The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
The Issue The issue presented for consideration herein concerns the standing of Petitioners to challenge the development order entered by the City of Alachua, Florida, granting DPI approval to Turkey Creek, Inc. That order dates from June 15, 1982. In particular, the Motion to Dismiss filed by Respondent Turkey Creek asserts that Petitioners are not members of the class of individuals delineated in Subsection 380.07(2), Florida Statutes, who would have standing to appeal the development order; in that Petitioners are neither "owners" or within other classifications of individuals who might file an action before the Florida Land and Water Adjudicatory Commission, which action is in opposition to the grant of the development order. RECORD Although a transcription was not made of the motion hearing, the following items which are attached to this Recommended Order constitute the factual basis for this decision. Attachment "A" is the Notice of Appeal of development order; Attachment "B" is the petition for review of development order with its attendant exhibits; Attachment "C" is the letter of referral from the Secretary to the Florida Land and Water Adjudicatory Commission to the Director of the Division of Administrative Hearings; Attachment "D" is the answer and affirmative defenses to the petition filed by Turkey Creek; Attachment "E" is the motion to dismiss filed by Turkey Creek; Attachment "F" is the notice of hearing related to the motion to dismiss; and Attachment "G" is the supplemental authority offered by Turkey Creek. For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the Petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.
Findings Of Fact On January 4, 1982, the Turkey Creek Development of Regional Impact Application for Development Approval was filed with the City of Alachua, Florida, City Commission and North Central Florida Regional Planning Council in accordance with Chapter 380, Florida Statutes. It was filed by Turkey Creek, Inc., as applicant. Turkey Creek, Inc. is wholly-owned by Norwood W. Hope, N. Forest Hope and A. Brice Hope. Turkey Creek proposes to develop 5,300 residential dwelling units on 976+- acres, which constitutes a residential development of regional impact according to Chapter 380, Florida Statutes, and Chapter 22F-2.10, Florida Administrative Code, involving real property located in the City of Alachua, Alachua County, Florida, as included in the property description found as an exhibit to the petition document which is Attachment "B" to this Recommended Order. Prior to June 15, 1982, the City of Alachua had previously duly zoned or did simultaneously zone the said 976+-acres PUD and commercial to permit the development as specified in the said application. June 15, 1982, is the date when the City of Alachua adopted the development order for the Turkey Creek Development of Regional Impact. Following the action by the City of Alachua, the Petitioners in this cause, in the person of counsel, filed a notice of appeal of the development order. This appeal was made on June 28, 1982, and on that same date, the petition for review of that development order was filed with the State of Florida, Land and Water Adjudicatory Commission. On August 4, 1982, the matter was transmitted to the division of administrative Hearings for formal hearing by action of the Office of the Office of the Secretary of the Florida Land and Water Adjudicatory Commission. The case was subsequently assigned to this Hearing Officer and a motion hearing was conducted to consider a dismissal of this action based upon Respondent Turkey Creek's allegation that the Petitioners lack standing. The motion hearing was conducted on September 2, 1982. Petitioners are owners of real property included within the Turkey Creek development of regional impact and their property is adjacent or in close proximity to properties which were the subject of the City's zoning decision made in conjunction with approval of the development order.
The Issue The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
Findings Of Fact The Parties Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2 There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property. Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired. His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.) Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213. The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.) The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196. The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands." Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great." Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214- 215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220. The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately 400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411. The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding. § 163.3187(1)(c), Fla. Stat. The Application, Review, and Adoption of the Plan Amendment On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13. The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated: To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise. JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at 12-13.) The application was reviewed, in part, by Mr. Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section 4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.) The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1. The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1. Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id. The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2. The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made: Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area. Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and the LDR Code and if the site is seen as environmentally significant. JE 7 at 4 (italics in original). Ultimately, staff recommended approval only with the following conditions: 1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and 2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy. JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.) On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15. Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint. Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4. Mr. Thomasson addressed the Planning Board. JE 11 at The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8. Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that 13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9. Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9. Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id. at 9-11. Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13. Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id. The requested land use change was approved by a vote of three to two. Id. at 14. On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294. During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven hundred homes will not materially affect level of service." JE 10 at 289. Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292. Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292. Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293. After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294. By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228; PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated: What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan. PE 69 at 2 (emphasis in original). Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3. Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254. On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995. Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5. Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5. Dr. Bingham also addressed the Commission. JE 8 at He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id. After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31. Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was approved by the City Commission on November 9, 2004. JE 8 at 31-32. Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20." JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2. Data and Analysis As more fully discussed in the Conclusions of Law, "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources." Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data shall be the best available existing data, unless the local government desires original data or special studies." Fla. Admin. Code R. 9J-5.005(2)(c). Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate. The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment. Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456. As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A. Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities." Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435. Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential development on the Property. T 434-435, 450. But see Endnote 7. From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441. Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466. Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475. Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id. Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476. For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2. Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548. Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6. Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats. T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525. Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess. T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii. Although he did not "review any set of plans," or have any opinion regarding any specific development proposal, Mr. Friedemann opined that based on his observations in the field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520. Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida. T 501-502. Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1. Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides. T 532-533. Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T 533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538. Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part: Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability. T 586. See also T 610-611. Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622, 629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 - 1-10. During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626. Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628. Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment." T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.) Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11 The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one- third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1. Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D. Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6. The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12. Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3): The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation. Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to develop the upland areas located on this parcel. PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.) Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13. The Genesis Report discussed wetlands on the Property: The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush. Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A). As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE. PE 50 at 13. The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15. Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16. The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50. Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.) Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177. The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186. Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182. "Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map. Ultimate Findings of Fact Regarding Adequacy of Data and Analysis Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his analysis of that information, her opinions have also been disregarded. Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See § 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013. Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4. Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e. Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan. The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district. Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan. Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2005.
The Issue The issue in this case is whether the Walton County Comprehensive Plan (Plan) is in compliance with Chapter 163, Part II, Florida Statutes (the Act), the State Comprehensive Plan (Section 187.201, F.S.), the West Florida Comprehensive Regional Policy Plan, and Chapter 9J-5, Florida Administrative Code (F.A.C.).
Findings Of Fact 1. Rejected, not supported by the weight of the evidence. 2-4. Rejected, not supported by the weight of the evidence. 5. Rejected, argumentative. 6-7. Rejected, not supported by the weight of the evidence. 8. Rejected, argumentative and legal conclusion. 9-12. Rejected, not supported by the weight of the evidence. 13. Rejected, legal conclusion. 14-17. Rejected, not supported by the weight of the evidence and much of these proposed findings are argumentative legal conclusions. 18-21. Rejected, not supported by the weight of the evidence. Also many of these proposed findings are merely arguments of law. 22-36. Rejected, not supported by the weight of the evidence. Again, many of these proposed findings are argumentative and mere conclusions of law as opposed to statements of factual findings supported by the record of evidence admitted at hearing. Rejected, not supported by the weight of the evidence. Accepted. Rejected, argumentative. 40-42. Rejected, subordinate to Hearing Officer's findings. 43. Adopted by reference. 44-48. Rejected, argumentative, mere recitation of testimony. 49. Rejected, not supported by weight of evidence. 50-62. Rejected, not supported by weight of evidence, argumentative, and, again, counsel argues law as opposed to presenting facts. Rejected, argumentative. Rejected, argumentative. Rejected, the failure of the county to adopt a traffic circulation map simply renders moot any need for discussion of adequacy of maps in data and analysis. 66-67. Rejected, see statement for finding number 65 above. 68-69. Rejected, not supported by the weight of the evidence. 70-71. Rejected, argumentative. Rejected, not supported by the weight of the evidence. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, not supported by the weight of the evidence. Counsel continues also to engage in legal argument as opposed to presenting findings of fact. 77-79. Rejected, subordinate to Hearing Officer's findings. Rejected, subordinate to Hearing Officer's finding of fact. Rejected, generally this finding consist of an argumentative conclusion of law. 82-83. Rejected, the weight of the evidence does not support findings that these policies comply with requirements of 9J5. 84-96. Rejected, the greater weight of the evidence does not support any finding that these objectives comply with requirements of 9J5. 97-118. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission 311 Carlton Building Tallahassee, FL 32301 George Ralph Miller, Esquire County Attorney Post Office Box 687 DeFuniak Springs, FL 32433 Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 David J. Russ, Esq. Kenneth D. Goldberg, Esq. Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Fred H. Kent, Jr., Esquire Post Office Box 53075 Jacksonville, FL 32201-3075 Chris Cadenhead, Esquire Post Office Box 5354 Destin, FL 32540 Richard Grosso, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, FL 32314-5948
Recommendation Based on the foregoing, it is hereby recommended that the Administration Commission for enter a final order determining that the Walton County Comprehensive Plan is not in compliance. RECOMMENDED this 13th day of April, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 13th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1080GM The following constitutes my specific rulings in accordance with Section 120.59, Florida Statutes, on Findings of Fact submitted by the parties.
The Issue Whether the Alachua County Comprehensive Plan Amendment adopted by Ordinance No. 20-05 on February 5, 2020 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Petitioner is a Delaware limited-liability company authorized to do business in the State of Florida. Petitioner owns and operates the Legacy at Fort Clarke, a 444-unit apartment complex located on Fort Clarke Boulevard, approximately 100 feet from the property that is the subject of the instant plan amendment challenge (the “subject property”). Petitioner, through its representatives, submitted oral and written comments to Alachua County (“the County”) during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty to adopt and amend its comprehensive plan in compliance with the Act. See § 163.3167(1), Fla. Stat. Intervenor, Fickling, is a Georgia corporation authorized to do business in the State of Florida. Intervenor, NGI, is a Georgia limited-liability company, and is the contract purchaser of the subject property, currently owned by The Gainesville Church, Inc. (“the Church”). James R. Borders is NGI’s president. NGI registered with the Secretary of State to conduct business in Florida on July 22, 2020. NGI is a wholly-owned subsidiary of NGI Investments, LLC, a Georgia limited-liability company which has been registered to conduct business in Florida since 2013. On June 6, 2019, NGI Investments, LLC, and Fickling submitted a letter of intent to purchase the subject property from the Church. In the letter, NGI Investments, LLC, is identified alternatively as “Novare Group.” On July 19, 2019, NGI entered into a purchase and sale agreement with the Church to purchase the subject property, which is signed by Mr. Borders, as Manager of NGI. In the agreement, Fickling is identified as an entity authorized to accept notices on NGI’s behalf related to the agreement. Fickling appears to operate as broker/developer of the subject property. Todd Anderson is the senior vice-president of development for Novare Group (“Novare”), a residential multifamily development group founded in 1992. Mr. Anderson testified that NGI Investments and NGI are known in the development industry as Novare. Since 1992, Novare has developed over 50 multifamily projects—16,000 multifamily residential units—primarily in the southeast United States. Novare began partnering with Fickling in 2017 on a joint venture program called “Lullwater.” The joint venture has developed Lullwater at Blair Stone, an apartment complex in Tallahassee, Florida; Lullwater at Big Ridge, an apartment complex in Hixson, Tennessee; and Lullwater at Jennings Mill, an apartment complex in Athens, Georgia. Lullwater is an ongoing joint venture program with two pending development projects in Florida—the subject property and a site under contract in Ft. Myers. NGI/Novare has a verbal general partnership agreement with Fickling, and is not a registered limited partnership. Shortly prior to closing on each property to develop a project in the Lullwater program, NGI/Novare executes a written joint venture agreement with Fickling. Up to that point, the entities share expenses related to pre-development costs, including pursuit of comprehensive plan amendments and rezonings necessary to secure project approval. Losses on any project are also shared equally. As of the date of the final hearing, NGI/Novare and Fickling had expended almost $500,000 in pre-acquisition costs to develop the subject property, including hiring an engineer, Jay Brown, to prepare the Plan Amendment application, and an attorney and experts to represent the Intervenors at the public hearings, as well as in this proceeding. The exact contribution from each of the partners will be “trued up” at a later date. If the instant plan amendment is not approved, the Intervenors stand to lose the investment of approximately $500,000, as well as the time and effort expended on the project thus far, as well as the opportunity costs associated with having devoted time and resources to this project as opposed to others in the Lullwater program. At the local planning agency public hearing on November 20, 2019, Jay Brown made a presentation regarding the Plan Amendment. He stated, “I’m here to represent a joint venture of development group that’s made up of two companies, the Fickling Company and the Novare Group.” When Mr. Brown made his presentation on the underlying rezoning application at the same meeting, he stated that he was “representing the Fickling Company and Novare Group[.]” Again at the December 10, 2019 County Commission public hearing, Mr. Brown indicated he was representing the developers Fickling and Novare. At the February 25, 2020, adoption hearing, Mr. Brown presented on behalf of the developers. Although he did not identify them by name, he referred to the presentation he had made before that same body on December 10, 2019. The Subject Property and Surrounding Uses The subject property is 25.64 undeveloped acres located on Fort Clarke Boulevard in Gainesville, Florida. It is located in the Alachua County Floridan Aquifer High Recharge Area, which, according to the Comprehensive Plan, is an “[a]rea[] where stream-to-sink surface water basins occur and [an] area[] where the Floridan Aquifer is vulnerable or highly vulnerable.” The subject property is located in an area where the aquifer is highly vulnerable. The subject property is designated “institutional” on the County’s Future Land Use Map (“FLUM”). Under the institutional FLUM designation, the subject property could be developed for a public or private educational use, daycare center, nursery school, community service (e.g., fire and emergency services, law enforcement, or health facilities), public utility or other infrastructure, religious facility, or cemetery. The uses surrounding the subject property are a mix of residential and institutional. Immediately to the west and south is the Eagle Point subdivision, with a FLUM designation of low-medium density residential, which allows residential density at up to four dwelling units per acre (“4 du/acre”). The subdivision is built out at 2 du/acre. Two apartment communities are located across Fort Clark Boulevard from the subject property—Legacy at Fort Clarke (owned by Petitioner) and The Paddock Club Gainesville—both of which are designated medium density on the FLUM, allowing residential development at a density of up to 8 du/acre. Institutional uses border the property on the north and immediate east. A County fire station is located north of the subject property, and a senior living facility is located directly across Fort Clarke Boulevard from the subject property in a “corner” adjoining both Legacy at Fort Clarke and Paddock Club apartments. The subject property is located in the Urban Cluster, which is, according to the Comprehensive Plan, “[a]n area designated on the [FLUM] for urban development, which includes residential densities ranging from one unit per acre to 24 units per acre or greater, non-residential development, and is generally served by urban services.” The Plan Amendment The Plan Amendment changes the FLUM designation of the subject property from institutional to medium-high density residential, allowing development at up to 14 du/acre. The Comprehensive Plan designates Fort Clarke Boulevard as an “Express Transit Corridor” and a “Rapid Transit Corridor.” All new multifamily development along the corridors must be developed as a Traditional Neighborhood Development (“TND”), a compact, mixed-use development which allows for internal capture of vehicle trips and encourages walking and bicycling as the primary means of mobility. TNDs are required to develop with a village center and gridded street network emanating outward from the village center, and are entitled to a development density bonus. Due to its location along the corridors, and the allowable density bonus, the subject property under the Plan Amendment can be developed at a maximum residential density of 16 du/acre.2 Based on the acreage of the subject property, the Plan Amendment authorizes a maximum of 410 dwelling units. The Comprehensive Plan requires TNDs to include non-residential uses at intensities specified in Future Land Use Element (“FLUE”) Policy 1.6.5.2. Based on the acreage of the subject property, the Plan Amendment authorizes a maximum of 267,500 square feet (“s.f.”) of non- residential uses. 2 Policy 1.6.5.1 provides that a TND contiguous with a Rapid Transit or Express Transit corridor is entitled to an additional 8 du/acre in the village center and an additional 6 du/acre in the transit-supportive area outside the village center. Based on the policy, it appears the Plan Amendment authorizes the subject property to be developed at a density greater than 16 du/acre. However, the parties stipulated that the maximum development density of the subject property is 16 du/acre and that stipulation is accepted by the undersigned. Challenges to the Plan Amendment Petitioner alleges (as stipulated by the parties) that the Plan Amendment: (1) creates internal inconsistencies with the existing Comprehensive Plan, in contravention of section 163.3177(2); (2) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); (3) is not “based upon surveys, studies, and data regarding the area, as applicable, including … the character of undeveloped land,” as required by section 163.3177(6)(a)2., and not based on an “analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site,” as required by section 163.3177(6)(a)8.; and (4) is inconsistent with the RPC Plan, in violation of section 163.3184(1)(b). Petitioners further contend Respondent violated public participation requirements for adoption of the Plan Amendment. The challenges generally raise concerns with the impact of the Plan Amendment on area schools, transportation facilities, the Floridan Aquifer, and compatibility with surrounding uses. School Capacity Issues Petitioner alleges the County failed to properly analyze the impact of the Plan Amendment on the County’s school system, and maintains that the Plan Amendment will “overburden already overcrowded schools that serve neighborhood residents.” Suzanne Wynn, director of community planning for the School Board of Alachua County (“SBAC”), performed a school capacity analysis of the Plan Amendment. Ms. Wynn testified that the purpose of a school capacity analysis is to put the school board on notice of an estimated number of students anticipated to be generated from a plan amendment which increases residential density, so the school board can factor that in for future facility planning. In calculating the student impact of the Plan Amendment, Ms. Wynn made a couple of errors, which are reflected in her initial Report: First, she utilized 256 as the total number of dwelling units authorized by the Plan Amendment, which does not account for the density bonus. Second, she applied a student generation multiplier of .08 students per multifamily unit, rather than the correct multiplier of .09. Prior to the County’s adoption of the Plan Amendment, Ms. Wynn’s analysis was updated with the correct number of dwelling units. Utilizing 410 as the maximum number of dwelling units authorized by the Plan Amendment, Ms. Wynn confirmed that the estimated number of students generated from the Plan Amendment is a total of 57, allocated as follows: 33 elementary, 12 middle, and 12 high. At final hearing, Ms. Wynn presented a corrected Report. Utilizing the correct student generation multiplier, the Plan Amendment is projected to generate a total of 63 students, allocated as follows: 37 elementary, 13 middle, and 13 high. In her initial Report, Ms. Wynn concluded that “[s]tudent generation by the [Plan Amendment] at the elementary, middle, and high school levels can be reasonably accommodated during the five, ten, and twenty-year planning period through planned capacity enhancement and management practices.” Ms. Wynn testified that the updated student generation numbers contained in the corrected Report did not cause her to change her conclusion. The number of students generated by the maximum density allowed under the Plan Amendment can be accommodated during the school board’s applicable planning periods through capacity enhancements and management practices. The SBAC 2019 Annual Report on School Concurrency (“2019 Concurrency Report”) notes that “significant growth [in middle school students] is anticipated in the next five years, followed by slower growth rates during the latter part of the 10-year planning period.” The subject property is located in the Fort Clark School Concurrency Service Area (“SCSA”), in which the middle school is operating above capacity and enrollment “is expected to exceed capacity during the ten-year planning period.” The 2019 Concurrency Report notes that the deficiencies in the Fort Clarke SCSA are addressed in the SBAC 2019-2030 Strategic Plan. In other words, the SBAC has already anticipated increased enrollment at the middle school serving the subject property, and has plans to reduce overcrowding and accommodate new students through its strategic planning process. Petitioner argued that the specific plans to reduce overcrowding and accommodate new growth in the Fort Clark SCSA were not introduced in evidence and Ms. Wynn’s testimony was speculative. However, Petitioner introduced no evidence to refute Ms. Wynn’s testimony and her conclusion that the SBAC can accommodate the new middle school students estimated to be generated by the Plan Amendment. Petitioner next argues that the Plan Amendment is internally inconsistent with Public School Facilities Element (“PSFE”) Policy 1.1.3, which governs the geographic basis for school capacity planning, and Policy 1.1.5, which describes the SBAC report to the County. In describing the analysis of Plan Amendments to be performed by the SBAC, Policy 1.1.3 specifically provides, “[f]or purposes of this planning assessment, existing or planned capacity in adjacent SCSAs shall be not be considered.” Petitioner alleges Ms. Wynn relied upon existing or planned capacity outside the Fort Clark SCSA in conducting her analysis, in violation of Policy 1.1.3. It is important to note that Policy 1.1.3 requires the SBAC to assess the Plan Amendment “in terms of its impact (1) on the school system as a whole and (2) on the applicable SCSA(s).” Ms. Wynn’s analysis states, in pertinent part, as follows: The [Plan Amendment] is situated within the Fort Clark [SCSA] … [which] contains one middle school with a capacity of 900 seats. The current enrollment is 1,042 students representing a 116% utilization compared to an adopted LOS standard of 100%. The [Plan Amendment] petition is projected to generate 13 middle school students at buildout. Districtwide middle school capacity is well within the 100% LOS throughout the 10 year planning period. The School District is evaluating options for relieving capacity deficiencies at Fort Clark Middle. Ms. Wynn’s analysis does not ignore the impact of the Plan Amendment on the applicable SCSA. Implicit in Ms. Wynn’s analysis is the conclusion that the Fort Clark SCSA does not have adequate capacity to accommodate the maximum number of students estimated to be generated by the Plan Amendment. Ms. Wynn’s analysis also assesses the impact of the Plan Amendment districtwide, as required by the Policy, concluding that there is adequate capacity within the applicable planning periods. Finally, Petitioner contends that Ms. Wynn’s analysis falls short of the Policy’s direction to “include its recommendations to remedy the capacity deficiency including estimated cost” if the SBAC “determines that capacity is insufficient to support the proposed land use decision.” Ms. Wynn’s report does not conclude that a capacity deficiency exists within the district to accommodate the new middle school students estimated to be generated by the Plan Amendment. If no deficiency is determined, no recommendation to remedy a deficiency is required. While the report indicates a deficiency in the Fort Clark SCSA, there is no requirement that the students be accommodated within that particular SCSA. Perhaps the SBAC plans include changing school zones to accommodate those students at a school other than Fort Clark Middle, where capacity does exist. Perhaps it plans to build a new middle school that will add capacity. Perhaps it plans to add portables at Fort Clark Middle. Whatever the plans are, Ms. Wynn’s conclusion that the projected number of students “can reasonably be accommodated during the five, ten, and twenty year planning period through planned capacity enhancement and management practices” was unrebutted.3 Transportation Issues Petitioner contends that the analysis of the transportation impact from the Plan Amendment is flawed because: (1) it was not based on the maximum buildout allowed by the Plan Amendment; and (2) failed to meet the requirements of Policy 1.1.6.11 of the Transportation Mobility Element (“TME”). Based on the maximum development potential of 410 multifamily dwelling units and 267,500 s.f. of non-residential development, the County determined the Plan Amendment will generate approximately 9,364 new daily vehicular trips to Fort Clark Boulevard. Petitioner asserts that this analysis is erroneous because the methodology employed by the developer allocated the 267,500 s.f. of non- residential development evenly between retail and office. Petitioner asserts that, because the County’s land development code allows the non-residential square footage to be developed at up to 75 percent retail, the project should have been analyzed based on a 75/25 retail-to-office split. Petitioner argues that failure to analyze the traffic generation in that way undercounts the vehicular trips to be generated by the Plan Amendment at its maximum development potential. Petitioner introduced the testimony of John P. Kim, who was accepted as an expert in transportation planning and engineering. Mr. Kim offered no testimony regarding the use of the 75/25 retail-to-office split versus the 3 Petitioner complained that Ms. Wynn’s testimony lacked specificity and found fault with Respondent for not introducing the SBAC Strategic Plan into evidence to support its position that the anticipated students can be accommodated with planned capacity improvements. However, Petitioner, not Respondent, carries the burden of proof in this case to demonstrate that the “planned capacity enhancement and management practices” are insufficient to accommodate those students. 50/50 retail-to-office split for non-residential uses allowed under the Plan Amendment. Petitioner introduced no evidence that the methodology utilizing the 50/50 retail-to-office split was not a professionally-acceptable methodology for calculating trip generation based on the maximum development potential of the subject property under the Plan Amendment. Next, Petitioner argues that the Plan Amendment is not supported by a roadway-capacity analysis for any of the major roadways that will serve the subject property. Petitioner maintains that the applicants for the Plan Amendment were required to submit a study demonstrating that adopted Level of Service (“LOS”) guidelines on those roadways can be achieved given the projected traffic generation from the Plan Amendment. To that end, Petitioner alleges the Plan Amendment is inconsistent with TME Policy 1.1.6.11, which provides as follows: Large scale comprehensive plan amendments to the [FLUE] or Map that result in a greater transportation impact shall require the entity requesting the amendment to demonstrate that the adopted LOS guidelines for the affected Urban Transportation Mobility District are achieved and that additional required infrastructure is fully funded. Applicants may only include projects that are fully funded and scheduled to commence construction within one (1) year of approval of the Comprehensive Plan Amendment. Petitioner’s expert, Mr. Kim, expressed his opinion that the policy requires the applicant to demonstrate that the LOS guidelines can be achieved under the Plan Amendment, and that the additional infrastructure required to achieve the guidelines is “fully funded and scheduled to commence construction within one (1) year of approval of the Plan Amendment.” Mr. Kim prepared an analysis to demonstrate that the Plan Amendment will prevent achievement of the applicable LOS guidelines, as the basis for his opinion that the Plan Amendment is not supported by adequate data and analysis, and inconsistent with TME Policy 1.1.6.11. Mr. Kim analyzed the project’s impact on the specific segment of Fort Clark Boulevard immediately adjacent to the subject property, utilizing roadway capacity data from the 2018 Multimodal Level of Service (“MMLOS”) Report published by the Metropolitan Planning Organization for the Gainesville Urbanized Area. According to the report, that segment of Fort Clark Boulevard has an adopted LOS of “D” and a maximum service volume of 13,985 vehicles per day. The report indicates the particular segment has available capacity for only 1,319 daily vehicles. Mr. Kim concluded that the capacity for 1,319 daily vehicles will easily be exceeded by the 9,364 trips projected to be generated from development allowed under the Plan Amendment. Mr. Kim also looked at the capacity of the two roadways at which Fort Clark Boulevard terminates—Northwest 23rd Avenue to the north, and Newberry Road to the south—and found that they are both operating at above their capacity, according to the report. In Mr. Kim’s opinion, the traffic projected to be generated by development anticipated under the Plan Amendment will further deteriorate the LOS on those roadways. The 2018 MMLOS Report shows the segment of Fort Clark Boulevard and Northwest 23rd Avenue, which were analyzed by Mr. Kim, as located within a Transportation Concurrency Exception Area (“TCEA”). The Florida Legislature repealed the statewide requirement for traffic concurrency in 2011. See ch. 2011-139, § 15, Laws of Fla. In 2019, the County rescinded transportation concurrency as a part of its Evaluation and Appraisal of its comprehensive plan. See § 163.3191(1), Fla. Stat. (“At least once every 7 years, each local government shall evaluate its comprehensive plan to determine if plan amendments are necessary to reflect changes in state requirements in this part since the last update of the comprehensive plan[.]”). The County also changed its areawide LOS standards to “guidelines.” These changes are reflected in the County’s 2040 Comprehensive Plan, adopted December 13, 2019, and against which this Plan Amendment is compared for internal consistency. Mr. Kim has never conducted transportation analysis in Alachua County prior to the case. Likewise, Mr. Kim has not performed transportation analyses in any local government which has repealed transportation concurrency. Mr. Kim testified that he understood the County’s transportation mobility system utilizes an area-wide capacity analysis, as opposed to individual roadway capacity. Mr. Kim’s analysis was wholly irrelevant to the County’s area-wide capacity analysis. Under the County’s system, the County is divided into three transportation mobility districts: Northwest, Southwest, and East. The Plan Amendment is located in the Northwest District. The County’s expert in land use and transportation, Chris Dawson, is the County’s transportation planning manager. Mr. Dawson analyzed the Plan Amendment for transportation impacts. Mr. Dawson determined that sufficient capacity exists in the Northwest Mobility District for the additional 9,364 new daily trips generated from the Plan Amendment under the maximum development potential. For his analysis, Mr. Dawson utilized the data and analysis compiled for the County’s 2019 Evaluation and Appraisal of the Comprehensive Plan. That data showed a maximum service volume of 408,655 trips in the Northwest District, and an average annual daily trip volume of 265,237. In other words, available capacity exists in the district for an additional 143,418 trips, well below the projected generation of 9,364 trips. Mr. Dawson opined that the Plan Amendment will not prevent the Northwest District LOS guidelines from being achieved. Petitioner criticized Mr. Dawson’s analysis as based on incorrect data because the transportation mobility district level of service analysis contained in the Evaluation and Appraisal Report (“EAR”) was based on the County’s 2017 data. Petitioner opined that Mr. Dawson should have updated those trip counts to account for development approved since 2017 in the Northwest District. Ms. Brighton conducted the traffic generation analysis for Intervenors. She testified that, given the available land in the Northwest District, it is unrealistic to assume that the growth in the last three years would have consumed all the roadway capacity in the District. In fact, she testified that, even if the County collected new raw data of actual trips, the capacity may be even higher than it was in 2017, because growth is not realized in every year; some years are even marked by negative growth. Petitioner did not introduce any readily-available data which was more recent than that relied upon in the County’s 2019 EAR update. Petitioner’s overarching concern is that Fort Clark Boulevard is a two- lane road, operating at either near or over capacity, unable to handle the new trips anticipated to be generated by development allowed under the Plan Amendment; that the County has no plans to widen the roadway to improve capacity; and that, even if the County is relying on total capacity in the District, rather than a summation of the capacity of each individual roadway in the District, it failed to update the 2017 data to determine actual capacity at the time the Plan Amendment was adopted. The County’s multi-modal approach to transportation planning anticipates congestion along certain corridors, and encourages compact, higher-density development in the Urban Cluster to support transit use. See TME Policy 1.1.3 (“The intent of the [mobility districts] are … [t]o recognize that certain roadway corridors will be congested and that congestion will be addressed by means other than solely adding capacity for motor vehicles and maintaining roadway level of service on those corridors.”). Congestion would actually serve the County’s goal of increasing demand for transit options and bicycle and pedestrian use in lieu of creating road capacity by traditional means, such as road-widening, adding lanes, and creating or extending turn lanes. See TME Policy 1.1.5 (“Over the time horizon of the Comprehensive Plan, as the densities and intensities within the Urban Cluster necessary to support transit are realized, the County shall transition from providing new capital infrastructure for a multi-modal transportation network to providing frequent transit service along rapid transit corridors.”) In the Comprehensive Plan, Capital Improvements Element (“CIE”), the County has planned two dedicated transit lanes on Fort Clark Boulevard, between Newberry Road and Northwest 23rd Avenue, the segment immediately adjacent to the subject property. This improvement is planned to implement the County’s designation of Fort Clark Boulevard as a rapid transit corridor. Development projects in the Urban Cluster are charged a multi-modal transportation mobility fee (“fee”) in satisfaction of their obligation to mitigate transportation impacts within the applicable district. Intervenors are expected to pay a fee of approximately $1 million to the County in mitigation. Petitioner elicited testimony from the transportation experts that the County is not required to spend the fee on Fort Clark Boulevard. It is true that the County can spend the fee on improvements anywhere within the District; however, given the structure of the Comprehensive Plan, it is most likely the funds will be spent to further planned improvements adopted in the CIE. See TME Policy 1.1.6 (“The Multi-Modal Infrastructure Projects in the [CIE] are identified to meet the adopted level of service guidelines and proactively address projected transportation needs from new development and redevelopment within the Urban Cluster by 2040”). Compatibility Petitioner alleges the maximum density and intensity of development allowed under the Plan Amendment is incompatible with surrounding uses, especially the low-density residential neighborhood to the west and south of the subject property. Petitioner introduced the testimony of Cecelia Ward, who was accepted as an expert in land use and comprehensive planning. Ms. Ward opined that residential density of up to 16 du/acre is incompatible with low- density residential and community institutional land uses in the area. Further, she opined that the scale and intensity of the non-residential uses allowed by the TND were inconsistent with the character of the existing neighborhood. The Comprehensive Plan does not define “compatibility.” The Act 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.” § 163.3164(9), Fla. Stat. Both the Intervenors’ land use planning expert, David Depew, and the County’s principal planner for development services, Jeffrey Hays, agreed that merely locating high-density residential development adjacent to low- density residential development is an insufficient basis on which to determine an unduly negative influence over time. All five higher-density TNDs in the County are located adjacent to existing lower-density residential development. No evidence was introduced to suggest that the proximity of TNDs to those neighborhoods has destabilized the low-density residential neighborhoods. Moreover, the Comprehensive Plan specifically addresses compatibility between TNDs and single-family developments. FLUE Policy 1.2.1 provides that “appropriately scaled and designed non-residential land uses are compatible with single family or multi-family residential development” in mixed-use TNDs. Despite Ms. Ward’s opinion that the Plan Amendment would allow non-residential development out of scale with surrounding neighborhoods, she admitted that the specific site-design policies for TNDs would apply to the Plan Amendment. Further, the Comprehensive Plan policies governing neighborhood design and site standards will also apply to the development allowed under the Plan Amendment. Those policies provide that “[u]rban development shall incorporate design techniques to promote integration with adjacent neighborhoods.” FLUE Policy 1.4.1.4. Design techniques include “transitional intensity (types of uses), stepped density, buffering, boundaries, landscaping and natural open space.” FLUE Policy 1.4.1.4(a). The Plan provides that “[s]pecial attention shall be provided to the design of development and neighborhood edges, which shall be designed to be integrated into the surrounding community.” FLUE Policy 1.4.1.4(c). Ms. Ward opined that the existing institutional designation provides for greater compatibility between development proposed on the subject property and the adjoining neighborhood. FLUE Policy 5.2.1 lists the threshold criteria which must be met to establish an institutional use. Ms. Ward specifically identified the following two criteria: (1) “Compatibility of the scale and intensity of the use in relationship to surrounding uses, taking into account impacts such as noise, lighting, visual effect, traffic generation, [and] odors”; and (2) “Preservation and strengthening of community and neighborhood character through design.” Ms. Ward expressed the opinion that removing the subject property from the institutional designation removes these protections for the adjacent low-density neighborhood. However, the TND-specific design policies likewise require establishment of compatibility through project design, scaling, and integration with the adjacent neighborhoods. Just because the TND policies do not specifically cite “noise, lighting, [and] visual effect,” does not mean the County will not consider those development aspects in approving the specific site design for the subject property. The nature of institutional uses makes it more likely that off-site impacts will be incompatible with residential, hence the need for enhanced analysis of those specific types of impacts. For example, emergency fire and law enforcement uses are more likely to generate offsite noise impacts than an adjoining residential or mixed use; and public utility uses are more likely to generate offsite lighting impacts, due to security lighting needs. The Plan Amendment does not jeopardize the stability of the adjacent single-family neighborhood by “removing protections” provided under the institutional land use category, as suggested by Ms. Ward. Data on Suitability Petitioner alleges the Plan Amendment is not supported by relevant data and analysis concerning the suitability of the subject property for the density and intensity of development allowed. County staff performed a suitability analysis related to the Plan Amendment application as part of its review. The suitability analysis included consideration of significant habitat areas, location in flood zones, impact on aquifer recharge, appropriateness for the level of density, and the availability of water and sewer, emergency services, solid waste, and other public utilities to serve the allowable development. At hearing, Petitioner focused on the location of the subject property in the high aquifer recharge area, alleging the County did not analyze data to determine if the TND development was suitable for this site. Mr. Hays testified that the staff review included consideration of the location of the subject property within that sensitive area. Mr. Hays explained that the County has adopted special storm-water treatment criteria for development within the high aquifer recharge area. In formulating her opinion that the site is not suitable for the density and intensity of development allowed under the Plan Amendment, due to its location in the high aquifer recharge area, Ms. Ward did not consider the County’s development regulations for karst-sensitive lands that comprise much of western Alachua County. Further, the impact on the aquifer as a regional resource was evaluated by the North Central Florida Regional Planning Council (“RPC”) during its review of the Plan Amendment. The RPC found that “significant adverse impacts [to the Floridan Aquifer] are not anticipated as the County Comprehensive Plan contains goals and policies to mitigate impacts to the [aquifer].” Petitioner did not prove the Plan Amendment is not supported by data and analysis regarding the suitability of the subject property for the development allowed thereunder. Consideration of Alternatives Petitioner alleges the Plan Amendment is inconsistent with FLUE Policy 7.1.24, which provides, as follows: Prior to amending this Element, every consideration shall first be given to alternatives to detailed map changes. Such alternatives might include clarifying text amendments and additional policy statements. Ultimately, Petitioner’s argument is that the subject property is more appropriate for low-density or medium-density, rather than the medium-high density category applicable under the Plan Amendment. Petitioner sought to prove that the County did not consider a lower-density on the subject property as an alternative. However, the policy requires the County to consider alternatives to detailed map changes; not alternative types of map changes. The alternatives contemplated by the policy are “clarifying text amendments” and “additional policy statements.” Ms. Ward suggested three alternatives that could have, and perhaps should have, been considered by the County: (1) a change to low-density or medium-density category; (2) a text amendment to allow TNDs within institutional parcels along the Fort Clark Boulevard (as an express transit corridor); and (3) additional policy statements that would allow residential use while providing “compatibility provisions” to ensure “protection in terms of compatibility and intensity and density.” Ms. Ward’s first suggestion is a different type of map amendment, which, as addressed above, is not the type of alternative contemplated by the policy. Ms. Ward’s second suggestion is hardly a “clarifying” text amendment. It takes the form of an overlay amendment authorizing a new use (TNDs) on a limited number of properties (institutional) in a specified location (along Fort Clark Boulevard). Further, this suggestion does not address the heart of the issue—what density of residential development would be allowed on the subject property. TNDs only provide for density bonuses; the base density is established by the underlying land use category, which, in this case, is institutional, and which provides for no residential density. Ms. Ward’s third suggestion was not fully fleshed-out at the final hearing. It appears she was suggesting an amendment to allow residential uses in the institutional land use category, which would include specific provisions to protect those residential uses from the inevitable incompatibility with existing institutional uses already developed on those sites. At any rate, the suggestion is again, more than a mere “clarifying text amendment.” Mr. Hays testified that the only alternative text amendment he could envision that would accomplish the applicant’s goal of developing the property for residential, would be an amendment to allow residential development in the institutional category. Mr. Hays testified that such a change would have unintended, and potentially negative, consequences when applied to all the institutionally-designated properties in the County. Moreover, Mr. Hays testified that there is no alternative that he, as a professional planner, would recommend to the Board of County Commissioners. On this issue, Mr. Hays’ testimony is accepted as more persuasive than Ms. Ward’s. Other Alleged Internal Inconsistencies Petitioner alleges that adoption of the Plan Amendment creates internal inconsistencies in the Comprehensive Plan, specifically between the Plan Amendment and the FLUE Goal and Principles, which read as follows: Goal Encourage the Orderly, Harmonious, and Judicious Use of Land, Consistent with the Following Guiding Principles. Principle 1 Promote sustainable land development that provides for a balance of economic opportunity, social equity including environmental justice, and protection of the natural environment. Principle 2 Base new development upon the provision of necessary services and infrastructure, focus on urban development in a clearly defined area and strengthen the separation of rural and urban uses. Principle 3 Recognize residential neighborhoods as a collective asset for all residents of the county. Principle 4 Create and promote cohesive communities that provide for a full-range and mix of land uses. The Goal and Principles at issue are aspirational in that they do not specifically mandate any action that can be objectively or quantitatively measured for consistency. Rather, the Goal and Principles express a community vision. In short, they are not self-enforcing. The policies contained within the Comprehensive Plan establish the means by which the County intends to achieve its Goal, consistent with the Principles established in each element. It is to the policies that one must look to be informed about how the Comprehensive Plan will be applied to a particular property or situation. When determining internal consistency, it is necessary to consider the Comprehensive Plan as a whole and goals must not be taken out of context as Petitioner has done in this case. For example, Petitioner’s expert planner, Ms. Ward, objected to siting the density and intensity represented by the requirement of this Plan Amendment to build out as a TND because it would be in conflict with the FLUE Goal of “orderly and harmonious” development. Ms. Ward confined her analysis to the limited context of the FLUE Goal and Principles and did not consider the implementing FLUE general strategies or policies. Had she examined the policies, the County’s express intent to increase density within the Urban Cluster for myriad reasons would have been evident. Petitioner did not prove that the Plan Amendment renders the Comprehensive Plan internally inconsistent with the cited Goal and Principles. Public Participation Petitioner contends that the County failed to comply with public participation requirements of both the Act and the Comprehensive Plan in adopting the Plan Amendment. FLUE Policy 7.1.25 provides that “[a]ll amendments to the Comprehensive Plan shall meet the requirements of Chapter [sic] 163.3181, Florida Statutes for public participation in the comprehensive planning process.” The County requires the applicant for a large-scale plan amendment to hold a noticed neighborhood workshop prior to the public hearings on the plan amendment. Intervenors’ agent conducted the required neighborhood workshop on August 22, 2019, and Petitioner’s representative, Lisa Allgood, attended that workshop. During the County’s review of the Plan Amendment application, Petitioner submitted written comments, through its agent, Steven Tilbrook, to the County through email communications with County staff and commissioners. The County held three separate, properly-noticed, public hearings; one before the local planning agency, and two before the full County Commission. Petitioner participated in all three public hearings through its representative, Mr. Tilbrook. Nevertheless, Petitioner alleges that its rights were violated because the applicant was given more time to make its presentation at the public hearings than Petitioner was to make its comments. It is difficult to determine exactly how much time Petitioner was afforded at the public hearings based on the transcripts. At the local planning agency public hearing, Petitioner’s presentation continued for several pages of transcript, and at one point, the chair extended Petitioner an additional ten minutes. At the first County Commission public hearing, Petitioner was given ten minutes, but gave an uninterrupted presentation of an unknown length, followed by a presentation by Petitioner’s expert transportation planner. Following the presentation, one of the commissioner’s engaged Mr. Tilbrook in a question and answer session. At the second County Commission public hearing, Petitioner’s transportation expert addressed the commissioners, as well as Petitioner’s corporate representative, Ms. Allgood, and attorney, Mr. Tilbrook. Following adoption of the Plan Amendment, Petitioner timely filed a Petition challenging the Plan Amendment, which gave rise to the instant proceeding. Regional Policy Plan Petitioner further alleges that the Plan Amendment is not in compliance because it is inconsistent with the RPC Plan, specifically Goals 5.1 and 2.14. Regional Goal 5.1 states the regional goal to “[m]itigate the impacts of development to the Regional Road Network as well as adverse extrajurisdictional impacts while encouraging development within urban areas.” Goal 5.1 is implemented by Policies 5.1.1 through 5.1.4, which describe how the RPC determines mitigation of local government plan amendment impacts to regional resources. Policy 5.1.1. provides that “within … urban development areas where the local government comprehensive plan includes goals and policies which implement Transportation Planning Best Practices, adverse impact to the Regional Road Network are adequately [mitigated].” In other words, where a plan amendment is located in an urban development area, and the local government comprehensive plan contains transportation planning best practices, the RPC Plan deems the impacts from a local government plan amendment on the regional roadway network “mitigated.” The Plan Amendment is located in the Urban Cluster, an area of the County designated for urban development. Fort Clark Boulevard, also known as State Road 26 (“S.R. 26”), is part of the regional road network. Section 163.3184(3)(b)2. requires the regional planning agency to review a local government plan amendment and comment specifically on “important state resources and facilities that will be adversely impacted by the amendment if adopted.” The RPC reviewed the Plan Amendment and determined that “the County Comprehensive Plan Transportation Element contains policies consistent with Best Transportation Planning Practices contained in the [RPC Plan].” The RPC concluded, consistent with Goal 5.1 and Policy 5.1.1., that adverse transportation impacts of the Plan Amendment to the regional road network “are adequately mitigated.” Nevertheless, Ms. Ward testified that, based on Mr. Kim’s transportation impact analysis, “there was nothing to rely on as transportation best planning practices in the review of this amendment application.” Petitioner introduced no evidence to refute the RPC’s determination that the County’s Comprehensive Plan contains policies “consistent with Best Transportation Planning Practices contained in the [RPC Plan].” Regional Goal 2.14 establishes the RPC’s intent to “[e]nsure future growth and development decisions maintain a balance between sustaining the region’s environment and enhancing the region’s economy and quality of life.” Goal 2.14 is implemented by Policies 2.14.1 and 2.14.2, which establish the desire of the RPC to “[c]reate and sustain vibrant, healthy communities that attract workers, businesses, residents, and visitors to the region”; and “Promote and incentivize local government in the development of vibrant city centers,” respectively. Petitioner presented no evidence that the Plan Amendment would not create a community that would attract workers, businesses, residents, and visitors to the region. Petitioner presented no evidence that the Plan Amendment would not develop as a vibrant city center. Instead, Ms. Ward opined that the Plan Amendment violates the “balance” required by Goal 2.14 because the density and intensity of development on the subject property will negatively affect surrounding communities. This is a restatement of Petitioner’s compatibility argument. Petitioner did not prove the Plan Amendment is incompatible with the adjacent low-density residential development. Petitioner did not prove the Plan Amendment is inconsistent with the RPC Plan.
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 that the Comprehensive Plan Amendment adopted by Ordinance No. 20-05 on February 5, 2020, is “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. COPIES FURNISHED: Joni Armstrong Coffey, Esquire Akerman LLP Suite 1100 98 Southeast 7th Street Miami, Florida 33131 (eServed) Kristofer David Machado, Esquire Akerman LLP Suite 1100 98 Southeast 7th Street Miami, Florida 33131 (eServed) Sylvia Torres, Esquire Alachua County 12 Southeast 1st Street Gainesville, Florida 32601 (eServed) Patrice Boyes, Esquire Patrice Boyes, P.A. Suite 1120 5700 Southwest 34th Street Gainesville, Florida 32608 (eServed) Corbin Frederick Hanson, Esquire Alachua County 12 Southeast 1st Street Gainesville, Florida 32601 (eServed) Stephen K. Tilbrook, Esquire Akerman LLP Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Wesley J. Hevia, Esquire Akerman LLP Suite 1100 98 Southeast 7th Street Miami, Florida 33131 (eServed) Bryan West, Esquire Akerman LLP Suite 1100 98 Southeast 7th Steet Miami, Florida 33131 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue Whether the Respondent violated Subsection 112.3145(2)(b), Florida Statutes (1996 Supp.), by failing to file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment to the Northeast Florida Regional Planning Council and/or Subsection 112.3145(2)(b), Florida Statutes (1997), by failing to timely file her 1997 CE Form 1, Statement of Financial Interests.
Findings Of Fact Based on the evidence presented, the following findings of fact are made: The Respondent, Betty Burney, was appointed to the Northeast Florida Regional Planning Council on October 16, 1996, for a term expiring October 1, 1998. The Northeast Florida Regional Planning Council is a broad-based agency that is authorized by Section 186.504, Florida Statutes. The Northeast Florida Regional Planning Council has two primary statutory responsibilities: (1) reviewing local government comprehensive plans under Section 163.3174, Florida Statutes; and (2) coordinating the developments of regional impact process under Section 380.06, Florida Statutes. Both of these activities are land planning responsibilities. The Respondent, as a member of the Northeast Florida Regional Planning Council, held a public position and, as such, was subject to the requirements of Subsection 112.3145(l)(a), Florida Statutes. As a member of the Northeast Florida Regional Planning Council, the Respondent was required to file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment. The Respondent was specifically advised of the requirement to file a CE Form 1, Statement of Financial Interests, within 30 days in her appointment letter. In addition, the Executive Director of the Northeast Florida Regional Planning Council reviewed this requirement with the Respondent in an orientation session. The disclosure required to be filed within 30 days would have been for calendar year 1995. The Respondent did not file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment. The Respondent filed a CE Form 1, Statement of Financial Interests, dated April 21, 1997, for the calendar year 1996. As a member of the Northeast Florida Regional Planning Council, the Respondent was required to file a CE Form 1, Statement of Financial Interests, for the year 1997. The 1997 CE Form 1, Statement of Financial Interests, was due to be filed by July 1, 1998, with a grace period extending to September 1, 1998. The Respondent's name was on the list of persons required to file financial disclosures provided to the Duval County Supervisor of Elections by the Ethics Commission in 1998, filings required for calendar year 1997. A CE Form 1, Statement of Financial Interests, was mailed to the Respondent by the Duval County Supervisor of Elections for 1997. When the Respondent failed to file her financial disclosure by July 1, 1998, the Duval County Supervisor of Elections sent her a certified letter notifying her of her delinquency. The Respondent did not claim the certified letter, and never filed a CE Form 1, Statement of Financial Interests, for the year 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that the Respondent, Betty Burney, violated Subsection 112.3145(2)(b), Florida Statutes, in the two instances alleged, and imposing a civil penalty of $2,000 for her failure to file a CE Form 1, Statement of Financial Interests within 30 days of her appointment to the Northeast Florida Regional Planning Council and $2,000 for her failure to file her 1997 CE Form 1, Statement of Financial Interests for a total fine of $4,000. DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 20th day of February, 2002. COPIES FURNISHED: Betty Burney 2553 Soutel Drive Jacksonville, Florida 32208 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
