is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.2. Section 1909.3.g provides: "In situations where the width of the buffer area exceeds the width of the wetland, the buffer may be reduced to the same size as the width of the wetland. The quality of the wetland will determine this possibility." This subsection addresses situations in which the 30-foot buffer is wider than the wetland itself. Mr. Kampert testified that he was unaware that this situation had ever occurred in the County. Dr. Bacchus testified that she was unaware of any proven correlation between the width of the buffer and the width of the wetland in terms of protecting the wetland. She was unaware of any studies, research or other scientific documentation supporting the language regarding buffer reduction, and did not believe it would be possible to state a scientific basis for reducing the buffer to the width of the wetland. Policy 6.7.4.6 of the Plan states that the wetland buffer requirement, "including possible alternatives, may be further addressed in the Land Use Code."16 Allowing the width of the buffer to equal the width of the wetland when the wetland is less than 30 feet wide is an "alternative" that is not inconsistent with any specific provision of the Plan. The County is not required to demonstrate the scientific basis for the LDR. Petitioner's sixth point regards Section 1909.3.h, which provides: Alternative project design and construction may be allowed in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal to or greater than the vegetated buffer. Petitioners contend that this provision is inconsistent with Objective 6.11 and Policies 6.11.3.2 and 6.7.4.5. Both policies state that development will be undertaken so as to avoid activities that would destroy wetlands or their natural functions. The County points again to the "possible alternatives" to wetland buffers contemplated by Policy 6.7.4.6 of the Plan, and argues that alternative project design and construction within the parameters outlined in Section 1909.3.h must certainly be considered a reasonable alternative within the meaning of Policy 6.7.4.6. The County, further, notes that any impact of alternative project design would be minimal, because Section 1909 does not apply to wetlands in conservation zones or Ecosystem Management Areas, which contain most of the large wetland systems in the County. These areas have their own sections of the LDRs. See Section 707 (special regulations applicable to conservation zones) and Section 1905 (development restrictions for Ecosystem Management Areas). Petitioner's seventh objection regards Section 1909.5, which provides: In the event a lot or parcel of property is rendered totally undevelopable by avoidance of wetlands the property may be developed when: 1) disturbance of wetlands is the minimum necessary to build an allowable use, and 2) mitigation is provided consistent with applicable law. Petitioners contend that Section 1909.5 is inconsistent with Objective 6.18 and with Plan provisions calling for the protection of wetlands and their natural functions. Petitioners argue that Objective 6.18 establishes the conditions for development of property that is rendered totally undevelopable, because of environmental restrictions such as wetlands avoidance. Section 1909.5 provides for an "allowable use," seemingly a more lenient standard than the "beneficial use" standard of Objective 6.18. Petitioners note that an "allowable use" would appear to be any use listed in the zoning criteria for a particular parcel, which would likely be more intensive than a "beneficial use" under the standard provided by Objective 6.18. In response, the County simply points out that the language of Section 1909.5 is taken verbatim from Policy 6.11.3.5 of the Plan and, therefore, is not inconsistent with the Plan. Petitioner's eighth point regards Section 1909.6, which provides: In order to adequately monitor the loss of wetlands within Bay County, all fill permits granted by an agency other than Bay County shall be reported to Bay County Planning and Zoning Division. This notification is the responsibility of the applicant, and shall be concurrent with the application for development order, where applicable. Before the issuance of the Development Order, the applicant shall file a verified copy of the permit(s). Petitioners first complain that Section 1909.6 deviates from the intent of the Plan by limiting data gathering to jurisdictional wetlands, a variation of the argument already disposed of in Section I, supra. Petitioners, further, argue that Section 1909.6 is insufficient, because it leaves permit reporting to the applicant and provide no enforcement provisions. The standard in this proceeding is not whether the LDR falls short of Petitioner's desires and expectations, but whether it is inconsistent with the Plan. Petitioners have shown no inconsistency in Section 1909.6 Petitioner's ninth point regards Section 1909.7, which provides: Violations of this section, or noncompliance cases, may be required to implement appropriate corrective measures developed in consultation with the Planning Official and other appropriate agencies. In addition, triple application fees may apply, such as development order application fees, if this section is violated. Petitioners contend that this provision is inconsistent with the Plan's protection of natural resources, because the penalties are not mandatory, and in any event are not severe enough to deter intentional destruction of wetlands. However, Petitioners point to no particular Goal, Objective, or Policy of the Plan that sets forth enforcement criteria for the wetlands provisions. Again, Petitioners here urge the imposition of their policy preference on the County, rather than demonstrate that Section 1909.7 is inconsistent with the Plan. In summary, Petitioners have failed to demonstrate that Section 1909 is inconsistent with the Plan. Section 1911 Objective 6.16 of the Plan is to "[p]rotect and conserve selected trees and important vegetative communities." Policy 6.16.1 provides that the County will maintain tree protection regulations as part of the LDRs, and that these regulations will include criteria for: the type and size of protected trees; exemptions; conditions for tree removal; replacement of removed trees; protection of trees during development; and preservation of certain large trees. In furtherance of Objective 6.16, the County adopted Section 1911, which provides lengthy and detailed provisions for tree protection and allowable removal of "protected" trees, defined as any hardwood tree or coniferous tree other than pine with a diameter at breast height of 18 inches or more. Section 1911.5 establishes standards for "historic," "specimen," "champion," and "heritage" trees. Petitioners claim that Section 1911.5 is inadequate, because it fails to establish how these trees are to be identified in order to qualify for protection. Section 1911.5 in fact states that historic and specimen trees are to be designated as such by the County Commission, after a public hearing on the designation "with due notice to the owner of the tree." Thus, it appears that any member of the public, not just the landowner, may bring a tree to the County's attention. A champion tree is one that has been designated by the Florida Division of Forestry as the largest of that species in the State of Florida or by American Forests (a nonprofit conservation organization that has maintained the "National Register of Big Trees" since 1940) as being the largest of that species in the United States. Anyone is eligible to nominate a tree as a "champion" tree. A heritage tree is defined as any tree with a diameter of at least 30 inches. Section 1911.5 does not include any means for official recognition of a heritage tree, though it is noted that a heritage tree would, also, meet the definition of a "protected" tree. As noted above, Section 1805 of the LDRs sets forth the information that a developer must include with his application and site plan. Section 1805.2.b sets forth the environmental information that must be included on the site plan. Section 1805.2.b.vi requires the inclusion of the "location and size of all protected trees." The County concedes that the LDR includes no procedure for the County itself to go out into the field and identify qualifying trees. Objective 6.16 does not require the County to proactively identify qualifying trees. Petitioners have failed to demonstrate that Section 1911 is inconsistent with the Plan. Section 2710 Section 2710 regulates the location and construction of communications towers. Section 2710.3 provides the following location standards for a "communications tower," defined as a structure greater than 35 feet in height that is designed to support communications transmission or receiving equipment: Except as provided in subsection 2,17 the following standards and criteria shall apply to the location of new or expanded communications towers: Communications towers may be allowed in all land use districts or zones when all of the following standards and criteria are met. The applicant shall make every effort to locate his communications tower in a non-residential land use district or zone. No other industrial or commerically zoned property is available to the applicant for this intended use. The proposed location will minimize the impact of the antenna structure due to the height, use or appearance of the adjacent structures or surrounding area. There are no existing building structures located within the area that are available to the applicant for this intended purpose. No other existing antenna structure located within the area is available for purposes of co-location. The antenna structure and its proposed height is the minimum necessary by the applicant to satisfy the applicant's communication system needs at this location. The applicant must provide a written, notarized statement to the Planning Division demonstrating compliance with (i) through (vi). Requests to locate communications towers in residential districts or zones can only be approved by the Planning Commission at a duly noticed public hearing by comptetent substantial evidence demonstrating compliance with (a) through (h) above18 and all other applicable provisions of this Chapter [27, dealing with guidelines and standards for the design, installation, construction and maintenance of utility facilities]. Petitioners allege that allowing communications towers in all land use districts or zones is inconsistent with Objectives 3.9, 8.5 and 8.9 and Policies 3.9.1 and 8.5.1 of the Plan, because communications towers are not compatible with and should not be placed in residential areas. The Plan lists public utilities as an allowable use in all FLUE categories, including the Conservation and Residential categories. The Plan does not define "public utility." The LDRs define a "public utility" as "[a] regulated utility provider with a franchise for providing to the public a utility service deemed necessary for the public health, safety, and welfare." The LDRs define "utility, public or private" as (1) Any agency that, under public franchise or ownership, or under certificate of convenience and necessity, or by grant of authority by a governmental agency, provides the public with electricity, gas, heat, steam, communication, transportation, water, sewage collection, or other similar service; (2) a closely regulated enterprise with a franchise for providing a needed service. Based on the above definitions, which Petitioners have not challenged, the County has reasonably concluded that telecommunications providers are public utilities and that their telecommunications towers may, therefore, be placed in residential areas, subject to the conditions set forth in Section 2710.3 Section 2710.3.a.i requires the applicant to make every effort to avoid locating a comunications tower in a residential area. Section 2710.3.a.ii requires the applicant to demonstrate the unavailability of any industrial or commercially zoned property for the tower. Section 2710.3 requires the five- member Planning Commission, the appointed local planning agency for the County pursuant to Section 163.3174, Florida Statutes,19 to approve all requests to locate communications towers in residential areas at a public hearing in which the applicant demonstrates compliance with the listed criteria. These are consistent, reasonable requirements for the placement of a public utility. Petitioners have failed to demonstrate that Section 2710 is inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: The challenged land development regulations adopted by Bay County Ordinance No. 04-30 are determined to be in compliance. DONE AND ORDERED this 24th day of May, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2007.
The Issue Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Purchase of the Property. In the Spring and Summer of 1985, Thomas W. Anthony began an inquiry relative to the purchase and development of 21.5 acres (original tract) located at the intersection of Capital Circle West and I-10. (R-2, pp. 11-15.) On December 11, 1985, a Deposit Receipt and Contract for Sale and Purchase was executed between Rehold, Inc. and C. Gary Skartvedt, Thomas W. Anthony, and Mary J. Price, d/b/a Denver West Joint Venture (Denver, Colorado) for the purchase of the original tract. (Deposit Receipt and Contract for Sale and Purchase.) On March 14, 1986, the Interstate-Tallahassee West Partnership Agreement was executed and Interstate purchased the original tract from Rehold, Inc. (Chronological Listing of Events, p. 1.) At the time of the closing on the initial purchase of the original tract, the property was zoned C-2, with the exception of a small portion in the northwest corner of the tract which was zoned A-2. (R-2, pp. 34-35, Preliminary Plat approved on January 18, 1990.) Development Chronology. During 1987 and 1988 the original tract was held to realize growth potential in terms of Interstate's economic investment. (Chronological Listing of Events, p. 2.) In 1989, Interstate began negotiations for the sale of a portion of the original tract to Kent C. Deeb (Deeb). (Chronological Listing of Events, p. 2.) On June 26, 1989, Broward Davis and Associates, Inc. prepared a drawing of easement location and depiction of a 25 year flood line relative to the portion of the original tract which was the subject of the negotiations between Interstate and Deeb. (Chronological Listing of Events, p. 2, R-2 p. 20.) On September 12, 1989, Tilden Lobnitz and Cooper, Inc., (Consulting Engineers) recommended a reconfiguration of the original tract relative to the location of high voltage power lines. (Chronological Listing of Events, p. 2.) On October 11,1989, final descriptions of the lakes on the original tract were prepared for Interstate by Broward Davis and Associates. (Chronological Listing of Events p. 2.) On November 13, 1989, a sketch depicting a revised legal description of a proposal to subdivide the subject property was prepared for Interstate by Broward Davis and Associates, Inc. (Chronological Listing of Events, p. 2.) On December 7, 1989, an Environmental Assessment of the site was prepared for Interstate by Jim Stidham and Associates. (Chronological Listing of Events, p. 2.) On December 14, 1989, Deeb executed a Purchase and Sale Agreement which contemplated the conditional purchase of 6.98 acres of the original tract from Interstate. Interstate signed the Purchase and Sale Agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate contends the execution of this Purchase and Sale Agreement resulted in it incurring substantial contractual obligations and argues that these obligations (along with other items and events) are elements in support of "common law vesting" of its development rights. This agreement is the subject of expanded discussion later in this Final Order. The services that Interstate obtained during 1989 (as described in paragraphs 6-11 above) were related to the eventual consummation of the Purchase and Sale Agreement with Deeb. (R-2, pp. 20-21 and 27, Chronological listing of Events, p. 2.) On January 18, 1990, the Tallahassee-Leon County Planning Commission approved Interstate's Preliminary Plat of the subject property. (Chronological Listing of Events, p. 3.) On April 4, 1990, the Tallahassee City Commission approved Interstate's previously filed application to rezone a portion of the subject property from A-2 to C-2. (Chronological Listing of Events, p. 3.) Interstate entered into a written Utility Agreement with the City on or about July 10,1990. (Letter of agreement dated June 25, 1990 from Henry L. Holshouser, Director of Growth Management, to Interstate Tallahassee West.) The Utility Agreement is the subject of expanded discussion later in this Final Order. On August 20, 1990 a Vested Rights Application covering 6.98 acres of the original tract, which is the subject of the Purchase and Sale Agreement between Interstate and Deeb, was approved. (Letter dated August 21,1990 to Kent Deeb from Mark L. Gumula, Director of Planning, Tallahassee-Leon Planning Commission, containing CERTIFICATION OF VESTED STATUS.) The Vested Rights Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.) Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.) As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.) As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.) As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.) As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.) Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.) The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.) As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.) At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property. Costs Associated with Interstate's Property. Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City. Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City. Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City. Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.) These costs were not incurred based upon any representation of the City. Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the 6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City. The Purchase and Sale Agreement with Deeb. Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement. Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.) Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.) The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.) The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan. The Utility Agreement. The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations. The Preliminary Plat Approval. The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations. The A-2 Rezoning Approval. Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations. Interstate's Application for Vested Rights. On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.) The Following information concerning the development of the subject property is contained on the Application: "Kent C. Deeb" is listed as the "owner/agent". Question 3 lists the name of the project as "Interstates Tallahassee West." The project is described as a "Four Lot Subdivision." The project location is described as "lots 1 and 2 Block A Commonwealth Center." The total project costs are estimated at $2.5 Million." Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site Preparation: "Zoning, Platting, and Plans"; D. Construction: "Original Holding Ponds". Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million. The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat." On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate. By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied. During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
Findings Of Fact No changes have been made in the land use plans applicable to the proposed site for Unit No. 3, Power plant No. 3, since the initial public hearing held on November 8, 1974. By Ordinance No. 1914, the City Commission of the City of Lakeland, Florida, has classified and zoned the proposed site for Unit No. 3, Power Plant No. 3; as "Industrial," which classification and zoning allows an electrical power generating facility.
