The Issue The issues for determination in this case are whether certain portions of Amendment RU-27 to the Sarasota County Comprehensive Plan, as adopted in Sarasota County Ordinance 96- 027, are in compliance with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
Findings Of Fact Petitioner, GROWTH-RESTRAINT AND ENVIRONMENTAL ORGANIZATION, INC. (GEO), is a non-profit environmental advocacy organization. By stipulation, GEO is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Petitioner, ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC. (ECOSWF), is a Florida non-profit corporation which has a number of corporate and individual members in Sarasota whose corporate purposes may be affected by RU-27. ECOSWF has engaged in a variety of advocacy and educational activities in Sarasota County and submitted oral comments to Sarasota County during the adoption of RU-27. Petitioner, MIAKKA COMMUNITY CLUB, INC. (MCC), is a non- profit community corporation whose members primarily reside in Sarasota County. By stipulation MCC is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Petitioner REBECCA AYECH (AYECH) owns property and resides in Sarasota County and submitted oral and written comments to Sarasota County on RU-27. By stipulation AYECH is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Respondent DEPARTMENT OF COMMUNITY AFFAIRS (DEPARTMENT) is the State land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes pursuant to Sections 163.3184, 163.3189, Florida Statutes. Respondent SARASOTA COUNTY (COUNTY) is a local government with responsibility to prepare a comprehensive plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171, Florida Statutes. The Challenged Amendment Ordinance 96-27, also known as amendment RU-27, was adopted by Sarasota County on April 30, 1996. RU-27 substantially revised the future land use element (FLUE) and future land use map (FLUM). Sarasota County is approximately 563 square miles in size. The revisions to the FLUM contained in RU-27 as a whole substantially affect approximately 305,000 acres. Petitioners’ only challenge to RU-27 as a whole is that the plan improperly fails to incorporate a five-year time frame for land use. In all other respects, Petitioners’ challenge is limited to two parcels of land comprising approximately 200 acres located immediately east of I-75 and immediately north of Fruitville Road. These parcels are identified as “A” and “C” on page 5 of Petitioners’ Exhibit 40. On the pre-amendment FLUM, Parcels A and C are designated semi-rural. “Semi-rural” provides for residential densities up to one unit per two acres. The post-amendment FLUM provided for the following land uses for parcels A and C: the western half of Parcel A was "major employment center/interstate regional office park" (MEC/IROP) and the eastern half was "moderate density residential" (MDR); the northern (approximate) third of Parcel C was "moderate density residential" (MDR), and the southern two thirds was "major employment center" (MEC). MEC is described in the FLUE as: Coordinated development of industrial, commercial, service and governmental uses within a park-like setting" which is encouraged in MEC. Commercial general uses, which are customarily accessory and incidental to the primary uses allowed within a MEC may be permitted, provided that such commercial uses are located and oriented internally, are consistent with an adopted Critical Area Plan or Development of Regional Impact, are located at least 300 feet from the boundary and do not exceed five percent of the total land area. Class A quality type development is encouraged, particularly along 1-75 pursuant to FLUE Policy 3.3.5. MDR-type residential densities can be allowed in the MEC districts up to 25 of the area consistent with FLUE Policy 3.1.2. All development within an MEC must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC are: PCD, PID, I, ILW, GU and PRD. MEC/IROP FLUE policies permit "planned office parks including high technology research and development centers" pursuant to FLUE Policy 3.3.4. All development within an MEC/IROP must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC/IROP are: PCD, PID, I, ILW, GU and PRD. MDR as described in the FLUE Policy 3.1.1 is development within the Urban Service Area (USA) having "gross densities equal to or greater than two dwelling units per acre and less than five dwelling units per acre." Implementing Zoning Categories for MDR are: RSFI, RSF2, RSF3, RSF4, RMH and PRD. Subject Properties Parcels A and C had initially been identified as a "study area" in the transmitted version of RU-27. At the adoption stage public hearing the Sarasota County Planning Department staff presented recommendations as to the designation of Parcels A and C and the extension of the Urban Service Area to encompass those parcels. At the time of the adoption of RU-27, Parcel A was substantially undeveloped, and consisted of about 60-70% pine flatwoods; 35% mesic hammock; and three small freshwater wetlands. There was a dolomite waste water treatment facility in the northwest corner. Further, a two-lane paved road oriented north-south ran inside of the western boundary, connecting the mining operation to the north with Fruitville Road to the south and then west to 1-75. At the time of the adoption of RU-27, Parcel C was mostly cleared open land with approximately a dozen houses and other structures. Adjacent Area At the time of RU-27's adoption, immediately north of Parcel A was a Florida Power and Light Company transmission line and easement, and north of the easement was a series of mining operations and a Development of Regional Impact industrial and office park development. At the time of RU-27's adoption, east of Parcel A was a low density residential area known as the Fox Creek housing development, generally developed with five-acre parcels. At the time of RU-27's adoption, east of Parcel C was a high density area known as the "Sun `N Fun" recreational vehicle and mobile home park. At the time of RU-27's adoption, across Fruitville Road and to the south of Parcel C was what is known as the "celery fields" parcel. The celery fields have been obtained by Sarasota County as a regional stormwater facility. At the time of RU-27's adoption, south of Fruitville Road on both sides of 1-75 were major employment centers with warehousing and industrial uses. At the time of RU-27's adoption, west of 1-75 and North of Richardson Road was a multi-family residential development under construction. At the time of RU-27's adoption, at the immediate northeast corner of 1-75 and Fruitville Road, was a MEC. It was established in 1993 in Amendment RU-15. The FLUM amendments changed the land use designation on the parcel to the immediate north of the previously existing MEC from semi-rural to MEC. Petitioners do not challenge this change. Parcel C is contiguous to the eastern boundary of the previously-existing MEC. A 24-inch force main water pipeline is scheduled to be constructed along Coburn Road, running along the western boundary of Parcel A, and a new water pumping station is planned for the northern corner of Parcel A. Potable water is available to Parcels A and C. A sanitary sewer (wastewater) pipeline is scheduled to be built by Sarasota County along the north, west and south boundaries of Parcel A. An analysis of the planning for the MEC and MEC/IROP land uses is set forth at pages 30-34 of RU-27. The Department's Compliance Review and Finding On or about December 8, 1995, Sarasota County transmitted a proposed amendment to the comprehensive plan including amendment to the FLUE and FLUM. Sarasota County requested that the Department apply the Objections, Recommendations and Comments review process. The Department reviewed the proposed amendment, and notified the County on or about March 1, 1996, that the Department had seven objections to the proposed amendment under Chapter 163 and Chapter 9J-5, Florida Administrative Code. None of the objections pertained to Parcels A or C directly. In addition, the Department objected based upon alleged inconsistencies with the Regional Policy Plan, Goal 7, Regional Issue F and Goal 9, Regional Issue E; and based upon inconsistency with the State Comprehensive Plan, Goal 7, Policies 24 and 25 and Goal 9 Policy 3. None of the state or regional agencies which commented on RU-27 to the Department at the transmittal or adoption stage registered any objections to RU-27. The Florida Department of Transportation reviewed the amendment and had no objections. The Southwest Florida Water Management District reviewed RU-27 and registered no objections. The District commented that the proposed amendment did not address the District's pending Southern Water Use Caution Area rule and its potential effects on land use and development within the County. The Southwest Florida Regional Planning Council reviewed the proposed RU-27 amendment and determined it to be consistent with the Regional Policy Plan. The Department of Environmental Protection offered no comments or objections to the amendment. On or about April 30, 1996, the County transmitted the adopted amendment (Ordinance RU-27) to the Department. RU-27 was a major revision of the FLUE. Sarasota County made changes in the transmitted version of RU-27 in the adoption stage, including changes to the FLUM. Among the changes to the transmitted amendment were: updated (to 1995) population estimates and projections; development capacity calculations; existing land use and cover maps, "minor corrections to the FLUM," updating of the FLUM "to show recent government acquisitions and changes to the FLUM that affected specific relatively small areas," and minor changes to several policies. The Department determined that the plan amendment adopted in Ordinance RU-27 was in compliance. The Department published notice of intent to find Ordinance RU-27 in compliance on June 26, 1995, in the Sarasota Herald-Tribune. Petitioners filed a timely Petition challenging the Department’s intent to find Ordinance RU-27 in compliance. In Paragraph 4.a. of the Petition, Non-Compliance with Section 163.3177, it is alleged that the subject portion of RU-27 violates Section 163.3171, Florida Statutes, because (1) it causes the FLUM not to be based on the projected population of Sarasota County; (2) it allows urban sprawl into new areas without correcting public facilities deficiencies; (3) it fails to recognize important environmental features (messic hammock, wetlands, pine flatwoods); and (4) it fails to account for I-75 as an evacuation route when it is projected to be severely over- stressed for evacuation purposes. The evidence fails to establish any requirement that the designation of each parcel be mathematically justified in the plan or the effect of the designations at issue on the demographic analyses supporting the plan. As part of the plan amendment process, Sarasota County analyzed the growth trends in the northern versus the southern half of the county, and found that the northern half of the county had limited residential capacity for the next ten years, with a projected buildout by 2006. The limited supply justified an additional amount of additional residential capacity. The evidence fails to establish the existence of any public facilities deficiencies that would be affected by the amendment. Native habitats receive protection from other provisions of the comprehensive plan during the development review process, even under the designations applied in RU-27. The evidence fails to establish that the amendment would have any adverse impact on I-75’s ability to carry traffic in an emergency. The subject area is not a hurricane evacuation zone, but is planned to serve as a safe area to absorb evacuees from other coastal regions of the county. Timing of RU-27 vs. the EAR Petitioners allege that the subject portion of the amendment violates Section 163.3191, Florida Statutes, because it was transmitted and adopted prior to the adoption of Sarasota County’s Evaluation and Appraisal Report (EAR). Sarasota County’s EAR was adopted on February 20, 1996. RU-27 was adopted on April 30, 1996. Sarasota County notified the Regional Planning Council that RU-27 was an EAR-based amendment, but did not specifically notify the Department. The Department, however, considered and reviewed RU-27 as an EAR-based amendment. Other local governments have failed to specifically designate EAR-based amendments in the past. On such occasions the Department has contacted the local governments to ascertain the status of such amendments during the Department’s review process. Alleged Inconsistency with State Comprehensive Plan Petitioners allege that the amendment "does not comply" with the following parts of the State Comprehensive Plan: 187.201(8), (10), (17), (18), (20), (23), (24), Florida Statutes. The evidence fails to establish any inconsistency with the State Comprehensive Plan. The Southwest Florida Regional Planning Council found the amendment to be consistent with the State Comprehensive Plan. Additionally, the more specific and credible expert opinion is that the designations of the parcels at issue are consistent with the State Comprehensive Plan. Data and Analysis Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(a) and 9J-5.006, Florida Administrative Code, in that it is not based on relevant and appropriate data and analysis. The evidence fails to establish the existing Future Land Use Element was not based on appropriate data and analysis, or that the entirety of RU-27 was not based on appropriate data and analysis. The evidence fails to establish that the data supporting the amendment were not collected and applied in professionally accepted manner. A consultant’s study prepared for the County in 1989 had estimated the unadjusted demand for new office park development in the I-75 corridor to consume approximately 640 acres by the year 2010. These data, prepared for an I-75 Corridor Plan, were incorporated into the 1989 update of the Comprehensive Plan. Based on this information, the County had designated 770 acres of MEC/IROP land to allow for environmental constraints. Although located at an I-75 interchange, Parcels A and C had not been designated for Urban uses in part because of drainage problems and the habitat located on parts of Parcel A. Because of recent drainage improvements in this area and more stringent environmental site planning requirements incorporated into the plan after 1989, this particular location has improved substantially as to its suitability for MEC/IROP development. By designating a portion of this site for MEC/IROP uses, RU-27 increased the supply of MEC/IROP land by approximately 60 to 70 acres. No other MEC/IROP lands were added by RU-27, resulting in a total available supply of approximately 840 to 850 acres. When compared with the 1989 consultant’s study, the total MEC/IROP acreage exceeds absolute demand by approximately 33 percent. The MDR contained within the subject parcels amounts to approximately 120 acres. At the maximum possible density of five units per acre, 600 residential units could be constructed on these parcels, or 540 units more than the maximum allowable under the previous Semi-Rural designation. The total urban residential capacity of the urban-designated area in RU-27 is 43,912 units, meaning that the new urban development permitted on these parcels constitutes a maximum or 1.23 percent of the total number of potential units. Based on the County’s existing land use controls and other constraints, the County projects that such lands will actually develop at even lower densities than the maximum allowed within the FLUM designations. The actual zoning density applied in Sarasota County is less than Future Land Use designation, except in the rural area. In the text of the RU-27 amendment, the County justified the need for the designation of the MDR at this particular location as being to “serve as a transition between lands designated as Major Employment Center and existing Semi- Rural Development.” Population Projections Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(e) and 9J-5.006(1)(g), Florida Administrative Code, in that it is not based on required population projections. RU-27 is based upon residential as well as seasonal population projections. The MDR areas designated on Parcels A and C by RU-27 were intended to provide a buffer between the newly-created MEC and MEC/IROP land uses on those parcels and existing residential development. Petitioners essentially challenge the changed land uses on Parcels A and C to new residential MDR capacity based upon the allegation that the expansion of the Urban Service Area to include the parcels is "over-allocated" because it exceeds the 133% market flexibility factor. The evidence, however, fails to show that the land uses designated for Parcels A and C is inconsistent with the projected population growth, particularly in light of the faster growth rate in the northern portion of Sarasota County. Planning Time Frames Petitioners allege that the amendment does not comply with Rule 9J-5.005(4), Florida Administrative Code, because the FLUE does not contain a five-year planning time frame. The challenged portions of the amendment (Parcels A and C) do not specifically relate to the planning time frame requirement, however, it is clear that the plan as amended contains at least two planning time frames, 1995-2005 time frame associated with the Urban Service Area and provision of capital improvements, and 1995-2010 for long-range capital improvements planning. Internal Consistency with Goals, Objectives, Policies Petitioners allege that the amendment does not comply with Rule 9J-5.005 (5), Florida Administrative Code, due to alleged internal inconsistency between the two FLUM changes and the following parts of the FLUE (as amended by RU-27). (1) Analysis. The Petition refers to portions of the Analysis section: "Development Capacity of the Urban Area"; "Coordination of Capital Improvements and band Uses"; "Planning for Residential Uses"; "Planning for Industrial Uses"; and "Summary." The evidence does not establish that the changed land uses on Parcels A and C are inconsistent with the totality of the data and analysis which the County considered. The County Commission designated Parcels A, B and C as a "study area", there was a pre-existing MEC on a contiguous parcel, and Parcel B was an urban enclave proximate to the Interstate. The map depicting the urban planning area did not include Parcels A and C; however, the map was intended to include the pre-RU-27 urban areas as a basis for beginning work on the amendment. The evidence does not establish an inconsistency between the Analysis Section and Parcels A and C. (2) Intent. The Petition did not identify any specific provision of the Intent section alleged to be insistent with the FLUM designation of the two parcels. The Intent Section does not set forth goals, objectives or policy as meant by Rule 9J- 5.005(5)(b), Florida Administrative Code. The evidence does not establish an inconsistency between the Intent Section and the designation of the two parcels at issue. (3) Policy 1.2.1. This policy requires that potential land use incompatibilities be mitigated through certain design techniques. This policy applies to the issuance of development orders and rezonings, not plan amendments. The evidence does not establish an internal inconsistency with Policy 1.2.1. (4) Policy 2.2.1. This policy requires that development orders be conditioned on adequate levels of service. A plan amendment, however, is not a development order. The evidence does not establish an internal inconsistency with Policy 2.2.1. (5) Policy 2.2.2. This policy requires that public expenditures for infrastructure and services be concentrated to serve areas within the Urban Services Area (USA) boundary. The parcels in question are within the USA boundary. The evidence does not establish an internal inconsistency with Policy 2.2.2. (6) Policy 2.3.1. This policy calls for a minimum dwelling unit potential within the USA boundary of 133% of the projected housing demand. Parcels A and C are within the USA, therefore no inconsistency exists. (7) Policy 2.3.2. This policy provides that the Future Urban areas will be considered for inclusion within the USA, based on the Evaluation and Appraisal Report (EAR). The evidence does not establish an internal inconsistency with Policy 2.3.2. (8) Policy 2.3.4. This policy explains that the FLUM “establishes a long-range maximum limit on the possible intensity of land use,” but not a minimum. The designation of Parcels A and C in this regard is consistent with Policy 2.3.4. (9) Goal 3. This goal calls for the orderly development of lands needed to accommodate the projected population growth. . . .” The designation of Parcels A and C reflects a balanced approach to population growth in the northern part of Sarasota County. The evidence does not establish an internal inconsistency with Goal 3. (10) Policy 3.1.1. This policy provides guidelines for the application of the residential density ranges provided in the comprehensive plan to subsequent development orders. The designation of Parcels A and C is not a development order. The evidence does not establish an internal inconsistency with Policy 3.1.1. (11) Policy 3.1.7. This policy requires the County to amend and adopt appropriate ordinances and plans to promote mixed use, pedestrian and bicycle friendly communities within two years. Within the context of RU-27, the designation of Parcels A and C provides a reasonable plan to promote the mixed use of this property and incorporate the area in an orderly manner. The evidence does not establish an internal inconsistency with Policy 3.1.7. (12) Objective 4.1. Objective 4.1 provides for the establishment and implementation of planning programs to address development and redevelopment opportunities. The evidence does not establish an internal inconsistency with Objective 4.1. (13) Policy 4.1.7. This policy calls for the development and preparation of a subsequent overall plan for the areas east of I-75 in Sarasota County. The policy does not prohibit or otherwise limit the uses previously designated or the uses set forth in RU-27. The evidence does not establish an internal inconsistency with Policy 4.1.7. (14) Appendix I. Appendix I contains the capacity methodology and the designation of the two parcels at issue. The Petition did not allege that the methodology contained in Appendix I failed to comply with Chapter 163 or Rule 9J-5, and there is no showing of an internal inconsistency. Concurrency Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.0055 and 9J- 5.006(2)(a), Florida Administrative Code, because all required public facilities will not be available concurrent to the development permitted by RU-27. There is no evidence of any inadequacy of the plan’s existing concurrency management systems or their consistency with state statute or rule. There are no existing public facilities deficiencies at Parcels A and C. The designation of Parcels A and C in the amendment would not exacerbate any existing public facilities deficiencies. While the designation of Parcels A and C would have some impact on roads, sanitary sewers, stormwater management, and other facilities and services, the evidence does not establish that required facilities will not be available concurrent to development. Urban Sprawl Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.006(3)(b)8 and 9J- 5.006(5), Florida Administrative Code, because it allows and encourages urban sprawl. There is no existing or historic problem of urban sprawl in Sarasota County. Sarasota County has historically provided only the capacity needed to support the population projections. RU-27 established the urban service area for Sarasota County. The change in land use for the subject properties in RU-27 did not cause urban sprawl. Sarasota County has for planning purposes a “tight” plan, in that it contains effective land use controls, works well within the planning timeframes, and contains a much lower allocation of new land for growth than other land use plans reviewed and approved by the Department. The approximate 200 acres of Parcels A and C do not constitute a “substantial area” of Sarasota County. Parcels A and C do not constitute a substantial area of the FLUM, which encompasses approximately 305,000 acres. As determined by the planning reviewers, the changes to the adopted FLUM pertain to relatively small areas. The changes to the FLUM for Parcels A and C substantially represent an “urban to urban” change. The rule indicators of urban sprawl are not implicated by the changed land use of Parcels A and C. Sarasota County’s plan has effective development controls in place to mitigate for or discourage urban sprawl. The new FLUM categories for Parcels A and C are not properly characterized as “low intensity” or “single-use development.” The new FLUM categories for Parcels A and C are not properly characterized as “in excess of demonstrated need.” The new land uses for Parcels A and C constitute "nodal development" which is not urban sprawl and not “radial strip development.” The new land uses for Parcels A and C do not constitute “leapfrog” development, but constituted “infill” of the existing and surrounding development to Parcels A and C. 102 The amended land uses for Parcels A and C do not reflect premature, poorly-planned development. Parcels A and C do not have adjacent active agricultural areas with which to conflict. Regional Policy Plan Petitioners claim that the amendment does not comply with the following parts of the Regional Policy Plan: Goal 1-9; Policy 10; Goal 11-25; and Policy 1e. The Department and Southwest Florida Regional Planning Council determined that the amendment is consistent with the Regional Policy Plan. There is no evidence of record regarding any inconsistency with the Southwest Florida Regional Policy Plan.
The Issue The issue is whether the City of Jacksonville's (City's) amendment to the Future Land Use Map (FLUM), also known as Ordinance No. 2007-355-E, and a related text amendment to Conservation/Coastal Management Element Policy 7.3.1 adopted by Ordinance No. 2008-315-E are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City (which also comprises Duval County) is a local government in northeast Florida whose eastern boundary adjoins the Atlantic Ocean. The City is partially bisected by the St. Johns River (River), which begins several hundred miles to the south, flows north through the lower half of the City, and then turns east, eventually emptying into the Atlantic Ocean. The Intracoastal Waterway is connected to the River and runs parallel to the coast. The City adopted the plan amendments which are being challenged by the Department and Intervenors. Intervenor Valerie Britt and the six resident intervenors own property and/or reside within the City. They each presented oral or written comments to the City regarding both amendments before transmittal but before their adoption. As such, they are affected persons and have standing to participate in this matter. Moody (formerly known as the Moody Land Company, Inc.) owns property and operates a business within the City. Moody submitted oral or written comments in support of both amendments to the City after transmittal but before adoption of the amendments. As such, it has standing as an affected person to participate. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the City. Coastal High-Hazard Area Because the CHHA is relevant to both the FLUM amendment and the text amendment challenges, a brief overview of its history and development is appropriate. For local governments abutting the Atlantic Ocean or Gulf of Mexico, or that include or are contiguous to waters of the state, Section 163.3178, Florida Statutes, enumerates certain requirements that must be included within the coastal management element of their comprehensive plans. See § 163.3178(2)(a)-(k), Fla. Stat. The purpose of this directive is that comprehensive plans should "protect human life and limit public expenditures in areas that are subject to destruction by natural disaster." § 163.3178(1), Fla. Stat. Because it lies adjacent to the Atlantic Ocean, the City is subject to these requirements. One of the requirements is the designation of a CHHA in the element. § 163.3178(2)(h), Fla. Stat. "[F]or uniformity and planning purposes," prior to 2006, the CHHA was simply defined as "category 1 evacuation zones." § 163.3178(2)(h), Fla. Stat. (2005). Presumably to eliminate inconsistencies in the application of this broad definition, in 2006 the Legislature redefined the term as ”the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model." § 163.3178(2)(h), Fla. Stat. (2006). The new law required that no later than July 1, 2008, local governments situated on or near Florida's coastline amend their "future land use map and coastal management element to include the new definition of [CHHA] and to depict the [CHHA] on the [FLUM]." § 163.3178(9)(c), Fla. Stat. Because Policy 7.3.1 of the Conservation/Coastal Management Element of the City's current Plan still utilizes the old definition of CHHA, Ordinance No. 2008-315-E was adopted for the purpose of complying with this requirement. The SLOSH model is a computerized model developed by the National Oceanic and Atmospheric Administration's National Weather Service to calculate hurricane storm surge heights. Storm surge is the abnormal rise of water caused by wind and the pressure forces of hurricanes. Based upon various inputs, such as the direction and speed of a hurricane, initial water elevation, topography, and bathymetry, the model produces a display with storm tide elevations per grid cell. The use of a grid cell enables the model to predict storm surge in a smaller land area. The outputs of the model are storm surge elevations averaged over grid cells, which are accurate to within twenty percent based upon post-storm observations from tide gauges behind coastal barrier islands. In July 1998, the Northeast Florida Regional Planning Council, now known as the Northeast Florida Regional Council, published a four-volume Storm Surge Atlas (Atlas) as a public safety planning tool to assist with hurricane evacuation planning within northeast Florida. (Each regional planning council in the State is tasked with this responsibility.) Volume 2 applies to Duval County. The Atlas reflects SLOSH model storm surge data on a map with land elevations and water features, thus providing emergency planners information they can use to evacuate coastal areas at appropriate times. Areas depicted in the Atlas below the elevation of the category 1 storm surge line are subject to evacuation and are considered to be in the CHHA. In preparing the Atlas, the Council used not only SLOSH model data, but other "suggested changes" (not otherwise disclosed) by emergency manager directors. Because of the time and effort involved in preparing the original Atlas, it has not been revised since its original publication in 1998. The topographical data input for the SLOSH model and the base map for Volume 2 of the Atlas was the 7.5-Minute Series Jacksonville Beach Quadrangle Map produced by the United States Geological Survey. These maps are used to establish the ground elevations for the grids but are limited in their ability to do fine resolution, that is, provide detailed information regarding the elevation for small areas of land within the grid. Although the Atlas indicates that it used the most current quadrangle map available, which was the 1994 version, the Council actually used the 1981 version. Except for some minor items, however, the record does not disclose any material differences between the two maps. Therefore, the use of the older version does not affect the validity of the information in the Atlas. The Atlas further indicates that the base contours taken from the Quadrangle Map were five-foot contours. However, both the 1981 and the 1994 versions of the Quadrangle Map only show a ten-foot contour line just to the south and southwest of the Moody property, and no five-foot contour lines. See Moody Exhibit BRJ-3. Thus, the map was "just saying that this property [the Moody property] is 10 feet or less." Time/History points are specific points within SLOSH grid cells that are selected by the Council for the purpose of giving detailed information at the point selected. Many of the points are on or near critical roadways. The Moody property is directly underneath Time/History Point 73. In terms of size, the Moody property is a very small percentage of the total grid cell in which that point is located. According to the Atlas, Point 73 is where Atlantic Boulevard crosses the Intracoastal Waterway. The Department, City, and Moody agree, and the Atlas indicates, that the maximum category 1 storm surge elevation at that point is five feet. Therefore, any land that is in the vicinity of Time/History Point 73 and is less than or equal to five feet in elevation will be inundated by the maximum category 1 hurricane storm surge. According to the legend on the Atlas, areas depicted in dark blue can anticipate inundation in a category 1 storm. The geographic area within Time/History Point 73 is shown on Plate 6 of Volume 2 of the Atlas and depicts the entire Moody property, as well the land in the vicinity of that point, in dark blue, thus implying that all or most of Moody's property is within the storm surge for a category 1 storm. However, it is noted that a significant portion of the Moody property is obscured by the Point 73 label on the Atlas' Plate 6. Even so, given the broad brush scope of that document and the solid dark blue color extending along the Intracoastal Waterway in that area, it is fair to infer that the land area under the label is also dark blue and subject to category 1 evacuation requirements. For land use planning throughout the State, the Department uses the CHHA that is established in the Atlas published by the local regional planning council. (In both the existing and amended versions of Policy 7.3.1, the City also uses the Atlas for purposes of delineating the CHHA.) Therefore, if the Atlas depicts a geographic area as being in the CHHA, the Department relies upon that information when it reviews plan amendments proposing to increase density within that area. In doing so, the Department acknowledges that the Atlas necessarily reflects the areas subject to storm surge on a "broad-brush regional approach," but points out that it would be impractical to attempt to carve out extremely small areas along the coast or waterways, parcel by parcel or acre by acre, which might have elevations above the storm surge line and not be subject to the development requirements within a CHHA. It also points out that if exceptions to the storm surge line in the Atlas are allowed, the CHHA requirements could be circumvented by a landowner simply placing fill on the property to raise the elevation. Finally, the SLOSH model is based on average elevations for an entire grid cell, and the model cannot produce a map with land elevations for specific parcels. The Department suggests, however, that generalized data is the best data available for conducting an analysis of storm surge. Because of the "broad-brush" and "averaging" constraints inherent in the Atlas and SLOSH, and the fact that the Atlas' delineation of the CHHA is used primarily for evacuation planning purposes rather than land use planning, the City and Moody contend that site-specific data is more desirable when determining land use entitlements. They suggest that professionally prepared surveys are far more accurate and precise in determining the elevation on a parcel than the Quadrangle Map, which in this case only depicted ten-foot contours. In this vein, the amended version of Policy 7.3.1 (which is the subject of Case No. 08-4193GM) allows a property owner to submit site-specific data (such as a survey) to demonstrate that the property, or part of it, is not below the category 1 storm surge elevation and is not within the CHHA. An increase of density (or development) within a CHHA is not barred by the statute. In fact, Section 163.3178(9)(a), Florida Statutes, provides that plan amendments proposing an increase in density within a CHHA may be found in compliance if the adopted level of service (LOS) for out-of-county hurricane evacuation is maintained for a category 5 storm event; or (b) a 12-hour evacuation time to shelter is maintained for a category 5 storm event and shelter reasonably expected to accommodate the residents of the contemplated development is available; or (c) appropriate mitigation is provided that will satisfy the provisions of items (a) and (b), including payment of money, contribution of land, and construction of hurricane shelters and transportation facilities. Therefore, even if the Moody parcel is found to be within a CHHA, it may still increase density within that parcel so long as the above criteria are met. By way of example, payments into a shelter mitigation fund would be one way to mitigate the effects of increasing residential density within the CHHA. FLUM Amendment The property In early 1995, Moody acquired the 77.22-acre tract of property which is the subject of the FLUM amendment, although it has been used as an industrial shipyard since 1951. The property lies on the north side of Atlantic Boulevard, a principal arterial roadway which generally extends from the coast (beginning just north of Neptune Beach) westward to the "downtown" area. The eastern boundary of the property adjoins the Intracoastal Waterway. Approximately 37 acres of the property, or a little less than one-half of the total acreage, consists of environmentally sensitive saltwater marshes. These are located on the west, north, and northeast sides of the property. Near the southwest corner of the property there is also a small wetland scrub vegetative community. The commercial activities on the current site consist of approximately 116,500 square feet of heavy industrial uses involved in the construction and repair of large ships. They are located on that part of the southern half of the property which sits closest to Atlantic Boulevard and the Intracoastal Waterway. The site also includes a small harbor for docking of ships. The area immediately surrounding the existing boat basin in the south-central part of the property has been environmentally disturbed as part of the ongoing shipyard operations. The development surrounding the Moody site is a mix of residential, commercial, and industrial uses. Single-family residences are the dominant use, occupying seventy-four percent of parcels within a one-half mile radius of the property. Britt and the resident intervenors all reside or own property in a residential development known as Pablo Point, which begins a hundred feet or so to the west of the Moody property, separated only by a marshland. Directly south of the Moody property, and on the south side of Atlantic Boulevard, is a new development known as HarborTown, which in 2002 was the subject of two land use changes, one from Agriculture IV to Conservation and one from Water-Dependent and Water Related (WD-WR) to Community/General Commercial (C/GC). A companion Planned Unit Development (PUD) provides for a mixed residential development with a maximum of 690 dwelling units, 28,000 square feet of office and commercial space, 150 wet slips, and conservation of approximately 29 acres of marshlands. According to the Atlas, it appears that at least part, if not all, of that development may be within the CHHA. The property is accessed by a service road at the Intracoastal Waterway, off Atlantic Boulevard. The eastbound exit ramp, which would be used by emergency rescue teams to access the site, exits to the right and goes under Atlantic Boulevard adjacent to the Intracoastal Waterway in order to reach the Moody site. Egress from the site westbound is by way of a service road on the north side of Atlantic Boulevard. The Moody property is in two flood zones: X5 and AE. Flood zone X5 generally corresponds with the upland areas at the center of the property that have been historically disturbed by shipyard operations and are not likely to flood. Floodzone AE generally corresponds with the environmentally sensitive wetland areas of the property and will likely flood in a 100-year storm. The Application and Review Process Sometime in 2006, Moody filed an application with the City to change the land use designation on its property from WD- WR and Agriculture IV to C/GC. The WD-WR classification allows for water dependent industrial uses such as shipyards, industrial docks, and port facilities. The Agriculture IV land use allows various agriculture uses and single-family residential development at the maximum density of 2.5 units per acre. The C/GC designation permits a wide range of uses, including multi-family residential and boat storage and sales, and is the same land use classification as the HarborTown project across Atlantic Boulevard and to the south. In contrast to the Agriculture IV land use, however, the C/GC land use allows residential development up to twenty units per gross acre. Thus, the map amendment will result in a potential net increase in development by 1,146 dwelling units and 200,245 square feet of nonresidential land use. After reviewing the application, the City approved the map change in December 2006 as a part of its semi-annual land use changes to its Plan. The amendment was then transmitted to the Department for its review. On March 5, 2007, the Department issued its Objections, Recommendations and Comments (ORC) Report, which noted six objections and one comment. Despite the objections contained in the ORC, on May 14, 2008, the City approved the map change by enacting Ordinance No. 2007-355-E. In conjunction with the land use change, the City also approved a PUD for the property (Ordinance No. 2007-356-E enacted the same date), which authorizes a maximum residential development of four residential buildings and 590 dwelling units on the property. This density would be achieved by the construction of four twelve-story buildings, each standing around 144 feet high. In addition, Moody intends to develop marina-related specialty retail (including a club, retail, and restaurant activities) not exceeding 6,500 square feet; a marina consisting of 650 slips, a minimum of which will be available to the public on a first come, first served basis; and a public boat ramp. However, the PUD conditions the residential approval through the restriction that no residential development shall be permitted on any portion of the property in the CHHA unless residential units are made available as a result of a program of mitigation for development in the CHHA, approved by the City and the Department under Section 163.3178(9)(a), Florida Statutes. This meant that the mitigation plan would take those impacts created by residential density in vulnerable areas and negate those impacts by minimizing the time it would take to evacuate and by providing adequate sheltering for those individuals if there was not adequate sheltering already available. On July 9, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance (Statement of Intent). (This action was directed not only to Ordinance No. 2007-355-E, but also to the other sixteen FLUM amendments, as well as certain other amendments not relevant here.) On August 1, 2008, the Department filed its Petition alleging that Ordinance No. 2007-355-E is not in compliance. The Department and Intervenors' Objections Moody (with the City's concurrence) has acknowledged on the record that the FLUM amendment is not in compliance. Although the Department has stated a number of reasons why the amendment is not in compliance, unfortunately, there is no record stipulation by the parties as to which specific deficiencies in the Statement of Intent, if any, the City and Moody still dispute. Further, in their Joint Proposed Recommended Order, the City and Moody contend that the Department and supporting Intervenors failed to sustain their objections in several respects. Because of this, a discussion of the Department and Intervenors' objections is appropriate. This Recommended Order will focus only on the objections to the amendment as adopted by the City, and not whether proposed mitigation measures will bring the amendment into compliance. The Department asserts that the FLUM amendment is not in compliance for four reasons. First, it alleges that the City has failed to direct population concentrations away from a known or predicted CHHA, maintain or reduce hurricane evacuation times, or present sufficient mitigation to offset these impacts. Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.; § 163.3178(9)(a), Fla. Stat. Second, it alleges that the amendment does not comply with the wetlands protection and conservation requirements of Florida Administrative Code Rule 9J-5.013(3), and it is internally inconsistent with Conservation/Coastal Management Element Goal 4 and Objective 4.1 of the Plan. Third, the Department alleges that the amendment will cause LOS standards on two segments of Atlantic Boulevard to fail, that the traffic analysis performed by Moody was flawed, and that the amendment did not include a financially feasible transportation improvement plan to mitigate traffic impacts. Fla. Admin. Code 9J-5.019(3)(a), (c), and (h). Finally, it contends that because of these deficiencies, the amendment is inconsistent with certain goals and policies of the State Comprehensive Plan (State Plan) and Northeast Florida Strategic Regional Policy Plan (Regional Plan). In resolving these contentions, it is noted that the Department's Petition adopts the allegations in the Statement of Intent, which alleges that the amendment is inconsistent with numerous provisions within Chapter 163, Florida Statutes, Florida Administrative Code Rule Chapter 9J-5, and the City, State, and Regional Plans. However, in its Proposed Recommended Order, the Department relies on only some, but not all, of these grounds for urging that the amendment be found not in compliance.3 The undersigned assumes that the Department has simply conformed its allegations to the proof adduced at hearing. (In any event, because the parties agree the amendment is not in compliance, this assumption does not affect the outcome of the case.) Britt and the resident intervenors are aligned with the Department and also contend that the amendment is inconsistent with Future Land Use Element Objective 1.1 and Policies 1.1.7, 1.1.10, and 1.1.14; Conservation/Coastal Management Element Goals 2, 3, 4, and 7, Objectives 4.1 and 7.4, and Policies 2.8.3, 7.1.6, 7.1.9, 7.3.12, 7.4.8, 7.4.12, and 11.1.1; and Transportation Element Objectives 1.1 and 1.2 and Policy 1.1.4. They further assert that archeological resources will be impacted. Development Within the CHHA The Department has alleged that the FLUM amendment constitutes a failure by the City to direct population concentrations away from a known or predicted CHHA, maintain or reduce hurricane evacuation times, or present sufficient mitigation to offset these impacts. These requirements are applicable when an increase in density is proposed for property within a CHHA. See Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.; § 163.3178(9)(a), Fla. Stat. As noted above, the parties sharply disagree on whether, for land use entitlement purposes, the entire site is within a CHHA. Although existing and amended Policy 7.3.1 rely upon the Atlas for delineating the areas of the City within the CHHA, the proposed amendment to Policy 7.3.1 also allows property owners to provide site-specific data indicating that the property is above the category 1 storm surge elevation and therefore is not subject to the development constraints associated with the CHHA. A professionally prepared survey confirms that about 23.88 acres of the Moody property, mostly located at the south- center of the site where existing commercial activities take place, are above five feet in elevation. (The elevation on the entire parcel ranges from two or three feet along the marsh of the lower lands to nearly twelve feet in the southwest corner of the property, or an average elevation of about seven feet.) Therefore, only the approximately 53.34 acres of the property below five feet in elevation can be expected to be inundated by the maximum category 1 storm surge; the other 23.88 acres will not be affected. The areas on the property which are above the five- foot contour line are connected to Atlantic Boulevard by a service road with an elevation of eleven or twelve feet down to eight feet at its lowest point. Thus, this part of the property is unlikely to ever become completely surrounded by water or inaccessible by emergency personnel or others by car in a category 1 storm event. Even those areas that are below five feet and subject to the storm surge will only reach and maintain an elevation of five feet of water for five or ten minutes before the water begins receding. The evidence shows that slightly less than twenty-four acres of the property are above the category 1 storm surge elevation of five feet, as established by the SLOSH. The evidence further shows that the Atlas is not the most accurate or precise in terms of land elevations because it only depicts ten-foot contours taken from the Quadrangle Map. Thus, it does not identify the elevation on any property less than ten feet. Because of this, on a site-specific scale, based on the Atlas, it cannot be said with certainty that a site or portions of a site are inside or outside of the CHHA. The more persuasive evidence supports a finding that, for land use entitlement purposes within the City, a professionally prepared survey constitutes the best available data regarding land elevations. Therefore, as long as Moody restricts its development to the twenty-four acres that have an elevation of five feet or higher, the mitigation requirements cited by the Department for development within a CHHA do not apply. Environmental Issues The Department asserts that the amendment fails to comply with the wetlands protection and conservation requirements of Florida Administrative Code Rule 9J-5.013(3)(a) and (b) and is internally inconsistent with Goal 4 and Objective 4.1 of the Conservation/Coastal Management Element of the Plan. The Department also cites to Section 163.3177(6)(d), Florida Statutes,4 which requires that the Plan protect wetlands and other natural resources. These requirements are relevant here since the site to be developed is bordered on the north and west by wetland areas and other environmentally sensitive lands that are characterized as primarily saltwater marshes. Florida Administrative Code Rule 9J-5.013(3)(a) and addresses policies regarding the protection and conservation of wetlands. It reads as follows: Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from the wetlands. The type, intensity or density, extent, distribution and location of allowable land uses and the types, values, functions, sizes, conditions and location of wetlands are land use factors which shall be considered when directing incompatible land uses away from wetlands. Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetlands functions. Goal 4 of the Conservation/Coastal Management Element provides that a City goal shall be "[t]o achieve no further net loss of the natural functions of the City's remaining wetlands, improve the quality of the City's wetlands resources over the long-term and improve the water quality and fish and wildlife values of wetlands." Objective 4.1 of the same Element implements Goal 4 and reads as follows: The City shall protect and conserve the natural functions of its existing wetlands, including estuarine marshes. In order to achieve this objective and its associated policies, the City shall continue to work with the applicable regional, state and federal agencies charged with these regulatory responsibilities. As the FLUM amendment now reads, development is limited only by the PUD. Although the PUD contains specific criteria that can be used to prevent adverse impacts to the wetland system, unless appropriate restrictions are incorporated into the Plan itself, the PUD can be amended at any time in the future to allow the property to be developed to its maximum potential. Because the data and analysis for impacts to wetlands are based on the PUD, and not the maximum development potential, the amendment is not supported by adequate data and analysis to ensure that there will be no net loss in existing wetlands, or that existing wetlands will be preserved and protected, as required by Goal 4 and Objective 4.1. Further, the amendment is not supported by adequate data and analysis to show that the City is protecting and preserving natural resources by directing incompatible uses away from the wetlands, as required by Florida Administrative Code Rule 9J-5.013(a) and (b). Therefore, the amendment is internally inconsistent with a goal and objective and is inconsistent with a Department rule. It is also inconsistent with Florida Administrative Code Rule 9J-5.005(5), which requires that there be internal consistency within a Plan. Finally, the amendment is inconsistent with Section 163.3177(6)(d), Florida Statutes, which requires that the Plan protect all natural resources, including wetlands. Transportation Impacts The Department contends that the amendment will cause the LOS on two roadway links to fail, that the traffic analysis submitted inappropriately assumed densities and intensities that were less than allowed by the amendment, and that the amendment did not include a financially feasible transportation improvement plan to mitigate traffic. Fla. Admin. Code R. 9J- 5.019(3)(a), (c), and (h). To address potential traffic impacts from the project, Moody's engineering consultant prepared a transportation analysis and hurricane evacuation study dated April 2007. This analysis was based on the amount of development approved under the PUD rezoning, and not the maximum development allowed under the Plan. The study showed that the amendment will cause the adopted LOS standards for two links on Atlantic Boulevard to fail. Those links include the segment from the Intracoastal Waterway to San Pablo Road and the segment from San Pablo Road to Girvin Road. The study does not show how the City will maintain its LOS standards on those links, assuming that the maximum development is allowed. In this respect, the amendment is inconsistent with Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). Also, the package did not include a financially feasible transportation improvement plan to mitigate the traffic impacts. Although one roadway improvement project is under construction and a second is included in the Capital Improvements Element, both of which should assist in alleviating the traffic impacts caused by the development, these mitigation measures assume that the project will be based upon the development restrictions contained in the PUD and not on the densities and intensities that are potentially allowed under the FLUM amendment. Therefore, in this respect, the amendment is inconsistent with Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). After this proceeding began, the City engaged the services of Prosser Hallock Planners and Engineers to perform a Transportation Analysis Update (Update). The results of that study are dated September 2008. See Moody Exhibit AFK-4. Like the original study, the Update was "based on the site plan [described in the PUD] and not on the maximum densities allowed in the land uses requested." Therefore, because the current FLUM amendment does not restrict development to the maximum densities allowed under the land uses requested, the study fails to properly assess the traffic impacts of the changes, as required by Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). To test transportation impacts from the project, both the original traffic analysis and the Update used a methodology taken from a September 2006 memorandum prepared by the DOT's District II office. See Moody Exhibit AFK-3. However, this methodology uses a "significant and adverse" test to determine road impacts for Development of Regional Impacts (DRIs) under Florida Administrative Code Rule Chapter 9J-2. In using the so- called DRI methodology, the City and Moody assumed that the Department had approved this methodology when it entered into settlement agreements with the applicants for the other sixteen FLUM amendments in Case No. 07-3539GM. However, this assumption was incorrect. While the DRI methodology is not specifically prohibited for use in a plan amendment review, a better methodology to assess traffic impacts for plan amendments is the LOS standard referred to in Florida Administrative Code Rule 9J- 5.019(3)(a) and (h). Therefore, the amendment is not consistent with this rule. Archaeological Resources The Division of Historical Resources of the Department of State has reviewed the amendment and expressed no concerns regarding potential impacts on historical or archaeological resources. The contention by Britt and the resident intervenors that such resources will be impacted has been rejected. Consistency with the State and Regional Plans The Department argues that when the State Plan is construed as a whole, the amendment is inconsistent with that Plan, in contravention of Section 187.101(3), Florida Statutes. It also contends that the amendment is inconsistent with certain policies within State Plan Goals (9)(a), (15)(a), (17)(a), and (19)(a),5 which are codified in Section 187.201, Florida Statutes. Those goals relate generally to natural systems and recreational lands, land use, public facilities, and transportation, respectively. Specifically, the Department contends the amendment is inconsistent with Policies (9)(b)1.,5., and 7., (15)(b)5. and 6., (17)(b)6., and (19)(b)15., which implement the Goals. The Department further contends that the FLUM amendment is inconsistent with Regional Goal 3.2 and Regional Policy 3.2.2. The Regional Goal requires that future development be directed away from areas most vulnerable to storm surge and flooding, while Regional Policy 3.2.2 provides that "[d]evelopment within hurricane evacuation areas should be responsible and permitted only when evacuation route capacity and shelter space capacity is available. Responsible development includes but is not limited to: structures elevated in storm surge and flooding areas, adequate drainage in flooding areas, and sufficient access for emergency response vehicles to all development." Because the FLUM amendment is now limited only by the PUD, and not by other development restrictions in the Plan, the amendment is inconsistent with the cited policies within the State Plan until appropriate remedial measures are adopted. For the same reason, the FLUM amendment is inconsistent with the Regional Goal and Policy. Other Objections Because the City and Moody concede that the amendment is not in compliance, it is unnecessary to address the remaining objections lodged by Britt and the resident intervenors. Ordinance No. 2008-315-E Prior to the adoption of Ordinance No. 2008-315-E, Policy 7.3.1 of the Conservation/Coastal Management Element read as follows: The City shall designate the Coastal High Hazard Areas (CHHA) as those areas designated as the evacuation zone for a category 1 hurricane as established by the 1998 Northeast Florida Hurricane Evacuation Study or the most current study. In order to comply with the mandate that before July 1, 2008, it amend the definition of a CHHA to be consistent with state law, the City originally proposed to amend its current policy by redefining the CHHA as follows: The Coastal High Hazard Area (CHHA) is the area below the elevation of the Category 1 storm surge line as defined by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model as established by the most current Northeast Florida Hurricane Evacuation Study. It is shown on Map C-18. In February 2008, the foregoing amendment, along with an amendment to another policy not relevant here, was transmitted to the Department for its preliminary review. On March 21, 2008, the Department issued an ORC in which it lodged only one technical objection to new Policy 7.3.1. -- that the amendment was inconsistent with Florida Administrative Code Rule 9J-5.005(2), which requires that when a local government adopts by reference a document that may be revised subsequent to plan adoption, the local government "will need to have [its] reference updated within the plan through the amendment process." For reasons not of record, this specific objection was not included in the Statement of Intent or in the parties' Joint Prehearing Stipulation. Even though the Department's Proposed Recommended Order now relies upon that objection, the issue has been waived. Heartland Environmental Council, Inc. v. Department of Community Affairs, et al., DOAH Case No. 94- 2095GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996)("[challenger] is bound by the allegations in its Petition for Hearing as to the alleged deficiencies in the Plan, as further limited by the Prehearing Stipulation filed in [the] case"). Notwithstanding the technical objection, an adoption hearing was scheduled on June 10, 2008, at which time the City proposed to amend Policy 7.3.1 by adopting the provision as submitted to the Department. During the meeting, but prior to a vote on the matter being taken, a Moody representative submitted for consideration revised language, which added the following sentence at the end of the Policy: "A property shall be deemed to be within the CHHA unless site specific, reliable data and analysis demonstrates otherwise." See City Exhibit 1. The City then adopted the proposed amendment, including the language suggested by Moody. On August 7, 2008, the Department issued a Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance (Statement of Intent). A Notice was also published on August 8, 2008. The Statement of Intent indicated that the text amendment is not in compliance because it is inconsistent with the statutory definition found in Section 163.3178(2)(h), Florida Statutes, and it creates an internal inconsistency with Conservation/Coastal Element Map C-18 attached to the text amendment. That Map defines and depicts the CHHA as the Category 1 surge zone based on the SLOSH model in the Atlas. The Statement of Intent further asserts that the foregoing deficiencies render the amendment inconsistent with State Plan Goals (7)(a), (8)(a), (15)(a), and (25)(a) and Policies (7)(b)23., (15)(b)6., and (25)(b)7. and Regional Goal 3.2. All of these objections are based upon the City's inclusion at the end of the amendment the words "unless site specific, reliable data and analysis demonstrates otherwise." Intervenor Britt has adopted the objections lodged by the Department. The statutory definition of CHHA does not reference an Atlas or a Hurricane Evacuation Study, but instead only references the SLOSH storm surge elevation for a category 1 storm event. Florida Administrative Code Rule 9J-5.005(2)(c) requires that "[d]ata are to be taken from professionally accepted existing sources, such as . . . regional planning councils . . . or existing technical studies." No matter which the City uses, "[t]he data used shall be the best available data, unless the local government desires original data or special studies." Id. In this case, the City has chosen to utilize the Atlas as the best available data regarding delineation of the CHHA unless rebutted by better data and analysis in the form of "site specific, reliable data and analysis." So long as the SLOSH storm surge elevation for a category 1 storm event is used, the greater weight of evidence supports a finding that use of either the Atlas or a land survey identifying the category 1 storm surge contour line on a given property is consistent with the statutory definition. Therefore, the Department's contention that the text amendment conflicts with the statutory definition has not been accepted. The Department also contends that the text amendment creates an internal inconsistency with Map C-18 of the Plan. However, the evidence shows that Map C-18 is used for illustrative purposes only and is intended to be a depiction of the information contained in the Atlas. For the reasons cited in the previous Finding of Fact, the Department and Intervenors have failed to show beyond fair debate that the use of site specific data is inconsistent with other provisions in the Plan. The Department further contends that if the amendment is approved, the requirements of the CHHA can be circumvented by a property owner simply filling his property above the elevation of a category 1 storm surge line. Provided all applicable permitting requirements have been met, however, there is nothing of record to indicate that this would be inappropriate or unlawful. There is insufficient evidence to support a finding that the text amendment is inconsistent with the State or Regional plans. The evidence shows that the City's determination that Policy 7.3.1 is in compliance is fairly debatable. Proposed Remedial Measures for Ordinance 2007-355-E The City and Moody have proposed the following remedial measures to bring the FLUM amendment into compliance, which would be incorporated into a new text amendment or by using an asterisk on the FLUM: Limit residential development to 590 dwellings; Limit marina-related specialty retail (including club, retail, and restaurant activities) to 6,500 square feet; Make available to the general public a minimum of 100 wet and dry slips; Make available to the 590 dwelling units a maximum of 550 wet and dry slips; Comply with the current Florida Clean Marina Program as designated by state law; Confine all residential and non- residential uses (other than boat channels, basins, docks, slips, and ramps) to the mean high water line; Confine all residential uses to areas above the elevation of the Category One storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, which on the Moody property is 5.0 feet (NGVD-29); Obtain, prior to final site plan approval, a final wetlands jurisdictional line from the appropriate regulatory agencies; and Provide a conservation easement (except for boat channels, basins, docks, slips, and ramps), which will provide the highest level of protection, to the appropriate state agency or agencies for all wetlands that it or they require to be preserved. The City and Moody have also agreed to "correct certain inaccurate traffic-roadway improvement descriptions contained in its Traffic Circulation and Mass Transit 5-Year Plan" by: Revising the Hodges Boulevard roadway project to describe the construction of a 4- lane urban section from Atlantic Boulevard to Beach Boulevard; and Revising the Atlantic Intracoastal West Area Intersection Improvements roadway project (Atlantic Boulevard at Girvin Road, Hodges Boulevard, and San Pablo Road) to describe additional through lanes (from 6 to 8 lanes) to Atlantic Boulevard between each of the three intersections. No findings are made as to whether the above-proposed remedial measures will bring the FLUM amendment into compliance. See endnote 2, infra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2007-355-E is not in compliance. It is further recommended that the final order make a determination that the plan amendment adopted by Ordinance No. 2008-315-E is in compliance. DONE AND ENTERED this 12th day of January, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2009.
The Issue Have the Intervenors timely challenged the Hamilton County adoption of its comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes? If allowed to pursue their challenge, what is their burden of proof? Is it pursuant to Section 163.3184(9), Florida Statutes, (1991), the "fairly debatable" standard? Is it pursuant to Section 163.3184(10), Florida Statutes, (1991) the "preponderance" standard? Did Hamilton County (the County) fail to adopt its comprehensive plan within sixty (60) days from the receipt of written comments from the Department of Community Affairs (DCA) as required by Section 163.3184(7), Florida Statutes (1991)? If it did, was that failure jurisdictional thereby voiding the adoption process? Within the adopted plan, is Policy V.2.13 requiring special permits for hazardous and bio-medical waste treatment facilities and for their placement in areas designated agricultural and located with the rural area of Hamilton County, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes, (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan set forth in Chapter 187, Florida Statutes (1991) and the North Central Florida Regional Policy Plan? Within the adopted plan is Policy 1.15.1 prohibiting the disposal of medical, bio-hazardous, hazardous or solid waste by incineration or by other methods which produce air pollution, other than by facilities permitted, legally sited and operated as of July 23, 1991, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and the North Central Regional Policy Plan? More particularly must these policies meet and do they meet the requirements for surveys, studies and data set forth in Section 163.3177(6)(a),(8) and (10)(e), Florida Statutes (1991) and Rule 9J-5.005(2), Florida Administrative Code?
Findings Of Fact In December, 1990, Hamilton County prepared a proposed comprehensive plan. That proposal was submitted to the Department in accordance with Section 163.3184(3)(a), Florida Statutes. Within the Conservation Element of the proposed plan the County included Policy V.2.13, which stated: The County shall only allow hazardous and bio-medical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located within an Environmentally Sensitive Area as designated within this Comprehensive Plan. Policy V.2.13 was associated with Objective V.2 which states: The County shall include within the land development regulations, by 1992, provisions for the conservation, appropriate use and protection of the quality and quantity of current and projected water sources, water recharge areas and potable water wells. There was no specific data and analysis in the proposed plan directed to Policy V.2.13. Other policies associated with Objective V.2 addressed water issues. In the data and analysis which the County submitted to DCA with its proposed comprehensive plan the County did identify known pollution problems. This included a reference to point discharges for wastewater, non-point sources of water pollution, point air pollution sources and non-point sources of air pollution. None of the known activities were associated with hazardous and bio- medical waste treatment facilities. The data and analysis associated with the Conversation Element in the proposed plan also identified watersheds, wetlands, lakes, flood prone areas, and current water sources. The data and analysis further discussed the circumstances related to watersheds, wetlands, rivers, lakes, flood prone areas and air quality as the County perceived the existing conditions for those topics. Finally, the data and analysis spoke to the issue of projected water needs. No mention was made concerning how the aforementioned data and analysis would be considered in granting special permits for hazardous and bio-medical waste treatment facilities. On April 14, 1991, DCA transmitted its comments to the County concerning the proposed comprehensive plan and supporting data and analysis, together with its objections and recommendations for modifications to the proposed comprehensive plan. This activity was in accordance with Section 163.3184(6), Florida Statutes. The report that was transmitted is known as the "ORC" Report. The County received the ORC Report on April 22, 1991. The ORC Report made a number of objections to the objectives and policies set forth in the Conservation Element to the proposed comprehensive plan and recommendations for modifications to the same. The ORC Report specifically objected to Policy V.2.13 wherein the DCA stated: Policy V.2.13 does not describe the 'special permits' concerning hazardous and bio-medical waste treatment facilities within agricultural areas, does not define the extent of the buffers, and does not prohibit these facilities in conser- vation areas. The general recommendation to improve Policy V.2.13, among policies found within the Conservation Element, was to this effect: Provide data and analysis to support the above- referenced policies. Revise the policies to identify the specific implementation programs or activities that will be undertaken by the County to achieve the goal and objectives with which the policies are associated. Eliminate or define all conditional and vague language. Revise the Future Land Use Map to support the revised policies. The County then held two public hearings related to the adoption of a comprehensive plan. See Section 163.3184(15), Florida Statutes (1991). The first public hearing was held on June 18, 1991. At that time no decision was reached to adopt a comprehensive plan. The public hearing was adjourned. On July 23, 1991, the County reconvened the public hearing related to the comprehensive plan adoption. Following the second public hearing associated with the plan adoption, the County in the person of its Board of County Commissioners who had conducted the public hearings, adopted a comprehensive plan for Hamilton County. The adopted comprehensive plan was transmitted to DCA on July 30, 1991. The transmittal letter supporting the adopted comprehensive plan noted that the comprehensive plan was adopted on July 23, 1991. The transmittal letter pointed out the changes to the adopted comprehensive plan which were not reviewed by DCA when DCA considered the proposed comprehensive plan. As with the proposed comprehensive plan, the County submitted data and analysis with the adopted comprehensive plan pointing out the data and analysis accompanying the adopted comprehensive plan which had not been reviewed by the DCA when it considered data and analysis supporting the proposed comprehensive plan. Within the conservation element to the adopted comprehensive plan Objective V.2 remained as set forth in the proposed comprehensive plan. Certain policies associated with Objective V.2 had changed. However, Objective V.2. and its associated policies set forth in the adopted comprehensive plan continued to address water issues. In particular, Policy V.2.13 did not change with the plan adoption. Additional data and analysis submitted by the County supporting the Conservation Element to the adopted comprehensive plan deleted the Suwannee River State Park as a conservation area. Specific references were made to Jumping Gully Creek, Swift Creek, Hunter Creek and the Withlacoochee River and activities associated with those water bodies. However, as with the proposed plan it was not explained how the County intended to use the original and additional data and analysis in deciding special permit issues for hazardous and bio-medical waste treatment facilities. When the County adopted its comprehensive plan it added an objective and a policy that had not been included with the proposed comprehensive plan in the category of objectives and policies for both urban development areas and rural areas in the Future Land Use Element. New Objective I.15 stated: Residential areas shall be protected from uses which cause or result in greater than average noise, hazards or odors. The associated Policy I.15.1 stated: No medical, bio-hazardous, hazardous, or solid waste shall be disposed of by incineration or by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July 23, 1991. The supporting data and analysis which the County provided the Department with the adopted comprehensive plan did not address Objective I.15 nor Policy I.15.1, with the exception that residential land use projections are described. The adopted plan provided specific information concerning future residential land use. That description was supported by a residential land use need methodology and analysis of future residential land use needed. As with the proposed plan, the adopted plan included a reference to industrial land use within the Future Land Use Element. In both the proposed plan and the adopted plan in Policy 1.3.1 it was stated: Lands classified as industrial consist of areas used for the manufacturing, assembly processing or storage of products. Industrial development may be approved in areas of the County not designated industrial on the Future Land Use Plan upon submission and approval of a development plan which shall include at the least: an industrial site plan; traffic plan; and traffic impact studies; provisions for the construction and maintenance of a wastewater treatment system meeting requirements of the State of Florida for that use; and a submission of a Future Land Use Plan Map amendment to Industrial classification. Industrial uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. The data and analysis associated with industrial land use which had been provided with the proposed comprehensive plan remained consistent with the adopted comprehensive plan when describing the methodology for identifying projected industrial land use. The comments in the data and analysis supporting the proposed and adopted plans indicated: Projecting the need for additional acreage for industrial use cannot be approached using a methodology similar to those used for residential and commercial Future Land Use needs. This is due to the fact that there is no direct relationship between population and industrial location. The additional future acreages for industrial location are anticipated to occur on a site specific basis as needed at the time industrial activities are proposed. Within the adopted comprehensive plan, Future Land Use Element related to urban development areas and rural areas is found the general industrial land use classification. The general industrial land use designations are located in the central area of the county to the southwest of the City of Jasper along County Road 249. There is an additional limited industrial land use classification within the urban development area and rural area category. It identifies industrial opportunities at interchanges on Interstate 75. At these interchanges, upon submission of a site plan that comports with development standards, with due regard for safety and adequate access, light industrial development is allowed which does not require an air emission permit from the State of Florida. Industrial land use designations as well as other land use designations were based upon an analysis of the amount and character of undeveloped land in the county, reliable population projections and growth patterns anticipated for the area, together with the availability of the public services to accommodate the projected population. The adopted comprehensive plan includes a Future Land Use Map and Map Series found within the Future Land Use Element of the adopted plan which depicts industrial land use. Intervenors' property carries a general industrial classification in the future land use designation in the adopted plan. Intervenors' property is not located on the Interstate 75 corridor and therefore would not be considered for this special industrial land use classification. The North Central Florida Regional Planning Council (the Council) assisted the County in preparing its proposed and adopted plans. The Council staff were engaged in that process as early as 1986. From that point forward the Council staff conducted field surveys relating to land use, compiled data from existing data sources and reviewed population projections and growth patterns in Hamilton County. The Council staff compiled information concerning public facilities, recreational and solid waste facilities, information relating to physical capacity for those facilities and information concerning the financing of capital projects. In anticipation of the requirements set forth in Section 163.3177(6)(a), Florida Statutes, the Council staff conducted field surveys of existing land use to determine the character of undeveloped land in the county. The staff reviewed the population projections of the University of Florida Bureau of Business and Economic Research. These activities were designed to assist the County in analyzing the amount of land necessary to accommodate projected growth and the availability of public services. The Council staff was responsible for preparing the proposed plan statement related to goals, objectives, and policies. The staff also prepared the Future Land Use Plan Map. The documents prepared by the Council staff were subject to review and workshops were held to consider those matters. Modifications were brought about through public comments presented at the workshops. The Council staff prepared an evaluation, appraisal and review report to examine the success of previously adopted comprehensive plans. Following the conduct of workshops the public sessions for plan adoption were held on June 18, and July 23, 1991. As representative for the County, the Council staff invited the Department to send representatives to attend the public hearing sessions. The Department was represented at those sessions. In the public hearings related to the plan adoption, there was considerable public testimony expressing concern about health and environmental impacts involved with the incineration of bio-medical waste. In particular, remarks were made about air emissions of mercury and dioxins and the disposal of ash residue from the incineration process. Documents were also presented by members of the public who opposed waste incineration. One document was from the United States Environmental Protection Agency, entitled Seminar-Medical and Institutional Waste Incineration: Regulations, Management, Technology, Emissions and Operations. Another document was entitled Hazardous Waste News #82, June 20, 1988, identified as a weekly news and resource for citizens fighting toxins. A third document was entitled "Facts" related to definitions within Section 403.703, Florida Statutes and observations from the author of this document concerning Intervenors intended operations of a bio-medical incineration facility in Hamilton County. Finally, there was a document from the Hamilton County School Board calling for a buffer zone between any school in the county and facilities which incinerated or otherwise disposed of substances through incineration or other disposal means which would create air emissions from the destruction of solid waste, hazardous substances, bio-hazardous waste and biological waste as defined within Section 403.703, Florida Statutes. The Hamilton County School Board also expressed a desire to completely prohibit the incineration or other disposal of those substances which were generated outside Hamilton County. The EPA document spoke in terms of the emissions from incinerators as being particulate and gaseous emissions. The particulate emissions being constituted of char and soot and minerals in the form of metals, silicates and salts. The gaseous emissions referred to in the EPA document were constituted of combustible emissions such as hydrocarbons, carbon monoxide, PCDD and PCDF and noncombustible emissions, such as nitrogen oxides, HCLs, hazardous compounds such as POHCs, products of incomplete combustion such as dioxins, and uncondensed volatile metals in excess air. Dr. Ralph Dougherty, an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration, provided expert testimony concerning the significance of some of the information provided to the County in its public sessions. This testimony was presented at the administrative hearing. Dr. Dougherty did not attend the public hearing associated with the plan adoption. Dr. Dougherty in addressing the waste stream that is created by bio- medical waste described how the incineration process in destroying polyvinyl chloride, PVC plastic, saran wrap and neoprene converted those materials to chlorinated organics such as dioxin. As Dr. Dougherty established, dioxins are very hazardous substances. Kenneth Krantz appeared for the Intervenors at the public sessions for the plan adoption. At that time Basic Energy Corporation was known as TSI Southeast, Inc. (TSI). He provided written information to the county commissioners concerning the TSI bio-medical waste disposal business intended to be located in Hamilton County. TSI took no issue with Objective I.15 which was adopted on July 23, 1991. Intervenors proposed different text for policy I.15.1 and requested adoption of two additional policies I.15.2 and I.15.3 which would place some restrictions on solid waste disposal but would allow an opportunity for operating the TSI facility in the county. Information provided by Krantz in the public sessions indicated that TSI intended to operate a business to incinerate solid, bio-medical and solid municipal waste, together with a waste recycling area, Pelletizer area and turbine-generator area. Krantz addressed the county commissioners concerning county building permit information about the facility, permitting by the St. Johns River Water Management District and the State of Florida, Department of Environmental Regulation. Information was provided concerning square footage for buildings within the overall TSI facility. Information was provided by TSI concerning the intended pollution control systems as being constituted of fabric filters and dry-lime injection systems, together with a detailed description of pending permit applications before the Department of Environmental Regulation for additional incineration units. Information provided by TSI addressed the expected constituents of the air emissions to include carbon monoxide, volatile organic compounds, nitrogen oxides, organics such as dioxide, sulphur dioxide, hydrogen chloride and particulate matter. A site location map and schematic showing the flow within the waste stream was also provided. TSI also provided information at the public sessions about the Intervenors anticipated emissions rates for two previously permitted units and the third and fourth units that were being considered by the Department of Environmental Regulation. This data about emission rates included a comprehensive listing of anticipated emissions by pollutant type to include projected measurements of omissions for units one and two which would deal with medical waste combustion and units three and four which would deal with medical waste combustion and possibly refuse-derived fuel (RDF). As commented on by members of the public who appeared at the public sessions for adopting the plan, information provided by the Intervenors verified that significant amounts of pollutants would be discharged into the air through Intervenors' operations. TSI provided information concerning the modeling that was done to measure concentration levels for the expected pollutants. Information was provided concerning the incineration process and the manner in which calculations were made concerning expected emissions levels. Information was provided concerning anticipated annual and short term emission rates for the four units intended to be operated by the TSI. The technical information about the intended TSI facility was through documents that appeared to be from an engineering consulting firm. All information provided in the public sessions that has been described was properly available to the county commissioners when adopting the plan. The information provided at the public sessions which has been described was not presented to the Department with the adopted plan. As stated, on July 30, 1991, the County submitted its plan to the Department to determine if the adopted plan was in compliance with the requirements of law. See Section 163.3184(8), Florida Statutes (1991). On September 12, 1991, DCA issued a notice of intent to find the adopted plan, not "in compliance". See Section 163.3184(10), Florida Statutes (1991). Pursuant to that provision, DCA filed a petition with the Division of Administrative Hearings setting forth the reasons for its decision to find the adopted plan not "in compliance". That petition was filed on September 23, 1991. The DCA took no issue with Policies I.15.1 and V.2.13. On February 20, 1992, Intervenors petitioned to intervene in the not "in compliance" case. As identified in the statement of issues, the Intervenors were and continue to be opposed to the adoption of Policies I.15.1 and V.2.13. On March 17, 1992, an order was entered which granted the Intervenors leave to intervene. Intervenors own property in Hamilton County. As contemplated by Section 163.3184(16), Florida Statutes (1993), DCA and the County engaged in settlement discussions. This culminated in a stipulated settlement agreement executed by DCA and County on November 24, 1993. The stipulated settlement agreement is referred to in the statute as a compliance agreement. Intervenors did not join in the settlement. On January 18, 1994, the County adopted the remedial amendments, referred to in the statute as plan amendments pursuant to a compliance agreement called for by the compliance agreement. The remedial plan amendments were submitted to the Department for consideration. On March 10, 1994, DCA issued a cumulative notice of intent addressing the compliance agreement amendments and the plan. DCA gave notice that it attended to find the plan and remedial comprehensive plan amendments/compliance agreement amendments "in compliance" with Sections 163.3184 and 163.3187, Florida Statutes. Notwithstanding that the Intervenors did not submit further pleadings within 21 days of the publication of the cumulative notice of intent, the Intervenors were allowed to proceed with their challenge to the plan that was not the subject of the compliance agreement leading to the compliance agreement amendments.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding the Hamilton County comprehensive plan to be "in compliance" with the exception that Policy V.2.13 is only "in compliance" in its latter sentence, the remaining language in Policy V.2.13 is not "in compliance". DONE and ENTERED this 21st day of April, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of April, 1995. APPENDIX "A" CASE NO. 91-6038GM The following discussion is given concerning the proposed fact finding by the parties: Intervenors' Facts: Paragraph 1 is subordinate to facts found. The first sentence to Paragraph 2 is contrary to facts found. The remaining sentence is subordinate to facts found. Paragraph 3 is rejected in its suggestion that there is a perpetual ban on bio-hazardous waste incineration. It is otherwise not necessary to the resolution of the dispute. Intervenors' Facts: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is not relevant. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception that the date of adoption was January 18, 1994. Paragraphs 15 through 22 are subordinate to facts found. Paragraph 23 is not relevant. Paragraph 24 is subordinate to facts found. Paragraph 25 constitutes legal argument. Paragraph 26 is subordinate to facts found. Paragraphs 27 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 are subordinate to facts found. Paragraphs 39 and 40 are not necessary to the resolution of the dispute. Paragraph 41 is rejected to the extent that it is suggested that it constitutes agency policy. Paragraphs 42 through the first phrase in 49 are subordinate to facts found. The latter phrase in Paragraph 49 is not necessary to the resolution of the dispute. Paragraphs 50 through 58 are subordinate to facts found. Paragraph 59 constitutes legal argument. Paragraphs 60 through 75 are subordinate to facts found. Paragraphs 76 through 82 are rejected as not constituting allowable analysis of data presented in support of the plan adoption. Paragraphs 83 and 84 are not necessary to the resolution of the dispute. Paragraph 85 is subordinate to facts found. Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 91 are rejected to the extent that it is suggested that some lesser standard is involved with consideration of data for optional plan elements as opposed to mandatory plan elements. See Section 163.3184(8), Florida Statutes (1991) and Section 120.57(1)(b)15, Florida Statutes (1993). Paragraph 92 is acknowledged but did not form the basis for fact finding in the recommended order. Paragraph 93 is rejected as intended to interpret Policy I.15.1 as an absolute prohibition against waste incineration in the County. Paragraph 94 constitutes legal argument. Paragraphs 95 through 102 are not relevant. Paragraphs 103 through 105 are not necessary to the resolution of the dispute. Paragraphs 106 through 108 are subordinate to facts found with the exception of the rejection of Policy V.2.13 in part. COPIES FURNISHED: David L. Jordan, Esquire Terrell L. Arline, Esquire Suzanne Schmith, Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 John H. McCormick, Esquire Post Office Box O Jasper, FL 32052 William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli and Stewart, P.A. 515 North Adams Street Tallahassee, FL 32301 Donald J. Schutz, Esquire Suite 415 535 Central Avenue St. Petersburg, FL 33701 Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue in this case is whether the land development regulations (LDRs) adopted by Respondent, City of Sunny Isles Beach (City), by Ordinance No. 2002-165 on December 10, 2002, as amended, are in compliance.
Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The City sits between the Intracoastal Waterway and the Atlantic Ocean in northern Dade County just south of the Town of Golden Beach (Town) and just north of the City of Bal Harbour. It was incorporated in 1997. As required by Section 163.3161, Florida Statutes, on October 5, 2000, the City adopted its first Comprehensive Plan. See Exhibit E. The Plan was amended by Ordinance No. 2002-147 on January 17, 2002. See Exhibit B. The Plan's Future Land Use Map contains a land use category known as Mixed Use-Resort/High Density (MU-R), which is "designed to encourage development and redevelopment within the area east of Collins Avenue for resort style developments catering to tourists and seasonal residents (hotel, hotel/ apartments, vacation resorts and resort style apartments) as well as high quality residential apartments." The category also allows associated retail uses such as restaurants and conference facilities that are internal and accessory to hotel/resort development. Pertinent to this dispute is Policy 15B of the Future Land Use Element (FLUE), which establishes density and intensity standards for the MU-R land use category. More specifically, the policy provides the following standards: This category allows an as-of-right density of a maximum one hundred (100) hotel- apartment units per acre and fifty (50) dwelling units per acre for apartments and a floor area ratio (FAR) intensity of 2.5. The allowable number of hotel rooms is controlled by floor area ratio. Additional residential density and FAR intensity may be permitted for developments that comply with bonus program requirements. Residential densities with bonuses may not exceed eighty (80) units per acre for solely apartments and one hundred twenty five (125) units per acre for hotel- apartments, exclusive of lockout units. (Emphasis added) Under the foregoing policy, a maximum density of 100 units per acre is allowed for hotel-apartment units, a maximum density of 50 units per acre is allowed for apartments, and a floor area ratio (FAR) intensity of 2.5 has been established. However, the underscored portion of the policy authorizes a bonus density and intensity program which allows a developer to exceed the prescribed density and intensity standards for developments "that comply with bonus program requirements." If the bonus density program requirements are satisfied, the policy establishes a cap for the density bonus at 125 hotel-apartment units per acre and 80 residential units per acre. While the policy does not establish a similar cap for the intensity bonus, it essentially defers the amount of the intensity cap and the details of the bonus program to the LDRs, which are to be adopted at a later time. Objective 8 of the Plan provides that the City "shall adopt, maintain, update and enhance development regulations and procedures to ensure that future land use and development in the City of Sunny Isles Beach is consistent with the Comprehensive Plan." Objective 15 of the Plan provides that the "land use densities, intensities and approaches [contained in Policy 15B] shall be incorporated in the Land Development Regulations." Finally, Section 163.3202(1), Florida Statutes, requires that local governments, within one year after submission of their comprehensive plans, "adopt or amend and enforce land development regulations that are consistent with and implement their comprehensive plan." On December 10, 2002, the City approved Ordinance No. 2002-165, which adopted a comprehensive set of LDRs to implement the Plan. See Exhibit C. In 2003, the LDRs were further amended in minor respects by Ordinance Nos. 2003-167, 2003-171, 2003-173, and 2003-178. See Exhibit D. In sum, the LDRs consist of more than one hundred pages of regulations, and except for one of these, Section 703.8.4(i)3, none of the other LDRs directly relates to this dispute. Section 703.8.4(i)3 implements Policy 15B by outlining the criteria and requirements necessary to qualify for additional intensity or FAR through the bonus program. It also establishes a cap on FAR intensity. If the bonus program requirements are satisfied,3 the regulation allows a maximum intensity bonus of 1.5 FAR, or a potential total FAR of 4.0, which exceeds the 2.5 FAR contained in Policy 15B. (Intensity bonuses to increase the FAR can also be obtained through the transfer of development rights under Section 515 of the LDRs. However, those bonuses are not in issue here.) Petitioners include a group of twelve City residents; the Town, which lies adjacent to, and just north of, the City; and two Town residents. There is no dispute that Petitioners will be substantially affected by the LDRs and thus they have standing to bring this challenge. In their Cross-Motion, which essentially tracks the allegations in their Amended Request for Hearing, Petitioners assert that they, and not the City, are entitled to a summary final order in their favor for three reasons. First, they argue that it is beyond fair debate that all of the LDRs, including Section 703.8.4(i)3, are inconsistent with Policies 4A and 4C of the Intergovernmental Coordination Element of the Plan because the City failed to solicit comments from the Town prior to the adoption of the LDRs. Second, they argue that it is beyond fair debate that the City violated Florida Administrative Code Rule 9J-5.005(2)(g) when it adopted Section 703.8.4(i)3. Finally, they contend that it is beyond fair debate that in order to achieve consistency with the Plan, the LDR must not establish a FAR that is beyond the intensity standard (2.5) established in the Plan. Policies 4A and 4C of the Intergovernmental Coordination Element provide as follows: 4A. The City will notify and solicit comments from adjacent jurisdictions and the School Board of any requests for land use amendments, variances, conditional uses or site plan approvals which impact property within 500 feet of a public school or within 500 feet of the boundaries of an adjacent jurisdiction. 4C. The City will notify and solicit comments from adjacent jurisdictions and the School Board of its existing standards or proposed regulations being considered for problematic or incompatible land uses. Nothing in the two policies requires that the City solicit comments from adjacent jurisdictions when adopting the LDRs being challenged here. Rather, these policies specifically address notice and comments as to "land use" changes, not the adoption of LDRs, or to "regulations being considered for problematic or incompatible land uses." Even assuming arguendo that the two policies require some type of prior notice, Petitioners do not dispute the fact (as set forth in the Department's Determination) that prior to the adoption of the LDRs, "the City notified the Town both in writing and orally". (Determination, Finding of Fact 6). Florida Administrative Code Rule 9J-5.005(2) contains general data and analyses requirements for comprehensive plans. Paragraph (2)(g), which Petitioners assert was violated by the City when it adopted Section 703.8.4(i)3, provides as follows: (g) A local government may include, as part of its adopted plan, documents adopted by reference but not incorporated verbatim into the plan. The adoption by reference must identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted. The adoption by reference may not include future amendments to the document because this would violate the statutory procedure for plan amendments and frustrate public participation on those amendments. A local government may include a provision in its plan stating that all documents adopted by reference are as they existed on a date certain. Documents adopted by reference that are revised subsequent to plan adoption will need to have their reference updated within the plan through the amendment process. Unless documents adopted by reference comply with paragraph 9J-5.005(2)(g), F.A.C., or are in the F.S., the F.A.C., or the Code of Federal Regulations, copies or summaries of the documents shall be submitted as support documents for the adopted portions of the plan amendment. This rule sets forth the manner in which local governments may adopt and incorporate by reference documents into their comprehensive plans. If they choose to do so, they must identify the title and author of the document being incorporated by reference, the edition of the document, and the specific portion of the document relied upon. Whenever an amendment or change to the incorporated document occurs at a future time, the local government must readopt those changes in order for them to be valid and effective. On its face, the rule applies exclusively to the use of incorporated documents in comprehensive plans, or plan amendments, and has no application to LDRs. In the case of Town of Golden Beach et al. v. City of Sunny Isles Beach et al., No. 03-472AP (Fla. 11th Cir.Ct., Appellate Division, June 15, 2004), a copy of which has been submitted as Exhibit G, Petitioners unsuccessfully sought by petitions for writ of certiorari to quash a City Resolution which granted Intervenor's application to construct a condominium at 19505 Collins Avenue, Sunny Isles Beach. The application sought approval of a site plan for the condominium and approval of the use of the property as a receiver site for the transfer of 38,847 square feet of transfer development rights in accordance with the City's LDRs. In that proceeding, Petitioners contended that they were denied due process because the City failed to provide proper notice to neighboring property owners under Section 515.7 of the LDRs; and that the City violated the essential requirements of the law by improperly transferring development rights and additional floor area ratio through bonuses to the developer, in excess of the 2.5 FAR expressly permitted by the City's Plan and LDRs. The court ruled in favor of the City on both issues. The parties agree, however, that a motion for rehearing of that decision has been filed by Petitioners, and the decision is not yet final. Further, the decision does not clearly indicate whether the same consistency arguments raised here were adjudicated in that matter. The notice issue is not the same.
The Issue The issue in this case is whether the Comprehensive Plan adopted by Jefferson County is not "in compliance" as such is defined at Section 163.3184(1)(b), Florida Statutes, as alleged in the Petition for Administrative Hearing to Review the Comprehensive Plan Adopted by Jefferson County, filed by the Petitioners in this case.
Findings Of Fact Robert B. Rackleff and Jo Ellyn Rackleff own property in Jefferson County. The Rackleff's represent the "Friends of Lloyd, Inc.", an organization opposed to a proposed siting of petroleum product terminal facilities near Lloyd, a town within Jefferson County. The Department of Community Affairs (DCA) is the state land planning agency and administers the requirements of the "Local Government Comprehensive Planning and Land Development Regulation Act", Chapter 163, Part II, Florida Statutes. On or about July 19, 1991, The Board of County Commissioners of Jefferson County adopted a comprehensive plan (plan). The plan was reviewed by the DCA and determined to be "in compliance". 2/ Jefferson County, population 12,243, is located in the northern part of Florida, bordered by the Aucilla River and Madison and Taylor Counties to the east, the Gulf of Mexico to the south, Leon and Wakulla Counties to the west, and the State of Georgia to the north. Jefferson County contains a land area of approximately 392,192 acres. The bulk of the county's residents live in or near Monticello (the county seat), Lloyd, Wacissa, Lamont, Drifton, Capps, Aucilla, Waukeenah, Dills, Thomas City, and Nash. Major transportation routes through Jefferson County include Interstate 10 running east-west through the county just south of Monticello, U.S. Highway 90 lying north of and parallel to I-10 and running through the center of Monticello, U.S. Highway 27 lying south of I-10 and running east-west through the county, and U.S. Highway 98 lying south of U.S. 27 and also running east- west. U.S. Highway 19 enters north Jefferson County at the Georgia border and runs south until it merges with U.S. 27. State Roads 257 and 59 also run north- south. Both State Roads 257 and 59 intersect with I-10, as does U.S. Highway 90. The plan designates land parcels surrounding the I-10/U.S. 90 and I- 10/S.R. 59 interchanges and land parcels on the north side of the I-10/S.R. 257 interchange as "Mixed Use Interchange Business". Future Land Use Element Objective 1, Policy 1-3, of the plan defines the "Mixed Use Interchange Business" designation as follows: A mixed use category located at an interchange with I-10, with a variety of primarily commercial businesses. Because there are but three such interchanges in Jefferson County, the amount of land is necessarily limited; uses in the category are, therefore, limited to those activities requiring locations with high vehicular traffic and easy access to I-10. Appropriate uses include (1) tourist oriented facilities, such as restaurants, automotive service stations, truck stops, motels, campgrounds, and the like; (2) region serving retail complexes or office centers; (3) commerce parks; (4) facilities for the storage and distribution of foods and products including wholesale activity; (5) light manufacture of goods for distribution to other locations; and (6) truck stops. Intensity of use, as measured by impervious land coverage shall not exceed 80%. More intense truck transport and highway oriented activities, and regional distribution centers may also be allowable, subject to special exception approval by the Board of County Commissioners in order to ensure the closest possible scrutiny of such uses. Activities subject to such special exception approval include: uses exceeding 50,000 square feet impervious land coverage; uses with a total land area of five or more acres; uses which have storage capacity for more than 500,000 gallons of petroleum product; or uses on environmentally sensitive lands as defined in the Conservation Element. Performance standards shall be included in the land development regulations for special exceptions to insure that on-site and off-site impacts are adequately planned for and monitored. Impacts include trip generation, transportation access, drainage, water quality, visual appearance, avoidance of environmentally sensitive lands and mitigation of impacts, noise, signage, and air quality. Information to support the application shall be provided by the applicant at the applicant's expense. Activities subject to special exception in this district shall only be required to obtain special exception approval for plan land use changes, and shall not be required at the time of application or receipt of a building permit. (emphasis supplied) Local governments are required to adopt and enforce, within one year following submission of the comprehensive plan for review by the state land planning agency, land development regulations (LDR's) which are consistent with and implement the adopted comprehensive plan. Section 163.3202(1), Florida Statutes. According to the data in the plan, the interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. The county's groundwater system includes the upper and lower Floridan Aquifer. Support documents to the Jefferson County plan note that aquifer recharge occurs through sinkholes near Lake Miccosukee, along the Aucilla River, and through the northeast area of the county. Water contamination can occur through drainage from septic tanks, leaking underground storage tanks, hazardous waste, and contaminated stormwater runoff. The Petitioners generally assert that the plan is not in compliance because the possible siting of a petroleum product facility over the potential area of high groundwater recharge fails to adequately protect water quality and the Floridan Aquifer. Under the "mixed use interchange business" designation, land uses permitted through a special exception process receive specific scrutiny by the Jefferson County Board of County Commissioners. Uses including storage capacity for more than 500,000 gallons of petroleum product or which lie on environmentally sensitive lands as defined in the Conservation Element are required to undergo the "special exception" process. Special exception uses are governed by the performance standards which will be included in the county's land development regulations. Such regulations must insure that on-site and off-site impacts, including water quality, avoidance of environmentally sensitive lands and mitigation of impacts, trip generation, transportation access, drainage, visual appearance, noise, signage, and air quality are adequately planned for and monitored. Section 163.3177, Florida Statutes, identifies the elements of a local government comprehensive plan. Some elements identified in this section may be included in the plan at the local government's option; others are required. 3/ FUTURE LAND USE ELEMENT Section 163.3177(6)(a), Florida Statutes, requires the inclusion of a Future Land Use Element, which "may designate areas for future planned development use involving combinations of types of uses for which special regulations may be necessary to ensure development in accord with the principles and standards of the comprehensive plan and this act". Rule 9J-5.006(3)(c)(6), Florida Administrative Code, states that a Future Land Use Element must contain one or more policies addressing the implementation of protection of potable water wellfields and environmentally sensitive land. The Jefferson County Comprehensive Plan Future Land Use Element includes the information required by the statute and rules. Jefferson County's Future Land Use Element Policy 1-5 states: Existing, revised, and/or new land development regulations shall ensure protection of environmentally sensitive lands. Such lands include areas designed 4/ as Conservation on the Future Land Use Map, and may include other isolated areas identified on a site-by-site basis shall be included in the land development regulations. All development is subject to site plan review which is the primary means of ensuring protection. Also refer to specific objectives and policies of the Conservation Element. Future Land Use Element Policy 1-6 provides: The LDR's 5/ shall require protection of all future potable water well fields developed in the County with a design capacity of 100,000 gallons per day or greater through development of locational criteria including a minimum 200 ft. prohibited development zone around the well's perimeter and consideration of distance from hazardous waste storage or generation (including petroleum storage tanks). (This is the same as the G-1 rule from DER.) Future Land Use Element Objective 3 provides: Throughout the planning period, the County shall require that the natural and historic resources of the County be protected from the negative impacts of development activities, and shall require that future land uses are coordinated with the appropriate topography and soil conditions. This objective shall be accomplished using Policies 3-1 through 3-3 Future Land Use Element Policy 3-1 provides: Encourage development and allow growth only in areas without steep slopes. Future Land Use Element Policy 3-2 provides: Drainage improvement plans will be submitted as part of the site plan and/or subdivision review process. Standards will be included in the land development regulations for drainage improvements during development. Future Land Use Element Policy 3-3 provides: Existing regulations in the Jefferson County Development Code shall be continued; the regulations are designed to ensure protection from flood damage, protection of the aquifer, protection of lands adjacent to lakes, streams, and within wetlands. Regulations will be revised for consistency with the objectives and policies of the Jefferson County Comprehensive Plan. CONSERVATION ELEMENT Section 163.3177(6)(d), Florida Statutes, requires the plan to include a Conservation Element for the conservation, use, and protection of natural resources in the area, including water, water recharge areas, and waterwells. Rule 9J-5.013(2)(c)(1), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells. Rule 9J- 5.013(2)(c)(6), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats. Rule 9J-5.013(2)(c)(9), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the designation of environmentally sensitive lands for protection based upon locally determined criteria which further the goals and objectives of the Conservation Element. Rule 9J-5.013(2)(c)(10), Florida Administrative Code, states that a Conservation Element shall contain policies addressing the implementation activities for the management of hazardous wastes to protect natural resources. The Jefferson County Comprehensive Plan Conservation Element includes the information required by the statute and rules. Conservation Element Objective 2 provides: In order to protect water quality, the County shall protect all its surface waters and ground waters from the intrusion of pollutants throughout the planning period This shall be accomplished through: continued implementation and enforcement of the Jefferson County Land Development Code, which requires a site plan review process for all development; correction of drainage deficiencies by 1992, and by the creation of a stormwater drainage plan for Lake Miccosukee and the Aucilla River (north of US27/19) as soon as funding is available. Upon completion of the drainage plan, the County will amend the comprehensive plan for consistency with the recommendations of the drainage plan. Conservation Element Policy 2-1 provides: Throughout the planning period, the County shall require that all new development provide stormwater management systems designed so that post development rates of runoff do not exceed pre-development rates, and to provide treatment of stormwater prior to surface water discharge, consistent with Chapter 17-25, F.A.C. This shall be accomplished using the site plan review process, mandatory for all development, adopted as part of the land development regulations by the statutory deadline. Conservation Element Policy 2-2 provides: The County shall coordinate with the Department of Environmental Regulation, Bureau of Waste Management to ensure that the existing underground leaking tanks are remediated by the owner expediently, and in a manner which does not further threaten ground water quality. Conservation Element Policy 2-3 provides: The County shall adopt a wellfield protection ordinance (for protection of cones of influence and waterwells) by the statutory deadline, a hazardous waste management ordinance by 1991, and a shoreline/waterfront protection ordinance by 1992 to ensure protection of ground and surface water. Conservation Element Policy 2-4 requires the county to consult with the DER and the water management districts to ensure that water withdrawal within two named sites will not increase groundwater contamination from said sites. Conservation Element Policy 2-7 provides: The County shall coordinate with the Suwanee river and Northwest Florida Water Management Districts in the protection of prime recharge areas, once such areas have been designated by the Districts. Conservation Element Policy 2-8 provides: The land development regulations shall limit impervious surfaces, and require onsite retention of stormwater runoff in the County's high recharge areas. Conservation Element Objective 3 provides: Throughout the planning period, the County shall protect all areas that fall within the 100-year floodplain. The County shall use the Flood Insurance Rate map and the site plan review process for all development, as the tools for implementation. Conservation Element Policy 3-1 provides: The County shall continue to enforce the existing floodplain ordinance restricting development if (sic) floodprone areas. The ordinance shall continue to prohibit the following within the 100 year floodplain: fill; structures (other than on stilts); common water supplies or sewage treatment facilities; and roads, except as infrequent intervals as necessary to provide access to private or public property. Permitted uses in the 100 year floodplain shall include agriculture; silviculture; residential structures, only where fill is not required and the first floor elevation is at least one foot above the 100 year flood, and, only at very low densities; recreation (such as hiking trails); native vegetation and wildlife habitat. The ordinance shall continue to protect the functions of floodprone areas through its requirement that flood areas are to be treated as positive visual open space, wildlife habitat, and as water recharge and discharge resources. Conservation Element Policy 3-2 provides: The floodplain ordinance shall protect the water quality and wildlife habitat values of shorelines and riverine floodplains by establishment of a contiguous vegetative buffer along the Wacissa and Aucilla Rivers, of at least 50 foot in width, measured from the wetlands jurisdictional line, within which permanent structures will be prohibited, and clearing of native vegetation (other than areas designated for silvicultural use) shall be limited to only to (sic) provide reasonable access to the shoreline. Shoreline buffers shall be established for Lake Miccosukee. Conservation Element Objective 4 provides: Throughout the planning period, the County shall conserve the water supply and protect the quantity and quality of current water source and any new water sources. This objective shall be accomplished using Policies 4-1 through 4-4. Conservation Element Policy 4-1 provides: The County shall enforce water conservation during times of drought by enacting an ordinance which prohibits irrigation between 10:00 AM to 6:00 PM, and shall keep the public informed of these restrictions through newspaper notices and posted notices. Conservation Element Policy 4-2 provides: The County shall continue to adhere to any emergency water conservation measures imposed by the Northwest Florida and Suwanee River Water Management Districts. Conservation Element Policy 4-3 provides that all new construction and all remodeling activities utilize fixtures conforming to a specified schedule of maximum water usage. Conservation Element Policy 4-4 provides: The County shall enact policies that allow septic tanks only in areas where public sewer is unavailable and only upon issuance of a Jefferson County Health Department permit. Conservation Element Policy 4-5 provides that the county will promote and encourage agricultural land owners to incorporate specified water conserving farming methods. Conservation Element Policy 4-6 provides: Future water demand for nonpotable water uses should be met through the use of water of the lowest acceptable quality for the purpose intended. To this end, the County may require that developers requiring large amounts of water for use other than drinking water utilize reclaimed water from stormwater systems and treated wastewater. Conservation Element Policy 5-1 provides: By the statutory deadline for adoption of land development regulations, the County shall adopt regulations for the preservation and conservation of those areas which are known habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. By 1995, the County shall develop and complete a program to identify, protect and enhance those specific areas which contain unique vegetative communities, springs, caves, sinkholes, ravines, or are suitable for, habitats for threatened and endangered species, and species of special concern, and those areas characterized by wetlands. Conservation Element Policy 5-7 provides: In order to carry out Policy 5-1, the County shall: establish a citizens or other committee to initiate the vegetation and wildlife habitat identification program, based upon the initial data provided by the Comprehensive Plan, and coordination with US Fish and Wildlife and the Florida Game and Freshwater Fish Commission. use innovative techniques in the land development regulations for preservation of such areas, such as: designation and regulations of conservation areas; site plan review; on-site density transfers to allow clustering of allowable units to protect environmentally sensitive portions of a site; and, overlay zoning whereby density calculations and developable land expectations area (sic) based on net developable acreage after excluding the environmentally sensitive portions. Conservation Element Policy 5-8 provides: The County shall promote the designation and protection of natural reservations designated within the County, through cooperation with the federal government regarding St. Mark's National Wildlife Refuge and the Aucilla Wildlife Management Area, the State's CARL program, the Water Management District's Save Our Rivers and SWIM Program, and designation of such areas on the Future Land Use Map as conservation. Conservation Element Policy 5-10 provides: Natural resources, such as wetlands, water bodies, springs, sinkholes, caves, and habitat of endangered, threatened and species of special concern are valuable resources which need protection, and are therefore designated as environmentally sensitive lands. These lands which are threatened by urban development, as well as any lands identified during the County's vegetation and wildlife habitat program to be of critical habitat for designated species, shall be protected from encroachment through the land development regulations, adopted by the statutory deadline. The Regulations shall establish performanc standards for development in such environmen- tally sensitive areas. Any environmentally sensitive lands designated for Silviculture shall be required to us (sic) the US Forest Service Best Management Practices, and are subject to the requirements of Policy 5-11. Policy 5-11 prohibits development of land designated as "Agriculture I" on the Future Land Use Map. To develop such land requires amendment of the comprehensive plan, preceded by an inventory of all wetlands and other environmentally sensitive lands as well as documentation that the proposed use will not negatively impact the environmentally sensitive lands. Conservation Element Policy 5-6 provides conservation-related criteria for permitting commercial mining activities in the county, however, there are currently no commercial mining activities in Jefferson County. Conservation Element Policy 5-13 requires that the county continue its efforts in reducing erosion in coordination with the Soil Conservation Service, and continue to notify farmers of the opportunities available towards reducing erosion. Conservation Element Policy 5-14 requires that silvicultural lands be managed to reduce erosion. Conservation Element Policy 5-15 requires that best management practices be utilized for soil conservation. Conservation Element Objective 6 provides: Throughout the planning period, the County shall prohibit the disposal of hazardous wastes into the public sewer system, canals and ditches, wetlands, stormwater facilities, unlined landfills and other unsafe areas. The hazardous wastes which are prohibited will be listed in the County's revised land development regulations. The County shall ensure that all hazardous waste is properly handled, generated or stored during the site plan review process, required for all development. Conservation Element Policy 6-1 provides: Through intergovernmental coordination and public education programs, beginning within six months after plan adoption, the County shall encourage that residents participate with the City of Monticello in promoting and participating in hazardous waste amnesty days. Conservation Element Policy 6-2 provides: In order to protect natural resources and public sewer systems, the County shall prohibit the unsafe disposal of hazardous wastes by enacting and enforcing an ordinance by the statutory deadline for adoption of the land development regulations. The ordinance shall prohibit disposal into canals, ditches, wetlands, stormwater facilities, unlined landfills and other safe areas, as well as require that any land use proposing to store, generate, or handle hazardous waste; develop an emergency response plan addressing accidents; ensure that DER standards for transfer and storage of hazardous waste are implemented; and, ensure that the site will not degrade quality of ground or surface water or other natural resources. INFRASTRUCTURE ELEMENT Section 163.3177(6)(c), Florida Statutes, requires that the plan include a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (commonly identified as the "Infrastructure Element") as follows: A general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area. The element may be a detailed engineering plan including a topographic map depicting areas of prime groundwater recharge. The element shall describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to s. 373.0395. These areas shall be given special consideration when the local government is engaged in zoning or considering future land use for said designated areas. For areas served by septic tanks, soil surveys shall be provided which indicate the suitability of soils for septic tanks. (emphasis supplied) Section 373.0395, Florida Statutes, provides: Each water management district shall develop a ground water basin resource availability inventory covering those areas deemed appropriate by the governing board. This inventory shall include, but not be limited to, the following: A hydrogeologic study to define the ground water basin and its associated recharge areas. Site specific areas in the basin deemed prone to contamination or overdraft resulting from current or projected development. Prime ground water recharge areas. Criteria to establish minimum seasonal surface and ground water levels. Areas suitable for future water resource development within the ground water basin. Existing sources of wastewater discharge suitable for reuse as well as the feasibility of integrating coastal wellfields. Potential quantities of water available for consumptive uses. Upon completion, a copy of the ground water basin availability inventory shall be submitted to each affected municipality, county, and regional planning agency. This inventory shall be reviewed by the affected municipalities, counties, and regional planning agencies for consistency with the local government comprehensive plan and shall be considered in future revisions of such plan. It is the intent of the Legislature that future growth and development planning reflect the limitations of the available ground water or other available water supplies. (emphasis suplied) Although Jefferson County's groundwater system includes the upper and lower Floridan Aquifer, the regional water management districts have not completed their studies and have not designated areas of Jefferson County as prime groundwater recharge areas for the Floridan or Biscayne aquifers, pursuant to Section 373.0395. Accordingly, the plan does not designate areas of prime groundwater recharge. Plan maps indicate where the potential for high recharge exists. As stated in the "needs assessment" at page 57 of the support documents to the Conservation Element: [A]t the present time insufficient information is available to allow the county to institute a site specific comprehensive aquifer recharge protection program. This problem should be remedied with the completion of the GWBRAI groundwater basin study for Jefferson County by the NWFWMD (Northwest Florida Water Management District) and the SRWMD (Suwanee River Water Management District). Until this GWBRAI becomes available, the county should adopt interim measures to promote protection of aquifer recharge functions, based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. The interchange at I-10/S.R. 59 exists over a potential area of high groundwater recharge. Pursuant to the special exception requirements set forth in the "mixed use business interchange" designation, the area shall receive special consideration in zoning or considering future land use for the area. Until prime groundwater recharge areas are designated, in order to promote protection of aquifer recharge functions, land use decisions will be based on the known characteristics of development within the County, and general knowledge of aquifer recharge principles. Rule 9J-5.011(2)(c)(3), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for establishing and utilizing potable water conservation strategies and techniques. Rule 9J-5.011(2)(c)(4), Florida Administrative Code, states that an Infrastructure Element shall contain policies addressing the implementation activities for regulating land use and development to protect the functions of natural drainage features and natural groundwater aquifer recharge areas. The Jefferson County Comprehensive Plan Infrastructure Element includes the information required by the statute and rules. Jefferson County's Infrastructure Element Goal 4 is to conserve and preserve the values and functions of the County's natural groundwater aquifer recharge areas. Infrastructure Element Goal 4, Objective 1 provides: The County shall conserve and protect the values and functions of natural groundwater aquifer recharge areas from adverse impacts through adoption of land development regulations by the statutory deadline and coordination with federal, state, and local agencies throughout the planning period. Infrastructure Element Goal 4, Policy 1-1 provides: The County shall seek assistance from the Northwest Florida and Suwanee River Water Management Districts in the management of prime aquifer recharge areas, once such information is made available. The comprehensive plan shall be amended at that time as necessary to protect prime aquifer recharge areas. Infrastructure Element Goal 4, Policy 1-2 provides: The land development regulations shall limit impervious surface ratios for new development and shall require management of stormwater to ensure post development run-off does not exceed predevelopment run-off rates. Infrastructure Element Goal 4, Policy 1-3 provides: The County shall allow the re-use of treated effluent and stormwater for irrigation, and shall encourage such re-use during the site plan review process. Infrastructure Element Goal 4, Policy 1-8 provides for closure of the current landfill upon completion of the replacement landfill, such closure to be handled in accordance with DER requirements. Infrastructure Element Goal 2, Policy 2-1 sets forth limits on the use of new on-site wastewater treatment systems in new development and provides that such existing on-site systems may remain in service until central service is available. INTERGOVERNMENTAL COORDINATION Petitioners allege that the Intergovernmental Coordination Element contained within the plan is not in compliance, in that it allegedly fails to provide a mechanism for coordinating protection of the Floridan Aquifer and water quality in Leon and Jefferson Counties. Petitioners further allege that the plan contains no coordination of common issues such as fire protection and protection of drinking water. The goals, objectives, and policies of the Intergovernmental Coordination Element appropriately provide for formalized coordination of land use decisions with surrounding counties in order to protect water quality and quantity. The Intergovernmental Coordination Element does not specifically address fire protection. However, the evidence fails to establish that currently available fire protection is inadequate, or that, if additional protection is required, the county is unable to provide such services. INTERNAL INCONSISTENCY Section 163.3177(2), Florida Statutes, provides: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.... Rule 9J-5.005(5)(a), Florida Administrative Code, provides: The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format. Where data are relevant to several elements, the same data shall be used, including population estimates and projections. Petitioners allege that the plan's Future Land Use Element, which includes the "mixed use interchange business" designation, is inconsistent with the policies and goals of the Conservation Element, which includes the policies related to water quality protection. The evidence fails to support the assertion that the plan is internally inconsistent. The "mixed use interchange business" designation, including the enhanced scrutiny of the special exception provisions for specified and more intensive uses, is not inconsistent with the provisions of the plan related to protection of groundwater and aquifer recharge areas. Further, the evidence does not establish that the plan is inconsistent with Chapter 187, Florida Statutes, the state's comprehensive plan. Petitioners asserted that the plan did not contain the best available information in existence at the time the plan was adopted. Section 163.3177(10)(e), Florida Statutes, provides: It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data....Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments.... The county did not, and is not required to, produce original data in order to prepare and adopt a comprehensive plan. Petitioners suggest that the DCA erred in not considering Department of Environmental Regulation data identifying petroleum storage facilities which experienced leaks or spills reported to the DER. However, the evidence offered by Petitioners at hearing did not support the suggestion that such data was more appropriately considered than the data set forth in the county's plan. The inference suggested by Petitioner's evidence is that some petroleum storage facilities pose a threat to groundwater supplies due to leaking tanks and operational errors. However, the evidence does not indicate whether such facilities were designed to the prevent such occurrences, the types of safeguards installed, the types of maintenance required at such facilities (and whether it was performed), or whether, and the extent to which, the reported leaks or spills resulted in ground or surface water contamination. The Petitioners further assert that the plan's data related to aquifer recharge is unacceptable because it is not site specific. The general aquifer recharge map in the plan is based upon U.S. Geological Survey data, and a U.S. Bureau of Geology map. The plan also includes wetlands maps based on U.S. government information and a National Wetlands Conservatory survey. Due to the failure of the water management districts to complete the study of the county's prime aquifer recharge areas, reliable site specific information is not yet available. The plan maps adequately indicate the areas where the potential for high groundwater recharge may exist.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Community Affairs enter a Final Order dismissing the Petition of Friends of Lloyd, Inc., Robert B. Rackleff and Jo Ellyn Rackleff and finding the Jefferson County Comprehensive Plan to be "in compliance" as defined at Section 163.3184(1)(b), Florida Statutes. RECOMMENDED this 31st day of July, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991.
Findings Of Fact Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/ Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide: Sec. 9.5-286. Shoreline setback. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line. The creation of Stirrup Key Subdivision. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved." Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/ While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line. The Monroe County comprehensive plan and land development regulations. The Monroe County comprehensive plan, effective September 15, 1986, provides: 11. FUTURE LAND USE ELEMENT Sec. 2-101. Introduction. A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan. After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. 163.3194(1), Fla. Stat. The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making. Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision- making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process. The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that will guide future land use decisions in the County . . . . Sec. 2-102. General. A. OBJECTIVES 1. To establish a land use management system that protects the natural environment of Monroe County. Sec. 2-103. Natural Environment. The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit. It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. OBJECTIVES To manage and control the use of land so that the natural environment of Monroe County is protected. POLICIES To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Sec. 2-115. Enforcement A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrass, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies These biotic communities will be preserved to the fullest extent possible. The Monroe County land development regulations, likewise effective September 15, 1986, provide: Sec. 9.5-3. Rules of construction In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. A. Generally: All provisions, terms, phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specifically provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling. f. Nontechnical and technical words: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning. m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]: Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible. Sec. 9.5-286. Shoreline setback All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The shoreline, altered or unaltered? While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as: Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . . It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304 (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d 153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1990. WILLIAM J. KENDRICK 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 25th day of June 1990.
The Issue The issue is whether a Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan, known as Apoxsee,2 was adopted in 1981. In 1989, the County adopted a revised and updated version of that Plan. The current Plan was adopted in 1997 and is based on an Evaluation and Appraisal Report (EAR) approved by the County on February 20, 1996. After a lengthy process which began several years earlier, included input from all segments of the community, and involved thousands of hours of community service, on February 28, 2002, the County submitted to the Department a package of amendments comprised of an overlay system (with associated goals, objectives, and policies) based on fifty- year projections of growth. The amendments were in response to Future Land Use Policy 4.7 which mandated the preparation of a year 2050 plan for areas east of Interstate 75, which had served as an urban growth boundary in the County since the mid-1970s. Through the overlays, the amendments generally established areas in the County for the location of villages, hamlets, greenways, and conservation subdivisions. On May 10, 2002, the Department issued its Objections, Recommendations, and Comments (ORC). In response to the ORC, on July 10, 2002, the County enacted Ordinance No. 2001-76, which included various changes to the earlier amendment package and generally established six geographic overlay areas in the County, called Resource Management Areas (RMAs), with associated goals, objectives, and policies in the Future Land Use Chapter. The RMAs include an Urban/Suburban RMA, an Economic Development RMA, a Rural Heritage/Estate RMA, a Village/Estate/Open Space RMA, a Greenway RMA, and an Agriculture/Reserve RMA. The amendments are more commonly known as Sarasota 2050. The revised amendment package was transmitted to the Department on July 24, 2002. On September 5, 2002, the Department issued its Notice of Intent to find the amendments in compliance. On September 26, 2002, Manasota-88, Compton, and Ayech (and four large landowners who subsequently voluntarily dismissed their Petitions) filed their Petitions challenging the new amendments. In their Pre-Hearing Stipulation, Manasota-88 and Compton contend that the amendments are not in compliance for the following reasons: vagueness and uncertainties of policies; an inconsistent, absent or flawed population demand and urban capacity allocation methodology; inconsistent planning time frames; overallocation of urban capacity; urban sprawl; failure to coordinate future land uses with planned, adequate and financially feasible facilities and services; failure to protect wetlands, wildlife and other natural resources; failure to meet requirements for multimodal and area-wide concurrency standards; failure to provide affordable housing; land use incompatibility of land uses and conditions; indefinite mixed uses and standards; lack of intergovernmental coordination; and inadequate opportunities for public participation the Amendment is internally inconsistent within itself and with other provisions of the Sarasota County Comprehensive Plan, is not supported by appropriate data and analysis and is inconsistent with the State Comprehensive Plan and the Strategic Regional Policy [P]lan of the Southwest Regional Planning Council. In the Pre-Hearing Stipulation, Ayech has relied on the same grounds as Manasota-88 and Compton (except for the allegation that the amendments lack intergovernmental coordination). In addition, she has added an allegation that the amendments fail to adequately plan "for hurricane evacuation." The Parties The Department is the state planning agency responsible for review and approval of comprehensive plans and amendments. The County is a political subdivision responsible for adopting a comprehensive plan and amendments thereto. The County adopted the amendments being challenged here. At the commencement of the hearing, the parties stipulated that Petitioners either reside, own property, or own or operate a business within the County, and that they made comments, objections, or recommendations to the County prior to the adoption of the Amendment. These stipulated facts establish that Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and have standing to initiate this action. Given the above stipulation, there was no testimony presented by Manasota-88 describing that organization's activities or purpose, or by Compton individually. As to Ayech, however, she is a resident of the County who lives on a 5-acre farm in the "Old Miakka" area east of Interstate 75, zoned OUE, which is designated as a rural classification under the Plan. The activities on her farm are regulated through County zoning ordinances. The Amendment Generally Under the current Plan, the County uses a number of growth management strategies including, but not limited to: an urban services area (USA) boundary; a minimum residential capacity "trigger" mechanism, that is, a minimum dwelling unit capacity of 133 percent of housing demand projected for a ten- year plan period following each EAR, to determine when the USA boundary may need to be moved; a future urban area; and concurrency requirements. Outside the USA, development is generally limited to no greater than one residential unit per five acres in rural designated areas or one unit per two acres in semi-rural areas. The current Plan also includes a Capital Improvement Element incorporating a five-year and a twenty-plus-year planning period. The five-year list of infrastructure projects is costed and prioritized. In the twenty-plus-year list, infrastructure projects are listed in alphabetical order by type of facility and are not costed or prioritized. The construction of infrastructure projects is implemented through an annual Capital Improvement Program (CIP), with projects generally being moved between the twenty-plus-year time frame and the five-year time frame and then into the CIP. All of the County's future urban capacity outside the USA and the majority of capacity remaining inside the USA are in the southern part of the County (south of Preymore Street extended, and south of Sarasota Square Mall). As the northern part of the County's urban capacity nears buildout, the County has experienced considerable market pressure to create more urban designated land in the northern part of the County and/or to convert undeveloped rural land into large lot, ranchette subdivisions. Because of the foregoing conditions, and the requirement in Future Land Use Policy 4.1.7 that it prepare a year 2050 plan for areas east of Interstate 75, the County began seeking ways to encourage what it considers to be a "more livable, sustainable form of development." This led to the adoption of Sarasota 2050. As noted above, Sarasota 2050 consists of six geographic overlay areas in the Future Land Use Map (FLUM), called RMAs, with associated goals, objectives, and policies. As described in the Plan, the purpose and objective of the Amendment is as follows: The Sarasota County Resource Management Area (RMA) Goal, Objectives and Policies are designed as a supplement to the Future Land Use Chapter of Apoxsee. The RMAs function as an overlay to the adopted Future Land Use Map and do not affect any rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance or the Land Development Regulations of Sarasota County or previously approved development orders; provided, however, that Policy TDR 2.2 shall apply to land located within the Rural/Heritage Estate, Village/ Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. To accomplish this purpose and objective, the RMAs and their associated policies are expressly designed to preserve and strengthen existing communities; provide for a variety of land uses and lifestyles to support diverse ages, incomes, and family sizes; preserve environmental systems; direct population growth away from floodplains; avoid urban sprawl; reduce automobile trips; create efficiency in planning and provision of infrastructure; provide County central utilities; conserve water and energy; allocate development costs appropriately; preserve rural character, including opportunities for agriculture; and balance jobs and housing. The Amendment creates an optional, alternative land use policy program in the Plan. To take advantage of the benefits and incentives of this alternative program, a property owner must be bound by the terms and conditions in the goal, objectives, and policies. Policy RMA1.1 explains it this way: The additional development opportunities afforded by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies are provided on the condition that they are implemented and can be enforced as an entire package. For example, the densities and intensities of land use made available by the Sarasota 2050 Resource Management Area Goal, Objectives and Policies may not be approved for use outside the policy framework and implementing regulatory framework set forth herein. Policy RMA1.3 expresses the Amendment’s optional, alternative relationship to the existing Plan as follows: The Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall not affect the existing rights of property owners to develop their property as permitted under the Comprehensive Plan, the Zoning Ordinance, the Land Development Regulations or previously approved development orders; provided, however, that TDR 2.2 [relating to transfer of development rights] shall apply to land located within the Rural Heritage/ Estate, Village/Open Space, Greenway and Agricultural Reserve RMAs where an increase in residential density is sought. If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. Therefore, if a landowner chooses to pursue the alternative development opportunities, he essentially forfeits his current development rights and accepts the terms and conditions of Sarasota 2050. The RMAs The RMAs were drawn in a series of overlays to the FLUM based on the unique characteristics of different areas of the County, and they result in apportioning the entire County into six RMAs. They are designed to identify, maintain, and enhance the diversity of urban and rural land uses in the unincorporated areas of the County. The Urban/Suburban RMA is an overlay of the USA and is comparable to the growth and development pattern defined by the Plan. Policies for this RMA call for neighborhood planning, providing resources for infrastructure, and encouraging development (or urban infill) in a portion of the Future USA identified in the Amendment as the Settlement Area. The Economic Development RMA consists of land inside the USA that is located along existing commercial corridors and at the interchanges of Interstate 75. In this RMA, the policies in the Amendment provide for facilitating economic development and redevelopment by preparing critical area plans, encouraging mixed uses, providing for multi-modal transportation opportunities, creating land development regulations to encourage economic development, and providing more innovative level of service standards that are in accordance with Chapter 163, Florida Statutes. The Greenway RMA consists of lands outside the USA that are of special environmental value or are important for environmental connectivity. Generally, the Greenway RMA is comprised of public lands, rivers and connected wetlands, existing preservation lands, ecologically valuable lands adjacent to the Myakka River system, named creeks and flow- ways and wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s Environmentally Sensitive Lands Priority Protection Program (ESLPPP), and lands deemed to be of high ecological value. This RMA is accompanied by a map depicting the general location of the features sought to be protected. The Rural/Heritage Estate Resource Management RMA consists of lands outside the USA that are presently rural and very low density residential in character and development and are planned to remain in that form. In other words, the RMA's focus is on protecting the existing rural character of this area. To accomplish this objective, and to discourage inefficient use of land in the area, the Amendment contains policies that will create and implement neighborhood plans focusing on strategies and measures to preserve the historic rural character of the RMA. It also provides incentives to encourage the protection of agricultural uses and natural resources through measures such as the creation of land development regulations for a Conservation Subdivision form of use and development in the area. The Agricultural Reserve RMA is made up of the existing agricultural areas in the eastern and southeastern portions of the County. The Amendment contains policies that call for the amendment of the County’s Zoning and Land Development Regulations to support, preserve, protect, and encourage agricultural and ranching uses and activities in the area. Finally, the Village/Open Space RMA is the centerpiece of the RMA program. It consists of land outside the USA that is planned to be the location of mixed-use developments called Villages and Hamlets. The Village/Open Space RMA is primarily the area where the increment of growth and development associated with the longer, 2050 planning horizon will be accommodated. Villages and Hamlets are form-specific, using connected neighborhoods as basic structural units that form compact, mixed-use, master-planned communities. Neighborhoods provide for a broad range and variety of housing types to accommodate a wide range of family sizes and incomes. Neighborhoods are characterized by a fully connected system of streets and roads that encourage alternative means of transportation such as walking, bicycle, or transit. Permanently dedicated open space is also an important element of the neighborhood form. Neighborhoods are to be designed so that a majority of the housing units are within walking distance of a Neighborhood Center and are collectively served by Village Centers. Village Centers are characterized by being internally designed to the surrounding neighborhoods and provide mixed uses. They are designed specifically to serve the daily and weekly retail, office, civic, and governmental use and service needs of the residents of the Village. Densities and intensities in Village Centers are higher than in neighborhoods to achieve a critical mass capable of serving as the economic nucleus of the Village. Villages must be surrounded by large expanses of open space to protect the character of the rural landscape and to provide a noticeable separation between Villages and rural areas. Hamlets are intended to be designed as collections of rural homes and lots clustered together around crossroads that may include small-scale commercial developments with up to 20,000 square feet of space, as well as civic buildings or shared amenities. Each Hamlet is required to have a public/civic focal point, such as a public park. By clustering and focusing development and population in the Village and Hamlet forms, less land is needed to accommodate the projected population and more land is devoted to open space. The Village/Open Space RMA is an overlay and includes FLUM designations. According to the Amendment, the designations become effective if and when a development master plan for a Village or Hamlet is approved for the property. The Urban/Suburban, Agricultural Reserve, Rural Heritage/Estate, Greenway, and Economic Development RMAs are overlays only and do not include or affect FLUM designations. For these five RMAs, the FLUM designation controls land use, and any changes in use that could be made by using the overlay policies of the Amendment that are not consistent with the land's future land use designation would require a land use redesignation amendment to the Plan before such use could be allowed. Data and analysis in support of the amendment The County did an extensive collection and review of data in connection with the Amendment. In addition to its own data, data on wetlands, soils, habitats, water supplies, and drainage with the Southwest Florida Water Management District (District) and the Florida Fish and Wildlife Conservation Commission (FFWCC) were reviewed. Data from the BEBR were used in deriving population and housing demand forecasts for the 2050 planning period. Transportation system modeling was performed using data from the local Metropolitan Planning Agency (MPA). The MPA uses the Florida State Urban Transportation Model Structure (FSUTMS), which is commonly used throughout the State for transportation modeling and planning purposes. Expert technical assistance was also provided by various consulting firms, including the Urban Land Institute, Analytica, Zimmerman/Volk Associates, Inc., Urban Strategies, Inc., Duany-Plater-Zyberk, Glatting Jackson, Fishkind & Associates, Stansbury Resolutions by Design, and Kumpe & Associates. In addition, the Urban Land Institute prepared a comprehensive report on the benefits of moving towards new urbanist and smart growth forms east of Interstate 75 and a build-out 2050 planning horizon. Finally, topical reports were prepared on each of the RMAs, as well as on public participation, financial feasibility and fiscal neutrality, market analysis, and infrastructure analysis. In sum, the data gathered, analyzed, and used by the County were the best available data; the analyses were done in a professionally acceptable manner; and for reasons more fully explained below, the County reacted appropriately to such data. Petitioners' Objections Petitioners have raised a wide range of objections to the Amendment, including a lack of data and analyses to support many parts of the Amendment; flawed or professionally unacceptable population and housing projections; a lack of need; the encouragement of urban sprawl; a lack of coordination between the future land uses associated with the Amendment and the availability of capital facilities; a flawed transportation model; a lack of meaningful and predictable standards and guidelines; internal inconsistency; a failure to protect natural resources; a lack of economic feasibility and fiscal neutrality; and inadequate public participation and intergovernmental coordination. Use of a 50-year planning horizon Petitioners first contend that the Amendment is not in compliance because it has a fifty-year planning time frame rather than a five or ten-year time frame, and because it does not have the same time frame as the Plan itself. Section 163.3177(5)(a), Florida Statutes, provides that "[e]ach local government comprehensive plan must include at least two planning periods, one covering at least the first 5-year period occurring after the plan's adoption and one covering at least a 10-year period." See also Fla. Admin. Code R. 9J-5.005(4). However, nothing in the statute or rule prohibits a plan from containing more than two planning horizons, or for an amendment to add an additional fifty-year planning period. Therefore, the objection is without merit. Population and housing need projections For a fifty-year plan, the County had to undertake an independent analysis and projection of future population in the County. In doing so, the County extrapolated from BEBR medium range 2030 projections and calculated a need for 82,000 new homes over the 2050 period. Examining building permit trends over the prior ten years, the County calculated a high- end projection of 110,000 new homes. The County developed two sets of estimates since it is reasonable and appropriate to use more than one approach to produce a range of future projections. The County based its planning on the lower number, but also assessed water needs relative to the higher number. The data and sources used by the County in making the population and housing need projections are data and sources commonly used by local governments in making such projections. The County's expert demographer, Dr. Fishkind, independently evaluated the methodologies used by the County and pointed out that the projections came from the BEBR mid- range population projections for the County and that, over the years, these projections have been shown to be reliably accurate. The projections were then extended by linear extrapolation and converted to a housing demand in a series of steps which conformed with good planning practices. The projections were also double-checked by looking at the projected levels of building permits based on historical trends in the previous ten years' time. These two sets of calculations were fairly consistent given the lengthy time frame and the inherent difficulty in making long-range forecasts. Dr. Fishkind also found the extrapolation from 2030 to 2050 using a linear approach to be appropriate. This is because medium-term population projections are linear, and extrapolation under this approach is both reasonable and proper. Likewise, Dr. Fishkind concluded that comparing the projections to the projected level of building permits based on historical trends is also a reasonable and acceptable methodology and offers another perspective. Manasota-88's and Compton's expert demographer, Dr. Smith, disagreed that the County’s methodology was professionally acceptable and opined instead that the mid- range 2050 housing need was 76,800 units. He evidently accepted the BEBR mid-range extrapolation done by the County for the year-round resident population of the County through 2050, but disagreed on the number of people associated with the functional population of the County. To calculate the actual number of persons in the County and the number of homes necessary to accommodate those persons, it is necessary to add the persons who reside in the County year-round (the "resident population") to the number of people who live in the County for only a portion of the year (the "seasonal population"). See Fla. Admin. Code R. 9J- 5.005(2)(e)("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") The BEBR projections are based on only the resident population. The County’s demographer assigned a 20 percent multiplier to the resident population to account for the seasonal population. This multiplier has been in the Plan for many years, and it has been used by the County (with the Department's approval) in calculating seasonal population for comprehensive planning purposes since at least 1982. Rather than use a 20 percent multiplier, Dr. Smith extrapolated the seasonal population trend between the 1990 census and the 2000 census and arrived at a different number for total county housing demand. Even so, based on the fifty- year time frame of the Amendment, the 2050 housing demand number estimated by Dr. Smith (76,800 units) is for all practical purposes identical to the number projected by the County (82,000). Indeed, Dr. Fishkind opined that there is no statistically significant difference between the County's and Dr. Smith's projections. Section 163.3177(6)(a), Florida Statutes, requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area." The "need" issue is also a factor to be considered in an urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The County's evidence established that the allocation ratio of housing supply to housing need associated with the best-case scenario, that is, a buildout of existing areas and the maximum possible number of units being approved in the Villages, was nearly 1:1. Adding the total number of remaining potential dwelling units in the County at the time of the Amendment, the total amount of potential supply for the 2050 period was 82,500 units. This ratio is more conservative than the ratios found in other comprehensive plans determined to be in compliance by the Department. In those plans, the ratios tend to be much greater than 1:1. Petitioners objected to the amount of allocation, but offered no independent allocation ratio that should have been followed. Instead, Manasota-88's and Compton's expert undertook an independent calculation of potential units which resulted in a number of units in excess of 100,000 for the next twenty years. However, the witness was not capable of recalling, defending, or explaining these calculations on cross-examination, and therefore they have been given very little weight. Moreover, the witness clearly did not factor the transfer of density units or the limitations associated with the transfer of such units required by the policies in the Amendment for assembling units in the Villages. Given these considerations, it is at least fairly debatable that Sarasota 2050 is based on relevant and appropriate population and housing need projections that were prepared in a professionally acceptable manner using professionally acceptable methodologies. Land use suitability Petitioners next contend that the identification of the RMAs is not based on adequate data and analyses of land use suitability. In this regard, Section 163.3177(6)(a), Florida Statutes, requires that future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." See also Fla. Admin. Code R. 9J-5.006(2), which sets forth the factors that are to be evaluated when formulating future land use designations. The Amendment was based upon a land use suitability analysis which considered soils, wetlands, vegetation, and archeological sites. There is appropriate data and analyses in the record related to such topics as "vegetation and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The data were collected and analyzed in a professionally acceptable manner, and the identification of the RMAs reacts appropriately to that data and analyses. The County's evidence demonstrated that the locations chosen for the particular RMAs are appropriate both as to location and suitability for development. It is at least fairly debatable that the Amendment is supported by adequate data and analyses establishing land use suitability. Urban sprawl and need Petitioners further contend that the Amendment fails to discourage urban sprawl, as required by Florida Administrative Code Rule 9J-5.006(5), and that it is not supported by an appropriate demonstration of need. Need is, of course, a component of the overall goal of planning to avoid urban sprawl. The emerging development pattern in the northeast area of the County tends toward large-lot development. Here, the RMA concept offers a mixture of uses and requires an overall residential density range of three to six units per net developable Village acre, whereas most of the same residential areas of the County presently appear to have residential densities of one unit per five acres or one unit per ten acres. If the Villages (and Hamlets) are developed according to Plan, they will be a more desirable and useful tool to fight this large-lot land use pattern of current development and constitute an effective anti-urban sprawl alternative. Petitioners also allege that the Amendment will allow urban sprawl for essentially three reasons: first, there is no "need" for the RMA plan; second, there are insufficient guarantees that any future Village or Hamlet will actually be built as a Village or similar new urbanist-type development; and third, the Amendment will result in accelerated and unchecked growth in the County. The more persuasive evidence showed that none of these concerns are justified, or that the concerns are beyond fair debate. The Amendment is crafted with a level of detail to ensure that a specific new urbanist form of development occurs on land designated as Village/Open Space land use. (The "new urbanistic form" of development is characterized by walkable neighborhoods that contain a diversity of housing for a range of ages and family sizes; provide civic, commercial, and office opportunities; and facilitate open space and conservation of natural environments.) The compact, mixed-use land use pattern of the Villages and Hamlets is regarded as Urban Villages, a development form designed and recognized as a tool to combat urban sprawl. "New town" is defined in Florida Administrative Code Rule 9J-5.003(80) as follows: "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. . The Village/Open Space RMA is consistent with and furthers the concept embodied in this definition, that is, the creation of an efficient urban level of mixed-use development. Urban Villages referenced in the Rule are also a category and development form expressly recognized to combat urban sprawl. The Village/Open Space RMA policies include the types of land uses allowed, the percentage distribution among the mix of uses, and the density or intensity of each use. Villages must include a mix of uses, as well as a range of housing types capable of accommodating a broad range of family sizes and incomes. The non-residential uses in the Village, such as commercial, office, public/civic, educational, and recreational uses, must be capable of providing for most of the daily and weekly retail, office, civic, and governmental needs of the residents, and must be phased concurrently with the residential development of the Village. The policies set the minimum and maximum size for any Village development. Other policies establish standards for the minimum open space outside the developed area in the Village. The minimum density of a Village is three dwelling units per acre, the maximum density is six dwelling units per acre, and the target density is five dwelling units per acre. An adequate mix of non-residential uses must be phased with each phase or subphase of development. The maximum amount of commercial space in Neighborhood Centers is 20,000 square feet. Village Centers can be no more than 100 acres, the maximum amount of commercial space is 300,000 square feet, and the minimum size is 50,000 square feet. The Town Center may have between 150,000 and 425,000 square feet of gross leasable space. Villages must have sufficient amounts of non-residential space to satisfy the daily and weekly needs of the residents for such uses. Percentage minimums and maximums for the land area associated with uses in Village Centers and the Town Center are also expressed in the policies. Hamlets have a maximum density of one dwelling unit per acre and a minimum density of .4 dwelling unit per acre. The maximum amount of commercial space allowed in a Hamlet is 10,000 square feet. The number of potential dwelling units in the Village/Open Space RMA is limited to the total number of acres of land in the Village/Open Space and Greenway RMAs that are capable of transferring development rights. Calculations in the data and analyses submitted to the Department, as well as testimony at the hearing, set this number at 47,000-47,500 units once lands designated for public acquisition under the County’s ESLPPP are properly subtracted. To take advantage of the Village option and the allowable densities associated with Villages, property owners in the Village/Open Space RMA must assemble units above those allowed by the Plan's FLUM designation by acquiring and transferring development rights from the open space, the associated greenbelt and Greenway, the Village Master Plan, and other properties outside the Village. The means and strategy by which transfer sending and receiving areas are identified and density credits are acquired are specified in the Amendment. There are three village areas (South, Central, and North) in the Village/Open Space RMA, and the amendment limits the number of Villages that may be approved in each of the areas. In the South and Central Village areas, a second village cannot be approved for fifteen years after the first village is approved. The amount of village development in the South Village must also be phased to the construction of an interchange at Interstate 75 and Central Sarasota Parkway. In the North Village area, only one village may be approved. In addition, to further limit the amount and rate of approvals and development of Villages, village rezonings and master plans cannot be approved if the approval would cause the potential dwelling unit capacity for urban residential development within the unincorporated county to exceed 150 percent of the forecasted housing demand for the subsequent twenty-year period. To evaluate the housing demand for the subsequent twenty-year period, among other things, Policy VOS2.1(a)2. sets forth the following items to be considered in determining housing demand: Housing demand shall be calculated by the County and shall consider the medium range population projections of the University of Florida’s Bureau of Economic and Business Research for Sarasota County, projected growth in the Municipalities and residential building permit activity in the Municipalities and unincorporated County. Petitioners contend that Policy VOS2.1 is an illegal population methodology. However, the County established that the Policy merely sets forth factors to be considered and does not express a specific methodology. The County’s position is consistent with the language in the policy. Petitioners also contend that the policy is vague and ambiguous because the outcome of the application of the factors is not ordained (since weights are not assigned to each factor), and because building permit activity is not a valid or proper factor to consider in making housing demand projections. The evidence establishes, however, that the factors are all proper criteria to consider in making housing projections, and that a fixed assignment of weights for each item would be inappropriate. In fact, even though Manasota- 88's and Compton's demographer stated that building permit activity is not an appropriate factor to consider, he has written articles that state just the opposite. The County also established that Sumter County (in central Florida) had examined and used building permit activity in projecting population in connection with their comprehensive plan, and had done so after consulting with BEBR and receiving confirmation that this factor was appropriate. That building permit activity demonstrated that population projections and housing demand were higher in Sumter County than BEBR was projecting at the time, and that Sumter County’s own projections were more accurate than BEBR's projections. Petitioners essentially claim that the County should only use BEBR's medium range projections in calculating future housing needs. However, the evidence does not support this contention. Future housing need is determined by dividing future population by average household size. Because BEBR's medium population projections for a county include all municipalities in the county, they must always be modified to reflect the unincorporated county. Moreover, BEBR's projections are the result of a methodology that first extrapolates for counties, but then adjusts upward or downward to match the state population projection. A projection based on this medium range projection, but adjusted by local data, local information, and local trends, is a more accurate indicator of population, and therefore housing need, than simply the BEBR county-wide medium range projection. At the same time, future conditions are fluid rather than static, and the clear objective of Policy VOS2.1 is to project housing demand as accurately as possible. Assigning fixed weights to each factor would not account for changing conditions and data at particular points in time and would be more likely to lead to inaccurate projections. As specified in Policy VOS2.1, the factors can properly serve as checks or balances on the accuracy of the projections. Given that the clear intent of Policy VOS2.1 is to limit housing capacity and supply, accurately determining the housing demand is the object of the policy, and it is evident that the factors should be flexibly applied rather than fixed as to value, weight, or significance. There is also persuasive evidence that the RMA amendments can be reasonably expected to improve the Plan by providing an anti-sprawl alternative. Florida Administrative Code Rule 9J-5.006(5)(k) directly addresses this situation in the following manner: If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. (emphasis added) Petitioners did not offer persuasive evidence to refute the fact that the RMAs would improve the existing development pattern in the County. While Petitioners alleged that the Amendment allows for the proliferation of urban sprawl in the form of low-density residential development, the evidence shows, for example, that the County's current development pattern in the USA has an overall residential density between two and three units per acre. The Rural Heritage/Estate and Agricultural Reserve RMAs may maintain or reduce the existing density found in the Plan by the transfer of development rights. The three to six dwelling units per net developable residential acre required for Village development in the Village/Open Space RMA, coupled with the Amendment's specific policies directing the location of higher density residential uses, affordable housing, and non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl land use form. They also provide a density of focused development that diminishes, rather than exacerbates, the existing potential for sprawl found in the Plan. In reaching his opinions on urban sprawl, Manasota- 88's and Compton's expert indicated that he only assessed the question of sprawl in light of the thirteen primary indicators of sprawl identified in Florida Administrative Code Rule 9J- 5.006(5)(g). Unlike that limited analysis, the County's and the Department's witnesses considered the sprawl question under all of the provisions of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 and concluded that the Amendment did not violate the urban sprawl prohibition. As they correctly observed, there are other portions of the law that are critically relevant to the analysis of sprawl in the context of this Amendment. Urban villages described in Florida Administrative Code Rule 9J- 5.003(80) are a category and development form expressly designed to combat urban sprawl. In addition, Florida Administrative Code Rule 9J-5.006(5)(l) recognizes urban villages and new towns as two "innovative and flexible" ways in which comprehensive plans may discourage the proliferation of urban sprawl. The more persuasive evidence establishes that the Village form contained in the Amendment will discourage urban sprawl. The types and mix of land uses in the amendment are consistent with Florida Administrative Code Chapter 9J-5 and will serve to discourage urban sprawl. Therefore, it is at least fairly debatable that the Amendment does not exacerbate existing indicators of urban sprawl within the County and serves to discourage the proliferation of urban sprawl. It is also beyond fair debate that the Amendment describes an innovative and flexible planning and development strategy that is expressly encouraged and recognized by Section 163.3177(11), Florida Statutes, and Florida Administrative Code Rule 9J-5.006(5)(l) as a means to avoid and prevent sprawl. Natural resource protection and wetlands impacts Petitioners next allege that the Amendment fails to protect natural resources, as required by Florida Administrative Code Rules 9J-5.006(3)(b)4. and 9J-5.013(2)(b) and (3)(a) and (b). At a minimum, by providing for a Greenway area, clustering of development, large open space requirements, wildlife crossings, floodplain preservation and protection, greenbelts and buffers, transfers of development rights placing higher value on natural resources, best management practices, and the encouragement of development in the RMA pattern, the RMA plan creates a level of natural resource protection greater than the County’s existing Plan. Though Petitioners disagreed with the extent and breadth of the protections afforded by the Amendment, they could only point to one area where protections may not be as significant as in the Plan: wetland impacts in Villages where the Village Center is involved. On this issue, Policy VOS1.5 provides that: The County recognizes that prevention of urban sprawl and the creation of compact, mixed-use development support an important public purpose. Therefore, the approval of a Master Development Plan for a Village may permit impacts to wetlands within the Village Center itself only when it is determined that the proposed wetland impact is unavoidable to achieve this public purpose and only the minimum wetland impact is proposed. Such approval does not eliminate the need to comply with the other wetland mitigation requirements of the Environmental Technical Manual of the Land Development Regulations, including the requirement for suitable mitigation. The Board of County Commissioners will review such proposals on a case-by-case basis as part of the Master Development Plan review process. Contrary to Petitioners' claims, the Policy does not encourage wetland destruction. Impacts to wetlands with appropriate mitigation are allowed under this policy only when the impact is "unavoidable" and "the minimum impact is proposed." The term "unavoidable impact" is not an ambiguous term in the area of wetland regulation. It is not unbridled in the context of the policy, nor is it ambiguous when properly viewed in the context of the overriding concern of the amendment to "preserve environmental systems." The term "unavoidable impact" is used and has application and meaning in other wetland regulatory programs, such as the federal Clean Water Act and the regulations implementing that law. Regulations based on "unavoidable impacts," both in this policy as well as in the state and federal regulations, can be applied in a lawfully meaningful way. Considering the policies regarding environmental systems, habitats, wildlife, and their protection, especially when read in conjunction with the protections required in the Plan, the Amendment as a whole reacts appropriately to the data and can be expected to afford protection of natural resources. The Greenway RMA was based on data and analyses that generated a series of environmental resource overlays, that when completed, comprised the Greenway RMA. The overlays layered public lands, rivers and connected wetlands, preservation lands, ecologically valuable lands associated with the Myakka River system, named creeks and flow-ways, wetlands connected to such creeks and flow-ways, lands listed as environmentally sensitive under the County’s ESLPPP, lands deemed to be of high ecological value, and appropriate connections. The evidence establishes that the staff and consultants reviewed and consulted a wide range of professionally appropriate resources in analyzing and designating the Greenway RMA. Manasota-88 and Compton also contend that the Greenway RMA is inadequate in the sense that the RMA does not include all appropriate areas of the County. This claim was based on testimony that the Greenway did not include certain areas west and south of Interstate 75 in the Urban/Suburban and Economic Development RMAs, as well as a few conservation habitats (preserve areas) set aside by Development of Regional Impacts or restricted by conservation easements. However, the preserve areas and conservation easement properties will be preserved and maintained in the same fashion as the Greenway, so for all practical purposes their non-inclusion in the Greenway is not significant. The area located south of Interstate 75 was found to be the Myakka State Forest, which is in the planning jurisdiction of the City of North Port. Manasota-88's and Compton's witness (an employee of the FFWCC) also advocated a slightly different greenway plan for fish and wildlife resources, which he considered to be a better alternative than the one selected by the County. The witness conceded, however, that his alternative was only one of several alternative plans that the County could properly consider. In this regard, the County’s Greenway RMA reacts to data on a number of factors, only one of which is fish and wildlife. One important factor disregarded by the witness was the influence of private property rights on the designation of areas as greenway. While the FFWCC does not factor the rights of property owners in its identification of greenways, it is certainly reasonable and prudent for the County to do so. This is because the County’s regulatory actions may be the subject of takings claims and damages, and its planning actions are expected to avoid such occurrences. See § 163.3161(9), Fla. Stat. Petitioners also alleged that the lack of specific inclusion of the term "A-E Flood Zone" in the Greenway designation criteria of Policy GS1.1 does not properly react to the data and analyses provided in the Greenway Final Support Document. (That policy enumerates the component parts of the Greenway RMA.) Any such omission is insignificant, however, because in the Greenway RMA areas, the A-E Flood Zone and the areas associated with the other criteria already in Policy GS1.1 are 90 percent coterminous. In addition, when an application for a master plan for a Village is filed, the master plan must specifically identify and protect flood plain areas. At the same time, through fine tuning, the development review process, the open space requirements, and the negotiation of the planned unit development master plan, the remaining 10 percent of the A-E Flood Zone will be protected like a greenway. Greenway crossings The Greenway RMA is designed in part to provide habitat and corridors for movement of wildlife. In the initial drafts of the Amendment, future road crossings of the Greenway were located to minimize the amount of Greenway traversed by roads. After further review by the County, and consultation with a FFWCC representative, the number of crossings was reduced to eleven. The road crossings in the Amendment are not great in length, nor do they bisect wide expanses of the Greenway. All of the proposed crossings traverse the Greenway in areas where the Greenway is relatively narrow. Of the eleven crossings in the Greenway, three crossings presently exist, and these crossings will gain greater protection for wildlife through the design requirements of Policy GS2.4 than they would under the current Plan. Petitioners also expressed concerns with the wording of Policy GS2.4 and contended that the policy was not specific enough with regard to how wildlife would be protected at the crossings. The policy provides that Crossings of the Greenway RMA by roads or utilities are discouraged. When necessary to ensure the health, safety and welfare of the citizenry, however, transportation corridors within the Greenway RMA shall be designed as limited access facilities that include multi-use trails and prohibit non- emergency stopping except at designated scenic viewpoints. Roadway and associated utility corridors shall be designed to have minimal adverse impacts to the environment, including provisions for wildlife crossings based on accepted standards and including consideration of appropriate speed limits. Accordingly, under the policy, wildlife crossings must be designed to facilitate minimal adverse impacts on wildlife, and such designs must be "based on accepted standards." While Petitioners contended that what is required by "accepted standards" is vague and ambiguous, the County established that this language, taken individually or in the context of the policies of the Amendment, is specific and clear enough to establish that a crossing must be properly and professionally designed for the target species that can be expected to cross the Greenway at the particular location. It was also appropriate to design the crossing at the time of the construction of the crossing to best react to the species that will be expected to cross. Although Petitioners disagreed that the policy was acceptable, their witness agreed that it is essential to know what species are inhabiting a particular area before one can design a wildlife crossing that will protect the wildlife using the crossing. He further acknowledged that he typically designs crossings for the largest traveling species that his data indicates will cross the roadway. In deciding where to locate roads, as well as how they should be designed, crossings for wildlife are not the only matter with which the local government must be concerned. Indeed, if it were, presumably there would likely be no roads, or certainly far fewer places where automobiles could travel. To reflect legitimate planning, and to reasonably react to the data gathered by the local government, the County’s road network should reflect recognition of the data and an effort to balance the need for roads with the impacts of them on wildlife. The Amendment achieves this purpose. In summary, Petitioners have failed to show beyond fair debate that the crossings of the Greenway do not react appropriately to the data and analyses, or that the policies of the crossings are so inadequate as to violate the statute or rule. Transportation planning Manasota-88 and Compton next contend that the data and analyses for the transportation planning omit trips, overstate the potential intensity and density of land uses, and understate trips captured in the Villages. The transportation plan was based on use of the FSUTMS, a model recommended by the State and widely used by transportation planners for trip generation and modeling for comprehensive plan purposes. In developing the transportation plan, the County relied upon resources from the Highway Capacity Manual, the Transportation Research Board, and the Institute of Transportation Engineers. It also reviewed the data and analyses based on the modeling performed in September 2001 in the Infrastructure Corridor Plan, an earlier transportation plan used by the County. To ensure that the 2001 model was still appropriate for the Amendment, the County conducted further review and analyses and determined that the modeling was reasonable for use in connection with the Amendment even though the intensity of development eventually provided for in the Villages was less than had been analyzed in the model. The evidence supports a finding that the data was the best available, and that they were evaluated in a professionally acceptable manner. The evidence further shows that the Amendment identifies transportation system needs, and that the Amendment provides for transportation capital facilities in a timely and financially feasible manner. Transportation network modeling was performed for the County both with and without the 2050 Amendment. Based on the modeling, a table of road improvements needed to support the Amendment was made a part of the Amendment as Table RMA-1. Because the modeling factored more residential and non- residential development than was ultimately authorized by the Amendment, the identification of the level of transportation impacts was conservative, as were the improvements that would be needed. Manasota-88 and Compton correctly point out that the improvements contained in the Amendment are not funded for construction. Even so, this is not a defect in the Amendment because the improvements are not needed unless property owners choose to avail themselves of the 2050 options; if they do, they will be required to build the improvements themselves under the fiscal neutrality provisions of the Amendment. Further, the County’s CIP process moves improvements from the five-to-fifteen year horizon to the five-year CIP as the need arises. Thus, as development proposals for Villages or Hamlets are received and approved in the areas east of I-75, specific improvements would be identified and provided for in the development order, or could be placed in the County’s appropriate CIPs, as needed. The improvements necessary under the Amendment can be accommodated in the County’s normal capital improvements planning, and the transportation system associated with the Amendment can be coordinated with development under the Amendment in a manner that will assure that the impacts of development on the transportation system are addressed. It is noted that the Amendment requires additional transportation impact and improvement analysis at the time of master plan submittal and prior to approval of that plan. Accordingly, the Amendment satisfies the requirements of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5 for transportation planning. The County used the best available data and reacted to that data in a professionally appropriate way and to the extent necessary as indicated by the data. As noted above, the transportation impacts and needs were conservatively projected, and the County was likely planning for more facilities than would be needed. It is beyond fair debate that the Amendment is supported by data and analyses. Utilities Manasota-88 and Compton also contend that the Amendment is not in compliance because the policies relating to capital facilities are not supported by data and analyses, and that there is a lack of available capital facilities to meet the demand. The County analyzed data on water supplies and demands and central wastewater facilities needs under the Amendment. The data on water supplies and demands were the best available data and included the District water supply plan as well as the County's water supply master plan. The data were analyzed in a professionally acceptable manner and the conclusions reached and incorporated into the Amendment are supported by the analyses. The utilities system for water and wastewater has been coordinated in the Amendment with the County’s CIP in a manner that will ensure that impacts on the utilities are addressed. The County established that there are more than adequate permittable sources of potable water to serve the needs associated with the Amendment, and that the needed capital facilities for water and wastewater can reasonably be provided through the policies of the Amendment. The evidence showed that the Amendment provides for capital facilities for utilities in a timely and financially feasible manner. The total water needs for the County through the year 2050 cannot be permitted at this time because the District, which is the permitting state agency, does not issue permits for periods greater than twenty years. Also, there must be a demonstrated demand for the resources within a 20- year time frame before a permit will issue. Nonetheless, the County is part of a multi-jurisdictional alliance that is planning for long-term water supplies and permitting well into the future. It has also merged its stormwater, utilities, and natural resources activities to integrate their goals, policies, and objectives for long-term water supply and conservation purposes. No specific CIP for water or wastewater supplies and facilities was adopted in the Amendment. The County currently has water and wastewater plans in its Capital Improvement Element that will accommodate growth and development under the land use policies of the Plan. From the list contained in the Capital Improvement Element an improvement schedule is developed, as well as a more specific five-year CIP. Only the latter, five-year program identifies funding and construction of projects, and the only projects identified in the Capital Improvement Element are projects that the County must fund and construct. Because of the optional nature of the Amendment, supplies and facilities needed for its implementation will only be capable of being defined if and when development under the Amendment is requested. At that time, the specific capital facility needs for the development can be assessed and provided for, and they can be made a part of the County’s normal capital facilities planning under the Plan's Capital Facilities Chapter and its related policies. Policy VOS 2.1 conditions approval of Village development on demonstrating the availability and permitability of water and other public facilities and services to serve the development. Further, the Amendment provides for timing and phasing of both Villages and development in Villages to assure that capital facilities planning, permitting, and construction are gradual and can be accommodated in the County's typical capital improvement plan programs. Most importantly, the fiscal neutrality policies of the Amendment assure that the County will not bear financial responsibility for the provision of water or the construction of water and wastewater capital facilities in the Village/Open Space RMA. Supplies and facilities are the responsibility of the developers of the Villages and Hamlets that will be served. Additionally, Policy VOS3.6 requires that all irrigation in the Village/Open Space RMA (which therefore would include Villages and Hamlets) cannot be by wells or potable water sources and shall be by non-potable water sources such as stormwater and reuse water. The supplies and improvements that will be associated with the optional development allowed by the Amendment have been coordinated with the Plan and can be accommodated in the County's normal capital improvement planning. Through the policies in the Amendment, the water and wastewater facility impacts of the Amendment are addressed. Indeed, due to the fiscal neutrality policies in the Amendment, the County now has a financial tool that will make it easier to fund and provide water and wastewater facilities than it currently has under the Plan. Finally, to ensure that capital facilities are properly programmed and planned, the Amendment also contains Policy VOS2.2, which provides in pertinent part: To ensure efficient planning for public infrastructure, the County shall annually monitor the actual growth within Sarasota County, including development within the Village/Open Space RMA, and adopt any necessary amendments to APOXSEE in conjunction with the update of the Capital Improvements Program. It is beyond fair debate that the capital facilities provisions within the Amendment are supported by adequate data and analyses, and that they are otherwise in compliance. Financial feasibility and fiscal neutrality The Capital Improvement Element identifies facilities for which a local government has financial responsibility, and for which adopted levels of service are required, which include roads, water, sewer, drainage, parks, and solid waste. Manasota-88 and Compton challenge the "financial feasibility" of the Amendment. As noted above, there is significant data and analyses of existing and future public facility needs. The data collection and analyses were conducted in a professionally acceptable manner. The evidence shows that as part of its analyses, the County conducted a cost-benefit analysis of the Village development and determined that Village and Hamlet development can be fiscally neutral and financially feasible. Dr. Fishkind also opined that, based upon his review of the Amendment, it is financially feasible as required by the Act. Policy VOS2.9 of the Amendment provides in part: Each Village and each Hamlet development within the Village/Open Space RMA shall provide adequate infrastructure that meets or exceeds the levels of service standards adopted by the County and be Fiscally Neutral or fiscally beneficial to Sarasota County Government, the School Board, and residents outside that development. The intent of Fiscal Neutrality is that the costs of additional local government services and infrastructure that are built or provided for the Villages or Hamlets shall be funded by properties within the approved Villages and Hamlets. Policies VOS2.1, VOS2.4, and VOS2.9 provide that facility capacity and fiscal neutrality must be demonstrated, and that a Fiscal Neutrality Plan and Procedure for Monitoring Fiscal Neutrality must be approved at the time of the master plan and again for each phase of development. In addition, under Policy VOS2.9, an applicant's fiscal neutrality analysis and plan must be reviewed and approved by independent economic advisors retained by the County. Monitoring of fiscal neutrality is also provided for in Policy VOS2.2. Finally, Policy VOS2.10 identifies community development districts as the preferred financing technique for infrastructure needs associated with Villages and Hamlets. The evidence establishes beyond fair debate that the policies in the Amendment will result in a system of regulations that will ensure that fiscal neutrality will be accomplished. Internal inconsistencies Manasota-88 and Compton further contend that there are inconsistencies between certain policies of the Amendment and other provisions in the Plan. If the policies do not conflict with other provisions of the Plan, they are considered to be coordinated, related, and consistent. Conflict between the Amendment and the Plan is avoided by inclusion of the following language in Policy RMA1.3: If a property owner chooses to take advantage of the incentives provided by the Sarasota 2050 RMA, then to the extent that there may be a conflict between the Sarasota 2050 Resource Management Area Goal, Objectives and Policies and the other Goal[s], Objectives and Policies of APOXSEE, the Sarasota 2050 Resource Management Area Goal, Objectives and Policies shall take precedence. The other Goals, Objectives and Policies of APOXSEE including, but not limited to, those which relate to concurrency management and environmental protection shall continue to be effective after the adoption of these Resource Management Area Goal, Objectives and Policies. As to this Policy, Manasota-88's and Compton's claim is really nothing more than a preference that the Plan policies should also have been amended at the same time to expressly state that where there was a conflict between themselves and the new Amendment policies, the new Amendment would apply. Such a stylistic difference does not amount to the Amendment's not being in compliance. Therefore, it is fairly debatable that the Amendment is internally consistent with other Plan provisions. Public participation and intergovernmental coordination Petitioners next contend that there was inadequate public participation during the adoption of the Amendment as well as a lack of coordination with other governmental bodies. Ayech also asserted that there were inadequate procedures adopted by the County which resulted in less than full participation by the public. However, public participation is not a proper consideration in an in-compliance determination. In addition, the County has adopted all required procedures to ensure public participation in the amendment process. The County had numerous meetings with the municipalities in the County, the Council of Governments (of which the County is a member), and meetings and correspondence by and between the respective professional staffs of those local governments. The County also met with the Hospital Board and the School Board. The evidence is overwhelming that the County provided an adequate level of intergovernmental coordination. Regional and state comprehensive plans Petitioners have alleged violations of the state and regional policy plans. On this issue, Michael D. McDaniel, State Initiatives Administrator for the Department, established that the Amendment was not in inconsistent with the State Comprehensive Plan. His testimony was not impeached or refuted. Petitioners' claim that the Amendment is not consistent with the regional policy plan is based only on a report prepared by the Southwest Florida Regional Planning Council (SWFRPC) at the Amendment’s transmittal stage. There was no evidence (by SWFRPC representatives or others) that the report raised actual inconsistencies with the SWFRPC regional policy plan, nor was any evidence presented that the SWFRPC has found the amendment, as adopted, to be inconsistent with its regional plan. There was no persuasive evidence that the Amendment is either in conflict with, or fails to take action in the direction of realizing goals or policies in, either the state or regional policy plan. Other objections Finally, all other objections raised by Petitioners and not specifically discussed herein have been considered and found to be without merit. County's Request for Attorney's Fees and Sanctions On April 5, 2004, the County filed a Motion for Attorneys Fees and Sanctions Pursuant to F.S. § 120.595 (Motion). The Motion is directed primarily against Ayech and contends that her "claims and evidence were without foundation or relevance," and that her "participation in the proceeding was 'primarily to harass or cause unnecessary delay, or for frivolous purpose.'" The Motion also alleges that Manasota-88 and Compton "participated in this proceeding with an intent to harass and delay the Amendment from taking effect." Replies in opposition to the Motion were filed by Petitioners on April 12, 2004. The record shows that Ayech aligned herself (in terms of issues identified in the Pre-Hearing Stipulation) with Manasota-88 and Compton. While her evidentiary presentation was remarkably short (in contrast to the other Petitioners and the County), virtually all of the issues identified in the parties' Pre-Hearing Stipulation were addressed in some fashion or another by one of Petitioners' witnesses, or through Petitioners' cross-examination of opposing witnesses. Even though every issue has been resolved in favor of Respondents (and therefore found to be either fairly debatable or beyond fair debate), the undersigned cannot find from the record that the issues were so irrelevant or without some evidentiary foundation as to fall to the level of constituting frivolous claims. Accordingly, it is found that Petitioners did not participate in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Sarasota County plan amendment adopted by Ordinance No. 2001-76 on July 10, 2002, is in compliance. DONE AND ENTERED this 14th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2004.
The Issue The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2005.
The Issue Whether the FLP is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact Background Miami Corporation, the applicant for the Volusia County Farmton Local Plan, owns two contiguous and sizable tracts of land in Brevard County and Volusia County. Together they comprise the company's Farmton property (the "Farmton Site"). The portion of the Farmton Site in Brevard County is approximately 11,000 acres. The portion in Volusia County is approximately 47,000 acres. Miami Corporation has owned the property since the 1920's. It began silviculture operations onsite in 1952. The Farmton Site continues today to be used mainly for silviculture. In 2003, Miami Corporation began exploring long-term options for alternative uses. One option was bulk sales of large lot tracts, such as 100-acre tracts, to developers to build homes on the lots. Another option was a comprehensive plan amendment applying "smart growth" principles. The company opted for the latter approach. The smart growth comprehensive plan amendment eventually pursued included the creation of a regional wildlife corridor that extends from the headwaters of the St. Johns River to the Ocala National Forest. Before filing the application for the Original Amendment, Miami Corporation organized meetings of private and public stakeholders to gain input. Representatives from Brevard and Volusia Counties, affected municipalities, the Florida Fish and Wildlife Conservation Commission ("FFWCC"), St. Johns River Water Management District ("SJRWMD"), East Central Florida Regional Planning Council ("ECFRPC"), and conservation organizations participated. After the application of Miami Corporation was filed, the County convened a Peer Review Panel. Chaired by two former Department Secretaries, the panel included nine experts in planning and natural resources fields. The panel made various recommendations that were incorporated into the Farmton Local Plan. Specific recommendations included the creation of a Community Stewardship Organization to protect the most sensitive natural resources. Florida Audubon made additional recommendations to strengthen the conservation measures consistent with mechanisms that experience in other areas of the state had taught Audubon were necessary to achieve conservation measures protective of the area's natural resources that would be perpetual. Due to the scale of the proposed amendment, the County hired an outside transportation engineering firm to review the Farmton Local Plan. In addition, the local plan's natural resource mapping and policies were subjected to two other peer reviews convened by the ECFRPC and University of Florida GeoPlan Center. These reviews included the participation of resource agencies, conservation organizations, and scientists. The County worked closely with Miami Corporation in revising the substantive content of the Farmton Local Plan through over 30 iterations to incorporate recommendations from the peer review process, the Volusia County Growth Management Commission, various County divisions, local governments, state agencies, and conservation organizations. The Brevard County Portion of the Farmton Site The Brevard County portion of the Farmton Site is immediately adjacent to the Volusia County portion of the site. Brevard County adopted an amendment to its comprehensive plan regarding the portion of the Farmton Site in Brevard County. The amendment allows urban development. The amendment was challenged followed by a settlement of the case through the adoption of a remedial amendment. Subsequent to the filing of Case No. 10-2419, the amendment and the remedial amendment to the Brevard County Comprehensive Plan led to a determination that the Brevard Farmton amendments were in compliance. The amendment as remediated became effective with no further challenges. The effectiveness of the amendment to the Brevard County Comprehensive Plan which allows urban-type development was one of several significant events that took place between the 2010 Hearing and the 2011 Hearing. Significant Events Following the filing of proposed recommended orders in Case No. 10-2419, the Department, the County, VGMC, and Miami Corporation moved that the case be placed in abeyance so that settlement discussion could take place. The motion was granted over the objections of the Petitioners in Case No. 10-2419. The settlement discussions led to the Remedial Amendments adopted by the County in April 2011. The Original Amendments and the Remedial Amendments (the "FLP") were determined by the Department to be in compliance. The "in compliance" determination was challenged in a petition filed at the Department on May 16, 2011, by the Petitioners in Case No. 11-2527. The petition was forwarded to DOAH and the case was consolidated with Case No. 10-2419. In the meantime, the Florida Legislature passed chapter 2011-39, Laws of Florida (the "New Law"). The New Law substantially amends chapter 163, including the definition of "in compliance" in section 163.3184(1)(b). It took effect on May 17, 2011, when it was approved by the Governor and filed with the Secretary of State's office. The New Law was determined to be fully applicable to the consolidated cases. Prior to the Brevard County amendments taking effect, the Department regarded the Volusia portion of the Farmton Site as isolated and removed from other urban areas. Once the Brevard County Comprehensive amendments allowing urban development were determined to be in compliance and became effective, the Volusia portion of the Farmton Site became adjacent to "an urban area that is its match to the south." Petitioners' Ex. 6, Deposition of Michael McDaniel, at 14. The effectiveness of the Brevard County plan amendments that place an urban area adjacent to the Volusia Farmton Site was significant to the Department in its determination in 2011 that the FLP is in compliance. The Volusia Farmton Site The FLP applies to 46,597 acres in southern Volusia County. The Volusia Farmton Site is rural and much of it is classified as wetlands. No services or public facilities currently exist on the site. It contains abundant habitat for both upland and wetland dependent species. Within the site there are several outparcels owned by other persons or entities on which low density residential development is allowed by the Volusia County Comprehensive Plan. More significant to the issues in this proceeding, the Comprehensive Plan allows low density residential development on the remainder of the site as well. The site includes approximately 260 miles of dirt roads that are maintained by Miami Corporation. In good condition, the roads are acceptable for ordinary passenger cars. The Current Plan Prior to the adoption of the FLP by the Original Amendment, the Volusia County Comprehensive Plan adopted in 1990 had been updated twice through the Evaluation and Appraisal Process. The first update occurred in 1998 and the second in 2007. (The updated plan was referred to in hearing as the "Current Plan" and was admitted into evidence as Joint Ex. 1.) The intent of the updates "is to take into account changes to state law and to reflect changing conditions within the community." Joint Ex. 1, Introduction, page 3 of 5. Chapters 1 through 18 of the Current Plan contain elements and sub-elements "which are the basic building blocks of the Plan." Id. There are eleven required elements, the first of which is the Future Land Use Element (the "FLUE"). FLUE Overview Section A. of Chapter 1 of the Current Plan entitled, "Overview," states the following: The Future Land Use Element . . . ensures that physical expansion of the urban areas are managed (1) at a rate to support projected population and economic growth; (2) in a contiguous pattern centered around existing urban areas; and (3) in locations which optimize efficiency in public service delivery and conservation of valuable natural resources. * * * [W]hile it reflects existing urban services capacities and constraints, it also establishes locations where future service improvements will follow. It also reflects and promotes . . . activity in the private land market. * * * New urban growth, predicated on appropriate population projections, environmental suitability, and fiscal feasibility will be encouraged adjacent to the major cities that have a full range of urban services or inside County service areas. County service areas may include undeveloped land inside or near existing unincorporated urban areas where the developer agrees to provide necessary urban services through private means. * * * Regarding public systems, the major assumption is that the area adjacent to existing public infrastructure will be the primary areas for future infrastructure extension. Expansion of existing facilities in a fiscally and environmentally appropriate manner will be the primary option. The intent of this concept is to maximize efficiency of urban services through compact development otherwise consistent with the Volusia County Comprehensive Plan. Planned developments include large scale, mixed-use, integrated, compact and distinct urban developments under Chapter 380, Florida Statutes. * * * [A]reas that are outside the proposed development areas or contain environmentally sensitive features will receive special attention to ensure proper management of the County's natural resources. In order to further protect the County's natural resources and promote sustainability, the following will be included in the County mission statement: To balance development and the environment through innovative practices that lessen the impact of the development while preserving natural resources and improving the quality of life for present and future generations. Joint Ex. 1, Chapter 1, pages 2-3 of 109 (emphasis added). Future Land Use Overlays and Designations Future land use overlays and designations are part of the adopted Future Land Use Policies. Id. at page 4 of 109. The entire Volusia Farmton Site is located within the Comprehensive Plan's overlay area of Natural Resources Management Area ("NRMA"). Approximately 11,000 acres of the site lie within the Environmental Core Overlay ("ECO"). There are three land uses on the Volusia Farmton Site under the Current Plan: Forestry Resources ("FR"), 22,294 acres (approximately); Environmental Systems Corridor ("ESC"), 22,344 acres (approximately); and Agricultural Resources ("AR"), 2,309 acres (approximately). Residential densities on the Farmton Site are different for the three land uses allowed on site but all are "low-density" and all have the same floor area ratio ("FAR"): 0.10. The AR land use allows a maximum residential density of one unit per ten acres. The FR land use allows a maximum residential density of one unit per twenty acres or one unit per five acres with clustering. The ESC land use allows a maximum residential density of one unit per 25 acres. The Current Plan would allow 4,692 residential units: 228 in AR; 706 in ESC; and 3,758 in FR. The land designated AR would allow 100,580 square feet of nonresidential development and the land designated FR would allow 719,637 square feet, for a total of 820,217 square feet of non-residential development. Types of Amendments The Current Plan allows four types of amendments: "Mandated," "Administrative," "Development," and "Small Scale." See Joint Ex. 1, 2010 Hearing, Tab 21, p. 5 of 7. The Farmton Local Plan is categorized as a "Development Amendment." A "Development Amendment" is defined by Chapter 21, Section (C)1.c. of the Volusia County Comprehensive Plan (the "Plan" or the "Comprehensive Plan") as: An Amendment which is initiated by the property owner(s) to change the Plan so that a particular development type or land use not otherwise consistent with the Plan, would become consistent following adoption of the amendment. Applicants may be private individuals or a public agency sponsoring an amendment subject to the Comprehensive Plan. Id. Local Plans The FLP is included in the Local Plan section of the Plan's Future Land Use Element. Local Plans in the Comprehensive Plan apply to specific geographic areas and provide a greater level of detail than the Plan in general. The Current Plan includes 13 other Local Plans. Once enacted, "the most detailed portion of the Volusia Comprehensive Plan," tr. 458, will be the FLP. The FLP The Original Amendment The Original Amendment includes one goal, eight related objectives and numerous policies under each of the eight objectives. The Amendment depicts on the Future Land Use Map two new future land use designations: "GreenKey" and "Sustainable Development Area" ("SDA"). The entire site is designated as either GreenKey or SDA. Objective FG 2 in the Amendment states: GreenKey and designated Resource Open Based Space shall be managed for natural resource protection and preservation of interconnected regional wildlife corridors, and conserved in perpetuity. "Resource Based Open Space" ("RBOS") is governed by Policy FG 2.4 of the Original Amendment: Resource Based Open Space. Resource Based Open Space shall be designed within Sustainable Development Area districts to protect and enhance environmental systems. Resource Based Open Space shall not include parcels identified for development (including, but not limited to individual yards), active open space, or civic open space. Resource Based Open Space lands may include areas set aside for ecological preservation, enhancement and restoration, nature trails, conservation education programs, observation decks and similar facilities including lakes used for detention and retention of surface water. Resources [sic] Based Open Space may include, flood plains, wetlands, mitigation areas, vegetative buffers, specialized habitat for flora or fauna, passive recreation areas, water resource development areas, and shall be designed during the development review process. All such lands shall be subject to a conservation management plan, as set forth in FG 2.10 and FG 2.11, and protected in perpetuity by conservation easements. At least 25% of each SDA district shall be Resource Based Open Space. Joint Ex. 7, 2010 Hearing, Tab D-2, pgs. 9 and 10 of 49. The SDAs are primarily altered pine plantation lands. They total approximately 15,000 acres. Within the 15,000 acres of SDA land "are four land use districts which define the uses, densities, and intensities planned for each district." Id. at p. 4 of 49. The four are the Gateway District, Work Place District, Town Center District, and the Villages District. Within GreenKey, the Farmton Local Plan allows the continuation of agricultural uses employing practices regarded as "Best Management Practices" and prohibits residential and nonresidential development. There are two areas in GreenKey with additional natural resource protection standards. They are the Deep Creek Conservation Area which will be conveyed to a Community Stewardship Organization and managed in a primarily natural state and the Southwest Wildlife Corridor which will be managed to maintain habitat for wildlife, particularly for the Florida Black Bear. The FLP includes two long-range planning horizons. The "initial planning horizon" is 2025; "[t]he second planning horizon . . . shall be from 2026 to 2060." Policy FG 1.1, 2010 Hearing Joint Ex. 7, Tab D-2, p. 7 of 49. Through 2025, residential and nonresidential development may only occur within the Gateway District, "a distinct geographic area of approximately 821 acres at the northern end of the Farmton Local Plan near SR 442 and I-95." 2010 Hearing Joint Ex. 7, Tab D-2, 4 of 49. The development in the Gateway District is limited to a maximum under any circumstances of 4,692 residential units and 820,217 square feet of nonresidential development. See Policies FG 1.1, 1.4. "However, in order to plan for school capacity, there shall be no more than 2,287 dwelling units [in the Gateway District] unless there is a finding of school adequacy issued by the school district." Policy FG 3.4. Through 2060, the Amendment allows a total of 23,100 residential units and 4.7 million square feet of nonresidential development, excluding educational facilities and other institutional uses, within the various SDAs. With the exception of the Gateway District, which is in phase one of development, Policy FG 3.10 requires the development and implementation of a program designed to ensure an adequate number of jobs per residential dwelling unit exists in the SDAs. In phase two and subsequent phases, the development order shall require milestones for achieving the jobs-to-housing ratio target. In the event that the jobs-to-housing ratio drops below 0.65, residential development approvals shall be suspended until a remedial plan can be developed and approved as set forth in an accompanying development order. Policy FG 3.10. Prior to the FLP, the site had been subdivided into approximately 1,700 vested lots pursuant to existing exempt subdivision policies in the Volusia Land Development Code. The Original Amendment extinguished the vested exempt subdivisions as of the effective date of Ordinance 2009-34. The Original Amendment requires all lands designated GreenKey to be placed either in a conservation easement or a conservation covenant. A conservation covenant "is similar to an easement" 2010 Hearing, tr. 1077, "except that its term shall run with the land for an initial term of ten years, which shall automatically be renewed every ten years thereafter so long as the maximum densities and intensities established in the Farmton Local Plan Objective 3 shall remain in effect . . . ." Policy FG 2.15. For example, "Density and Intensity" for the WorkPlace District is described in Policy FG 3.5: "The WorkPlace district shall have a minimum density of eight units per acre and a target density of 18 units per acre. The minimum floor area ratio (FAR) for the nonresidential uses shall be 0.3 FAR." Joint Ex. 7, p. 22 of 49. A covenant under the FLP is converted to a perpetual conservation easement as prescribed in Policy FG 2.15: "At such time as the Master Development of Regional Impact equivalent Master Plan as provided in Objective 8 is approved consistent with the densities and intensities as set forth in Objective 3 in effect [when the FLP is adopted] . . ., a perpetual easement shall be recorded within 60 days." Joint Ex. 7, p. 15 of 49. The FLP requires a minimum amount of land to be set aside for conservation purposes as RBOS. Policy FG 2.4, quoted above, requires that a minimum of 25 percent of SDA land be set aside as RBOS. The RBOS lands will be placed in conservation covenants or easements. Policy FG 2.5 b. requires that a Black Bear Management Plan be developed in consultation with the Florida Fish and Wildlife Conservation Commission consistent with the Commission's Black Bear Habitat Management Guidelines and best available science. The Black Bear Management Plan applies to the Southwest Wildlife Corridor, part of which is on the site in Volusia County and part of which is in Brevard County. GreenKey and RBOS are subject to a mandatory conservation management plan ("CMP") to be funded by the landowner or its successors in interest. The CMP is to be developed by the owner through a task force appointed by the county within one year of the recording of the conservation easement. The CMP is to be "incorporated into the conservation covenants and easement and made enforceable." Policy FG 2.11, 2010 Hearing Joint Ex. 7, p. 12 of 49. Under the FLP, protected wetlands within the SDA will be afforded a wider buffer than was required under Plan prior to the FLP. Through the RBOS designation, additional lands will be preserved and protected by what is in essence a secondary buffer. Under Policy FG 3.2, the footprint of SDAs is "designed to shrink." Tr. 1078. The policy provides: "For the purposes of calculating residential density and . . . FAR within the SDA districts, the density and FAR provision provided in the policies of Objective 3 of this Local Plan shall be calculated based on net SDA Buildable Area. Net SDA Buildable Area shall equal the total SDA district reduced by the minimum 25 percent [RBOS] area and by the minimum 40 percent mandatory Civic Space. Civic Space includes streets, stormwater systems, parks, buffers, water, access easements and other public infrastructure. . . ." Joint Ex. 7, p. 19 of 49. Policy FG 1.6c requires the SDAs to contain RBOS "such that when combined with GreenKey lands more than 36,000 acres or 75 percent of the area with the Farmton Local Plan shall be preserved." Joint Ex. 7, p. 8 of 49. Based on the acreage in GreenKey, RBOS, and buffers required by FG Policy 2.19 for SDA boundaries, wetlands, trails and roads, Sharon Collins, a private biological consultant for Miami Corporation and the primary field biologist onsite, estimated that the minimum amount to be protected under the FLP is 39,265 acres, which equals 80 percent of the total acreage subject to the FLP. b. The Remedial Amendments The County Council of Volusia County's Ordinance 2011- 10 (the "2011 Ordinance") which adopts the Remedial Amendments describes their substance in three sections. See 2011 Joint Ex. 10, page 2 of 3. Section I of the 2011 Ordinance consists of text amendments to: "Chapter 1 Future Land Use Element, Farmton Local Plan, Policies FG 2.4, FG 2.56, FG 2.18, FG 4.14, FG 4.15, FG 4.18, FG 4.20, FG 4.21, FG 5.7, FG 5.8, FG 5.16, and FG 8.1 . . . ." Id. The language of the text amendments referred to in Section I is contained in Exhibit A to the 2011 Ordinance. Sections II and III of the 2011 Ordinance refer to amendments to maps and figures. In Section II, the "Farmton Local Plan-Future Land Use Map" is amended "to include new land use of Mandatory Resource Based Open Space and by expanding the Southwest Wildlife Corridor to include additional lands." Id. Section III adds the "Farmton Local Plan Spine Transportation Network" to the Comprehensive Plan "as a new Figure 2-10 to the transportation map series." Id. The lands under the new land use of Mandatory Resource Based Open Space ("MRBOS") count toward the calculation of the requirement that at least 25 percent of the SDAs taken as a whole be RBOS. The location of all of the RBOS lands have not been determined. They are not shown, therefore, on the Future Land Use Map ("FLUM") series. The revised FLUM, however, delineates where the MRBOS lands are located. The MRBOS will be subject to a Black Bear Management Plan. Policy FG 2.5b sets forth that it is to be developed in consultation with the FFWCC consistent with its Black Bear Habitat Management Guidelines and best available science. The Parties Petitioners Petitioner Barbara Herrin is a resident and owner of real property in Volusia County. She submitted comments regarding the Original Amendment during the time period between the transmittal hearing and the adoption hearing. She submitted comments about the Remedial Amendment at the adoption hearing. ECARD, one of two Petitioners in Case No. 10-2419 (with Ms. Herrin), is a Florida not-for-profit corporation with a membership of approximately 60 members, of which at least 50 are residents of Volusia County. ECARD submitted comments about the Original Amendment during the period of time between the transmittal and final adoption hearings for Ordinance 2009-34. It provided oral comments through counsel at the adoption hearing for Ordinance 2011-10. Sierra Club, one of the two Petitioners in Case No. 11-2527, is a California not-for-profit corporation registered in Florida with approximately 90,000-100,000 members. It has unincorporated state and local chapters. The Florida Chapter has approximately 29,000-30,000 members and the local Volusia County Chapter has approximately 820 members. Three letters containing comments about the Remedial Amendment were submitted to the Volusia County Council by the "Volusia/Flagler Group of Sierra Club and the Northeast Florida Group of Sierra Club," tr. 27, and by the Sierra Club Florida at the public hearing on the Remedial Amendment held in April 2011. All three letters were presented on behalf of Sierra Club. In addition, "[t]he Sierra Club Florida presented comments [at] the same public hearing." Tr. 28. Sierra Club does not own land in Volusia County. It does not own or operate a business in Volusia County. "The Volusia/Flagler Group has [its] own bank account." Tr. 39. Sierra Club has general meetings "in the area" id., to which the public is invited. The Club conducts outings to parks and natural areas "in the area" id., and members appear in public hearings where they speak. Members engage in letter-writing and "various other civic activities." Id. b. Respondents Volusia County (the "County"), a political subdivision of the State, adopted the FLP. Miami Corporation is a Delaware corporation registered in the State of Florida. It is the owner of the property that is the subject of the FLP and was the applicant for the text and map amendments that make up the FLP. Through its representatives, Miami Corporation submitted comments to the County about the Original Amendment during the period of time beginning with its application and through the transmittal hearing and the adoption hearing. It submitted comments to the County about the Remedial Amendment at the adoption hearing. Volusia Growth Management Commission ("VGMC") is a dependent special district of the County created pursuant to Volusia County Charter Section 202.3. Its duties include the review of amendments to local comprehensive plans. VGMC submitted comments to the County about the Original Amendment during the period of time between the transmittal hearing and the adoption hearing. It submitted comments to the County about the Remedial Amendment at the adoption hearing. Suitability The Community Planning Act defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." § 163.3164(45), Fla. Stat. "Compatibility" is defined 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. Future land use map amendments are required to be based upon several analyses. One of them is "[a]n 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." § 163.3177(6)(a)8.b., Fla. Stat. The future land use plan element is required to include criteria to be used to ensure the protection of natural and historic resources and to provide for the compatibility of adjacent land uses. See § 163.3177(6)(a)3.f. and g., Fla. Stat. Suitability: Petitioners' Evidence Mr. Pelham, Secretary of the Department at the time the Original Amendment was found by the Department to be not in compliance, testified at the 2011 Hearing that the site of the FLP is not suitable for development of the magnitude and nature allowed by the FLP. Consistent with the definition of suitability, the testimony of Mr. Pelham addressed both land and water. Commencing with water, he described the property as "extremely wet [and] dominated by an extensive system of sloughs, marshes, creeks, [and] swamps . . . ." 2011 Hearing, tr. 249. The property is an important state and regional resource that contains a variety of important wildlife habitats. Much of the property and substantial parts of the SDAs are in the 100-year flood plain. The property is extremely significant to the area's watershed as an area of recharge and a "high aquifer vulnerability area." 2011 Hearing, tr. 249. Mr. Pelham drew support for his opinion on suitability from the Comprehensive Plan. The County finds in the Plan that the lands subject to the FLP consist of "large, relatively uninterrupted expanses of rich natural resource areas." Tr. 250. The County gave the lands the NRMA designation precisely because they should "be protected and maintained because they serve a variety of functions, water-related, habitat area, a source of water, the open space and rural character, . . . [all] very important to Volusia County " Id. Mr. McDaniel testified as to the official position of the Department in 2010: that the property is not suitable for the FLP. Mr. Pelham's testimony in the 2011 hearing echoes and amplifies Mr. McDaniel's testimony. Dr. Smith testified in both the 2010 Hearing and the 2011 Hearing that development at the scale and intensity of the FLP is not suitable for the site for the same reasons given by Mr. Pelham and Mr. McDaniel. Other Analysis of the Character of the Land The FLP is based on an ecological evaluation that uses GIS-based decision support models and is supported by field work of biologist Sharon Collins. The ecological evaluation was reviewed by scientists from state agencies, universities, and conservation organizations. Ms. Collins provided 15 years' worth of data collection and field work on the site. Her first field assessment of the entire site took place between 1995 and 1998, and included wetlands delineation, evaluations of vegetative communities, habitats, historic natural conditions, hydrology, and listed species. Ms. Collins began remapping and reevaluating toward an ecological evaluation in 2005. The efforts led to the issuance of a report prepared for Miami Corporation and submitted in November 2008. The report was revised in July 2009. It is entitled, "GreenKey Project, Ecological Evaluation Assessment Methods" (the "EEAM Report"). See 2011 Hearing, Joint Ex. 5, Tab 10. Section 1.3 of the EEAM Report, entitled "Resource Identification," describes Ms. Collins' collection of data she used to identify habitat on the site. Among the data sources are the "'Guide to the Natural Communities of Florida' (FNAI, 1990)," id. at 3, and the "Florida Land Use, Cover and Forms Classification System (FLUCFCS) produced by the Florida Department of Transportation." Id. Other data used in support of the EEAM Report include soils surveys, historic aerial photographs, the U.S. Fish and Wildlife ("USFWS") and Florida Fish and Wildlife listed species databases, a SJRWMD GIS FLUCCS map and an "exhaustive list" which Ms. Collins detailed at hearing. See 2011 Hearing tr. 1314. After evaluation of the data, Ms. Collins conducted "ground-truthing" or work in the field. Armed with the FLUCCS Map and the infrared aerials, she "went out in the field and did a comprehensive field analysis . . . and ground-truthed what [she] saw in the field with the [data] . . . ." 2010 Hearing tr. 1309. In order to evaluate and rank the various habitats on site, Ms. Collins designed a methodology using seven metrics that target the protection of regionally significant landscapes. She then assigned "ecological value ratings" and groupings of the habitats based on value as described in Section 1.5 of the EEAM Report: The habitat values ranged from a score of 7 to 1, as shown below from highest to lowest value: Crane Swamp and Spruce Creek Swamp (A & B) Buck Lake and Buck Lake Marsh (C) Cow and Deep Creek (D) Large Sloughs--forested and herbaceous E & F) Scrub Uplands (H) Smaller Wetlands--forested and herbaceous (J & K) Salt March (G) Oak and Hardwood Hammocks (I) Natural Pine Flatwoods (L) Harvested Wetlands (O) Hydric Pine Plantation (M) Pine Plantation (N) To provide a simple yet comprehensively applicable natural resource rating that applies and transfers value to the Farmton landscape, the habitats were further reduced to four groups of comparable ecological value and function. Therefore, Habitats A-D were grouped as one, Habitats E&F another, Habitats G-L as one, and the silvicultural habitats--Habitats M-O--as the fourth group. * * * The habitat types with natural resource rating scores around 7.0 (6.93 to 7.0) include Crane/Spruce Creek Swamps, Buck Lake and Marshes, and Cow and Deep Creeks. They are classified as "Regionally Significant Conservation Habitat Areas." They are regionally situated, extending beyond the boundaries of Farmton. The habitat types with natural resource rating values of around 6.0 include the larger sloughs and swamps. They are classified a s "Significant Conservation Habitat Areas." They are generally greater than 100 acres in size, make up a significant portion of the Farmton landscape, provide an interconnected network of wetlands across the property, but remain mostly onsite. The habitat types with natural resource rating values that are midrange around 3 (2.7-3.7) include the scrub uplands, oak and hardwood forests, salt marshes, natural pine flatwoods, and the smaller swamps and sloughs that have been generally embedded within pine plantations onsite. They are classified as "Conservation Habitat Areas." The fourth habitat types are with natural resource rating values of less than 3, with a range from 21.4 to 1.0, include the silvicultural habitats of the hydric and upland plantations as well as the harvested wetlands. They are classified as "Silvicultural Habitat Areas." These habitats are located onsite and are managed for timber, with varying degrees of tree ages, tree densities and site preparation stages, and/or harvesting disturbances. Joint Ex. 5, Tab 10 at 7-8. The EEAM's rankings were used as a basis for the Farmton Plan's design. The most significant natural resources and environmentally sensitive lands according to the EEAM rankings were designated GreenKey to be subject to permanent conservation. Areas which were disturbed or the least environmentally sensitive lands were deemed more suitable for future development and designated as SDA. The FFWCC used its own data to review the Farmton Local Plan. It was the first comprehensive plan amendment (or project) reviewed under the Critical Lands and Waters Identification Project ("CLIP"). In the opinion of Dr. Walsh, a biological administrator with the FFWCC who supervises FFWCC land use consultations with external entities such as local governments and private land owners, the Farmton Local Plan is based on the best available science. In Dr. Walsh's opinion, the FLP provides for the conservation of wildlife and wildlife habitat and conserves and appropriately plans for protection of endangered and threatened wildlife. Land Use Protections The environmental evaluations are reflected in the FLP policies that require at least 67 percent of the site be designated as GreenKey and 75 percent or at least 36,000 acres of the site be preserved as GreenKey and RBOS. See Policies FG 1.3 and 1.6c, 2010 Hearing, Joint Ex. 7 at pages 7 and 8. Furthermore, Policy FG 2.6 states: As Sustainable Development Area districts are planned for future development, they shall employ Greenprinting decision support models to identify wetlands, flood plains, mitigation areas, vegetative buffers, specialized habitat for flora and fauna, and under-represented natural communities, water resources development areas and trails. Joint Ex. 7, page 11 of 49. The FLP provides additional conservation measures for the most environmentally significant areas. Policy FG 2.5 establishes the Southwest Wildlife Corridor. Policy FG 2.5a establishes the Deep Creek Conservation Area with special levels of protection. The Remedial Amendment creates MRBOS lands and designates them on the Future Land Use Map. The result is that 33,665 acres of the site will be placed into conservation. With RBOS, wetland protections, and associated buffers, 80 percent of the site or 39,265 acres ultimately will be conserved. All lands placed in GreenKey, MRBOS, and RBOS are subject to the CMP approved by the Volusia County Council and ultimately subject to a conservation easement that perpetually protects the lands. See Policy FG 2.10, Joint Ex. 7. Policy FG 8.1 provides: No building permit shall be issued for new development within the SDA districts within five (5) years of the effective date of the Farmton Local Plan. No development order for new construction shall be issued prior to the approval by the county council of the Conservation Management Plan (CMP) described in policies FG 2.10 and 2.11 and the recording of a perpetual conservation easement over all Green Key lands as set forth in policy FG 2.15 with the specific exception of essential public utilities or communication structures. Joint Ex. 10, page 7 of 7. The Council has appointed a CMP Task Force to develop the plan. Natural Resource Management Area The NRMA overlay covers the entire site. It does not prohibit development but subjects it to scrutiny by the County. The NRMA overlay has not successfully prevented habitat fragmentation. Prevention of habitat fragmentation is a basis for the "layered additional protections," 2010 Hearing tr. 1167, of the FLP, including the Environmental Core Overlay Areas ("ECO"). Areas that must be protected are covered by the ECO, which receive the greatest protection in the Current Plan. The ECO covers approximately 11,000 acres of the site. The FLP adds 20,900 acres to the ECO. Without the FLP, and in spite of the NRMA and ECO overlays, existing Current Plan policies allow the Farmton property to be subdivided into approximately 1,700 lots. Significant habitat fragmentation is a potential result. The FR portion of the site, moreover, may develop in a clustered pattern at a density of one unit per 5 acres, as opposed to one unit per 20 acres under Future Land Use Policy 1.2.3.2. There are ranchette subdivisions in the site's vicinity and ranchettes are a feasible development option for the site. The FLP provides stronger natural resource protection than existing policies for the resources it protects. Its more restrictive standards eliminate the potential for development of the most sensitive areas and eliminate vesting of previously vested lots. Policy FG2.1 provides that the FLP is supplemental to NRMA and ECO. If the FLP conflicts with NRMA, the more specific or restrictive policies apply. The FLP is consistent with the current Plan provisions for the NRMA, Environmental Systems Corridor, and ECO. The Florida Black Bear and Regional Wildlife Corridor The Florida Black Bear is a State-designated Threatened Species. See chapter 68A-27. The purpose of the FFWCC in promulgating rules relating to endangered or threatened species is stated at the outset of chapter 68A-27: The purpose . . . is to conserve or improve the status of endangered and threatened species in Florida to effectively reduce the risk of extinction through the use of a science-informed process that is objective and quantifiable, that accurately identifies endangered and threatened species that are in need of special actions to prevent further imperilment, that identifies a framework for developing management strategies and interventions to reduce threats causing imperilment, and that will prevent species from being threatened to such an extent that they become regulated and managed under the federal Endangered Species Act of 1973, as amended, 16 U.S.C. §1531 et seq. Fla. Admin. Code R. 68A-27.001(1). In June 2010, the FFWCC accepted recommendations of bear experts that it find there is "not a high risk of extinction," 2011 Hearing tr. 626, for the Florida Black Bear. Acceptance of the recommendation was accompanied by the commencement of the adoption of a management plan for the Black Bear. Upon the adoption of such a plan, the FFWCC is expected to de-list the Florida Black Bear from the threatened and endangered species lists. See id. Policy FG 2.5b requires the CMP within the Southwest Wildlife Corridor to address habitat requirements for the Florida Black Bear in consultation with FFWCC. The FLP provides for the protection of regional wildlife corridors. Objective FG 2 of the FLP reads: "GreenKey and other Resource Based Open Space shall be managed for natural resource protection and preservation of interconnected regional wildlife corridors, and conserved in perpetuity." Joint Ex. 5, Tab 3 at 8. Nearly the entire Farmton Site constitutes Bear Potential Habitat. See DCA Ex. 4F. The entire site has been identified as Secondary Bear Range, see DCA Ex. 4G, and is roughly within 10 miles of an area of Primary Bear Range to its north and 20 miles of the same area of Primary Bear Range to its west. The area of Secondary Bear Range that includes the Farmton Site also includes urban areas such as the cities of Deland, Orange City, Deltona, and Sanford. Several hundred thousand people live in the secondary range that includes the Farmton site. The area of Secondary Bear Range in which the Farmton Site is located is habitat for the Ocala and St. Johns subpopulations of the Black Bear. While Dr. Hoctor considers the Ocala and St. Johns subpopulations to be separate, David Telesco, the Black Bear Management Program Coordinator for the FFWCC, described them as one subpopulation of bears that range over the Farmton Site, the Secondary Bear Range in which it is located, and nearby Primary Bear Range: This is our largest population of bears, estimated as potentially 1,200 animals. It's also the most densely populated, which means it's the highest quality habitat we have in the state. And our habitat models that we have are showing it as a stable subpopulation. 2011 Hearing, Tr. 625. Bear ranges do not coincide perfectly with bear habitat. Bears may range in areas that are not habitat. Just as in the case of ranges, bear habitats are classified as primary and secondary. Primary and Secondary Bear Habitats are both present on the Farmton Site. In Dr. Hoctor's opinion, to view Secondary Bear Habitat composed of pine plantation (as is the secondary habitat on the Farmton Site), to be more suitable for development would not be accurate or scientifically defensible. "[P]ine plantations are important habitat in and of themselves, plus they're important for . . . connecting all of [the] forested wetlands on [the Farmton] site . . . ." Tr. 475. An array of expert testimony was presented at the 2010 Hearing by Petitioners, the County, and Miami Corporation as to whether the FLP provided adequate wildlife corridors and protection of bear habitat. Dr. Hoctor testified that the Farmton Site is "particularly significant for potentially supporting . . . functional connectivity between the Ocala and Saint Johns [Black Bear] [sub]populations to those that are further south, the Highlands/Glades [sub]populations and Big Cypress [sub]population." Tr. 463. In the past, Florida's Black Bear population was integrated. There was "one [Black Bear] population . . . that occurred throughout the State of Florida." Tr. 465. The several Black Bear populations identified in the state now, however, are genetically distinct due to isolation caused by habitat loss, hunting and poaching. Re-integration will promote genetically healthy populations. Genetically healthy populations are more likely to adapt to future environmental changes and maintenance of connectivity between the subpopulations will promote a genetically healthy population of the Black Bear. A primary method of promoting a genetically healthy population is maintenance or restoration of functional corridors that connect sub-populations of the Black Bear in the state. Functional corridors are necessary to restore a single Black Bear population in the state or a "metapopulation . . . a set of subpopulations that are interacting through disbursal [sic] of individuals between . . . [the] various populations." Tr. 468. Dr. Hoctor opined, "If we're going to have a functional corridor between the populations to the south [south of northern Brevard and southern Volusia Counties] and to the Saint Johns and Ocala populations [to the north], it's more than likely going to have to occur through the Farmton Property." Tr. 467. It is Dr. Hoctor's opinion that functional corridors through the Farmton Property are particularly important to maintenance of the St. Johns subpopulation which consists of only 96 to 170 bears when a viable sub-population of bears is at least 200. Dr. Hoctor regards the wildlife corridors provided by the FLP, both for the Black Bear and other species, to be insufficient to offer adequate protection. They are not wide enough nor do they encompass enough acreage, in his opinion, to provide an adequate home range for a female Black Bear. The FLP allows too many significant road crossings. With regard to the Black Bear and other species, moreover, the FLP, in his opinion, does not sufficiently counter negative edge effects, that is, "negative impacts on natural areas or protected lands . . . from adjacent intensive land uses." Tr. 483. Consistent with action taken in June 2010, the Commission is in the process of adopting a Black Bear Management Plan for Florida. On May 19, 2010, the FFWCC issued a "Draft Black Bear Management Plan for Florida" (the "Draft Plan") which has been up-dated but remains in draft form. The Draft Plan opens with an executive summary, the first paragraph of which follows: The long-term future of Black Bears in Florida currently is uncertain because of their large spatial requirements, the fragmented nature of remaining populations, and increasing human development and activity leading to conflicts. A statewide management plan is needed to conserve this valued wildlife species. * * * This management plan is not intended to set all policies and operations for bears, rather it is intended to form a platform from which policies can be updated and operations can be based. While this plan will set clear guidance and structure for bear conservation in Florida, it will not be a panacea or silver bullet for current issues. In fact, this plan may create more work as key challenges are addressed in implementation. VC/MC Ex. 49. The Draft Plan does not contain any reference to Dr. Hoctor's opinion that the Farmton Site is a critical linkage between the Ocala and St. John's subpopulations and the subpopulations of Black Bear to the south. Randy Kautz, a supervisor of the nongame habitat protection planning section at the FFWCC and its predecessor agency for 20 years, testified that he knew of no agency recommendation to establish a corridor for Black Bears between the Ocala/St. Johns subpopulations and subpopulations of Black Bear to the south. Furthermore, he thought it very unlikely that the subpopulations would become connected if an adequate Black Bear corridor existed on the Farmton Site. He gave several reasons that included man-made disruptions between the subpopulations (such as pasture lands) and natural barriers posed by the St. Johns River, Lake Harney and marshes to the southwest of the Farmton Site over which Black Bears are not likely to traverse. Under the Original Amendment, the Southwest Wildlife Corridor ensures a wildlife corridor approximately one mile in width in the areas closest to the St. Johns River because the science indicated that was the primary regional wildlife corridor for the region. Within the Southwest Wildlife Corridor is the Deep Creek Conservation Area. It is the site's most significant area for regional movement of wildlife and will contribute to a corridor spanning as wide as three miles near the St. Johns River. The Remedial Amendment increases the Southwest Wildlife Corridor to establish a minimum of a one-mile buffer outside the areas planned for development. There are no hard and fast rules for what constitutes a functional wildlife corridor. The Cow Creek Corridor, Southwest Wildlife Corridor, and the corridor along the Volusia-Brevard border exceed a 10:1 ratio of length to width, a favorable ratio for wildlife, and each is a minimum of 900 meters in width. The Southwest Wildlife Corridor, which is 11.81 miles in length, was expanded by the Remedial Amendments to a minimum width of one mile, an average width of 2.26 miles, and a maximum width of 5.3 miles, and has a reduced length-to-width ratio of 5.2:1. The Cow Creek Corridor, which is not a regional wildlife corridor, was increased to 3.86 miles in length, a maximum width of 1.07 miles, a minimum width of 0.63 of a mile, and has a length-to- width ratio of 4.73:1. Respondents provided expert opinions that the FLP's provision of wildlife corridors is consistent with regional long range conservation planning and fits into an ecosystem pattern with wildlife corridors, linkages, and a variety of habitats. Respondents also presented expert opinion that FLP's proposed conservation areas are consistent with Florida wildlife conservation strategy. Other Listed Species and Wildlife Habitat Petitioners allege that the amendment fails to protect native vegetative communities, wildlife, wildlife habitat, and threatened and endangered species. The SOI lists several federally listed species within USFWS consultation areas for the Crested Caracara, the Florida Scrub Jay, and the Everglades Snail Kite. A consultation area includes the bird's dispersal range. Ms. Collins has never seen one of these three bird species on the property during her 15 years onsite, which she attributes to the site's inappropriate habitat for the species. Dr. Smith and Dr. Walsh also testified that it was highly unlikely to find these species on site. If a project is located within a listed species consultation area, the developer is required to meet with the USFWS to address the issue further during the permit process. Other listed species are found or are likely to be found on the site. However, there will be adequate habitat and conservation areas to support them. Gopher tortoises, for example, found within an SDA will be protected by existing County policies. The FLP provides a higher level of protection for listed species and other wildlife than if the site were developed under the current land uses. No development may take place, moreover, until the CMP is approved and incorporated in the development order. Policy FG 2.11 lists numerous minimum criteria for the CMP, including the identification of USFWS consultation areas and known onsite threatened and endangered plants and animals, the protection of habitats of species that are listed, imperiled, and otherwise in need of special protection, and coordination with management plans of adjacent conservation areas. Farmton contains native vegetative communities including mesic flatwoods, scrub flatwoods, and pine flatwoods. These native vegetative communities are predominantly present in the GreenKey conservation areas and will be protected. FAVA and Site-specific Data A Florida Aquifer Vulnerability Assessment Map (the FAVA Floridan Map) for the Floridan Aquifer of the Farmton Site depicts three levels of vulnerability: "More Vulnerable," "Vulnerable," and "Less Vulnerable." See DCA Ex. 4D. Most of the Farmton Site is in the area depicted by the FAVA Floridan Map as "More Vulnerable." All of the SDAs allowed by the FLP to be developed as Gateway, Town Center and Work Place subareas, for example, are depicted as "More Vulnerable." Most of the SDAs allowed by the FLP to be developed as Village subareas are depicted as "More Vulnerable" and the remainder is depicted as "Vulnerable." The FAVA Floridan Map depicts none of the SDAs as "Less Vulnerable." See DCA Ex. 4-D. The FAVA maps supported the Department's determination that the Original Amendment was not in compliance. FAVA maps are used as data by the Department because they depict areas where the aquifer is susceptible to contamination from surface contaminants. In that they "cover broad swaths of the State of Florida, [however] . . . they are not meant to supersede site-specific data." Tr. 1942. Dr. Seereeram, on behalf of Miami Corporation, gathered data specific to the Farmton site. The data included "detailed soil profiles every six inches vertically . . . [to] depths . . . over 100 feet . . . ." Tr. 1941. His site- specific data showed that there are confining layers between the surficial aquifer and the Floridan aquifer that prevent "rapid movement of groundwater from [the surficial] aquifer into the underlying Florida[n] aquifer." Tr. 1941. The site-specific data led Dr. Seereeram to conclude that the Department's concern for contamination potential to the Floridan Aquifer based on the FAVA is misplaced. In light of his site-specific data, Dr. Seereeram's opinion is that the development of the Farmton property will not "pose a threat to the aquifer." Tr. 1942. Dr. Seereeram's opinion, based on the question from counsel, is expressed in terms of "the aquifer." See id. Based on the FAVA maps and the entirely to his testimony with regard to site-specific data, the opinion does not apply to the Surficial Aquifer but only the Floridan Aquifer. The development of the Farmton Site in Volusia County does not pose a threat to contaminate the Floridan Aquifer. Floodplains, Wetlands, and Soil The Farmton Site in Volusia County is predominantly floodplains and wetlands. Petitioners allege that the land uses proposed by the FLP are incompatible with wetland protection and conservation. The Comprehensive Plan's map series depicts a large portion of the County as being located within the 100-year floodplain. A significant part of the SDAs are within the 100- year floodplain. There is no state or federal prohibition of development in a floodplain. The Comprehensive Plan and the FLP describe the floodplain. The Comprehensive Plan does not prohibit development in the 100-year floodplain. The FLP, however, "advises development away from the floodplain, specifically as it relates to schools in the Farmton Local Plan." Tr. 1095-6. Development in floodplains has been allowed by the County subject to elevation of construction to be flood-free upon completion and mitigation via on-site flood storage. The Plan's floodplain policies would apply to development under the FLP and the FLP has policies which relate to floodplains. Policy FG 2.21 in the FLP, for example, requires the following: Floodplains. Impact to the 100-year floodplain shall be minimized. Any impacts must be fully mitigated by providing compensatory storage on-site. Joint Ex. 7, Tab D-3 at 17 of 46. As a result of changes made by the Remedial Amendment, the majority of developable lands within the SDAs are uplands not wetlands. Based on a review of aerial photography, soil surveys, and other data, combined with field work, Ms. Collins concluded that approximately 29 percent of the total SDA acreage can be identified generally as wetlands. The dominant soils in the SDAs are Smyrna fine sand, Immokalee fine sand, Eau Gallie fine sand, and Myakka fine sand. Myakka soil, the soil of the flatwoods, is the most common soil in the state and has been designated as the "state soil." Tr. 1358. There are similar soils on adjacent properties. They are soils "that have had development occur on them." Tr. 1097. All of the soils in the SDAs are suitable for development. Wetlands delineation is not required at the comprehensive plan stage. It will be required prior to approval of development plans or issuance of a development order. The buildable areas within the SDAs will be determined with input from environmental regulation agencies prior to development order approvals. Without the FLP, preserved wetlands would be protected by a fifty-foot buffer. In contrast, Policy FG 2.19d requires all preserved wetland areas within an SDA to be protected by a buffer that averages 75 feet in width and is no less than 50 feet in width. See Joint Ex. 7, Tab D-2, page 17 of 49. On GreenKey land, the policy provides enhanced wetland buffer widths of an average of 100 feet with a minimum buffer of 75 feet. See id. "If different buffer widths are required by a permitting agency, the wider buffer shall apply." Id. Policy FG 2.20 states that activities within the FLP "shall be planned to avoid adverse impacts to wetlands and the required buffers as described in FG 2.19(d)." Id. No less than 25 percent of each SDA as a whole must be set aside as RBOS, which may include wetlands. See Policies FG2.4 in Joint Ex. 10, Exhibit A, page 1 of 7; and 3.2 in Joint Ex. 7, Tab D-2. Per Policy FG 2.8, those open space areas will be determined in consultation with regulatory agencies, Volusia Forever and entities that are parties to the conservation easements required by Policy FG 2.12. See Joint Ex. 7, Tab D-2. Policy FG 2.6 requires that, when establishing RBOS, priority "be given to lands on the perimeter of the SDA, which are contiguous to GreenKey lands." Id. at page 11 of 49. In accordance with Policies FG 2.10 and 2.11, those RBOS areas will be added to the conservation easement and be incorporated in the CMP. Policy FG 2.11h requires the CMP to contain "[p]rovisions for significant water resources (such as streams, creeks, natural drainage ways, floodplains, and wetlands) protection, enhancement, and restoration and planned hydrological restoration." Joint Ex. 7, Tab 2-D, page 13 of 49. Wetlands Mitigation Bank In 2000, after a two-year permitting process, approximately 16,337 acres of the Volusia Farmton site was approved for use as a mitigation bank. Of that approved acreage, only 7,030 acres have been placed under a conservation easement and are required to be maintained in perpetuity for conservation purposes. Those 7,030 acres will continue to be preserved under the FLP. The portions of the mitigation bank that have not been placed under conservation easement may not remain within the mitigation bank and may be withdrawn. At the time of the final hearing, an application filed by Miami Corporation was pending before the SJRWMD to modify the mitigation bank permit to withdraw approximately 1,100 acres from areas within the mitigation bank that have not been placed in conservation easement. The lands proposed for removal from the permit are located within the SDA areas. The remaining portions of the mitigation bank would be protected from SDA uses through the 200 foot SDA perimeter buffer and wetland buffer requirements in Policy FG 2.19. Conservation Management Plans Within one year of the effective date of the FLP, the Deep Creek Conservation Area and the permitted Mitigation Bank lands will be placed into permanent conservation easement. Within two years, a CMP will be developed and enforced through the conservation easements. Remaining lands will be protected through a conservation covenant as well as the CMP. The covenant will have a ten-year term and automatically renew until the initial development plan is approved. Upon approval of a development plan consistent with the densities and intensities of the comprehensive plan, those lands will also be converted to a permanent conservation easement. The Remedial Amendment requires that no development can take place until the CMP plan is established and perpetual easements are recorded. Urban Sprawl The Thirteen Statutory Indicators Section 163.3177(6)(a)9 mandates that an amendment to the future land use element discourage urban sprawl. Section 163.3177(6)(a)9.a provides 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl . . . ." Evaluation of the indicators "consists of analysis of the plan or plan amendment within the context of features and characteristics unique to each locality " See section 163.3177(6)(a)9.a. The 13 indicators are listed in the statute under roman numerals "I" through "XIII." I. The first indicator is promoting, allowing or designating "for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses." The current Plan (without the FLP) allows the site to develop as single residential uses at low densities. The pre- FLP densities allowed on the Farmton Site are one unit per 10 acres, one unit per 20 acres, or one unit per 25 acres depending on the three designations on the site: Agricultural Resource, Forestry Resource or Environmental Systems Corridor. Mixed use is not required, nor is clustering required. The result is a "ranchette pattern of land use." 2010 Hearing, Tr. 1817. Mr. Ivey at the 2010 Hearing described ranchette- style development and the use to which a ranchette would typically be put. He depicted a development pattern dominated by owners of property who want to be in the country to enjoy a country lifestyle. After purchase of the property, the owner typically builds a house, frequently clears the land, constructs a number of outbuildings and grows grass to support cows or goats. In Mr. Ivey's opinion, "if your goal is to protect the environment, [the ranchette pattern of development] does not do it." Tr. 1720. Mr. Pelham opined that, despite the current Plan's allowance of a ranchette style of development on the Farmton Site, the indicator is triggered because the FLP disperses so much low density development over the landscape and in development nodes. Such a pattern, in his opinion, "does result in a significant amount of low density sprawl, compounded by the fact that it's fragmented and distributed out rather than being in a very compact fashion." Tr. 280. In comparison to the ranchette style of development, however, the FLP calls for a mixed-use development much more concentrated than a ranchette type of development and, on balance, more protective of natural resources. The current land uses allow nonresidential development at a floor area ratio of 0.10 but non-residential uses are not required to be included so as to ensure a mix of uses. The current land use could result in an inefficient land use pattern of more than 4,600 residential units, each of which would be entitled to use a septic tank and potable water well. Conservation Element Policy 12.2.2.5 requires either clustering or open space for developments that contain environmentally sensitive lands or critical habitats but includes no minimum standards. The FLP removes residential entitlements from the GreenKey area and clusters residential development into the SDA areas. Since development is not allowed in GreenKey, it is reasonable to evaluate the FLP's density in terms of "net density" rather than "gross density." It is also appropriate to evaluate density based on the various SDAs. Each Village has a minimum density of 3 units per acre and a target density of 10 units per acre. The Town Center has a minimum density of 8 units per acre, a target density of 15 units per acre, and a center town square required density of 24 units per acre. Work Place has a minimum density of 8 units per and a target density of 18 units per acre. Finally, Gateway has a minimum density of 4 units per acre and a target density of 12 units per acre. The weighted average of the minimum densities throughout the SDAs is 3.3 units per acre and their weighted target density is 6.8 units per acre. This density is relatively high compared with developed portions of cities in Volusia County. The City of DeBary has a weighted average density of less than 2 units per acre. The City of Deltona has a weighted average density of 2.68 units per acre, and the City of Edgewater has a weighted average density of 4.89 units per acre. The weighted average maximum density for the residential land use categories in the unincorporated County is only 2.36 units per acre. The FLP also includes requirements for a mix of uses in the Gateway, Town Center, and Village districts. The jobs- to-housing ratio in Policy FG 3.10 also will ensure that development will contain a mix of uses. II. The second indicator is promoting, allowing or designating "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development." Mr. Pelham found the indicator to be triggered because it designates over 12,000 acres of urban development in a rural area at a significant distance from existing urban development and leapfrogs over undeveloped urban-designated lands. Mr. Pelham holds the opinion despite the match of the FLP by the development that will be allowed under the Brevard County Comprehensive Plan on the Brevard County Farmton Property immediately adjacent to the Farmton Site in Volusia County. In addition to abutting the Brevard County Farmton Property, the Farmton Site abuts the City of Edgewater, and the approved Restoration DRI and Reflections PUD. There are undeveloped publicly managed lands and conservation easements in the vicinity of the Site. In contrast to Mr. Pelham, Mr. Metcalf does not think the indicator is triggered. He sees the FLP with its requirement of a greenbelt designated as GreenKey and RBOS and MRBOS to contain the essential components of an innovative development type known as "urban village." An urban village has the following characteristics: an area with urban density, a mix of uses including all major land use types in a self-contained, clustered, compact form that is transit-supportive and has a grid or modified grid street network and a walkable, unified design, with a defined edge separating urban rural uses. The FLP contains all the components required it to be considered to contain an "urban village" development pattern. III. Mr. Pelham concluded that the third indicator is triggered by the FLP's "fragmented development pattern . . . [with] ribbon strips of nodes, five or six of them, . . . in an isolated area." Tr. 281. In contrast, Mr. Metcalf opined that the FLP's "node" development pattern does not trigger the indicator. The nodes of development are not in a radial, strip or ribbon pattern. They do not, moreover, emanate from urban development. IV. Mr. Pelham's view that the FLP triggers the Indicator IV focuses on the 12,000 acres of NRMA land, a substantial portion of which will be converted to urban-type development. In contrast, witnesses for Miami Corporation cast the FLP as providing for the conversion of rural lands in a way that protects and conserves a range of natural resources, including wetlands and upland habitats. The indicator, moreover, does not require protection or conservation through preservation. Therefore, it is not triggered in all cases in which there is some use of the resource. GreenKey and MRBOS keep development out of the most environmentally sensitive wetlands and confines development to the SDAs so that wetland encroachment occurs only in wetlands of lower value than others in the area. Designation of areas as RBOS will also conserve natural resources. V. Indicator V refers to failure to adequately protect "adjacent agricultural areas and activities." Petitioners criticize FLP for failure to protect agricultural and forestry areas and activities within the SDAs. The Department of Community Affairs, however, has never applied the indicator to lands internal to an amendment. Policy FG 2.2 allows agricultural activities to continue in the GreenKey using Best Management Practices. Existing agricultural areas adjacent to the Farmton Site are mainly to the west. The FLP includes provision to adequately protect activities within those areas. Policy FG 2.19, for example, requires a minimum buffer of 200 feet around each SDA. Protection of adjacent areas and activities in the areas means Indicator V is not triggered by the FLP. VI. Mr. Pelham offered the opinion that the FLP fails to maximize use of existing public facilities and services by allowing a large urban development in a rural area that has no public facilities and services and no plan to provide them. Mr. Metcalf testified that the services to be considered would be law enforcement, fire, emergency medical treatment and solid waste. In assessing Indicator VI, Mr. Metcalf began with the assumption that development under the FLP will increase the population in the service district. He opined that the indicator is not triggered because "[t]he higher [the] population in that service district, the higher the maximum usage of that service." Tr. 808. VII. Mr. Pelham believed the FLP fails to maximize use of future public facilities and services because, whether the developer makes significant payment for them or not, the remote location and type of the development will keep it from benefiting from the efficiencies and advantages of scale it would enjoy if it were more proximate to urban development and more compact. Policy FG 3.6d requires the Town Center to house a majority of civic uses, including public safety facilities. The Spine Transportation Network and its related policies provide a network of roads that disperses traffic designed to avoid overloading with local trips. Water service in Gateway will be provided by extension of infrastructure from the Restoration site. "The extension of those lines would be closer than would be many neighborhoods within existing urban areas." Tr. 809. School capacity for the initial 2,287 units will be concentrated in Gateway. The critical mass that can be achieved through the urban village form of development will support onsite facilities needed by schools, law enforcement and fire departments. The location of the facilities will serve development on the Farmton Site and also nearby ranchettes and all of South Volusia County. Mr. Metcalf's opinion is that that the indicator is not triggered by the FLP. VIII. Mr. Pelham's opinion is that Indicator VIII is triggered. "Many studies have shown that allowing urban development far distances from existing urban development drive up the cost of providing infrastructure." 2011 Hearing, tr. 285. Policies FG 7.1 and 5.13 require development within SDAs to provide infrastructure, including onsite roads, and government services that are fiscally neutral. They also require the developer to pay for its share of off-site transportation impacts on a pro rata basis. Construction of the Spine Transportation Network is required by Policy FG 5.7 to be funded solely by the owner/developer. These policies together with the urban village development pattern led Mr. Metcalf to the opinion that the FLP will not disproportionately increase the cost in time, money and energy of providing and maintaining facilities and services. IX. By establishing SDA areas and buffer requirements in Policy FG 2.19 for perimeter boundaries and wetlands, the FLP establishes clear separations between rural and urban areas. X. The FLP would discourage and inhibit the redevelopment of existing neighborhoods and communities, in Mr. Pelham's opinion, because it will compete with all other urban areas for residential and nonresidential growth. Joel Ivey, who has worked on many amendments to the Volusia County Comprehensive Plan, testified that he was not aware of any areas in the County in need of re-development or any infill areas with which the FLP would interfere. The Petitioners did not identify any areas in which the FLP will discourage development opportunities covered by the indicator. XI. Indicator XI is not triggered. The FLP encourages a functional and attractive mix of uses. It requires a mix of residential and nonresidential uses in the SDA districts, a jobs-to-housing ratio, placing lands in conservation easements, walk-ability, compact development, and a hierarchy of street systems to foster connectivity and pedestrian mobility. XII. Indicator XII is not triggered. The FLP promotes accessibility among linked and related land uses with interlinked multimodal roadways and paths, including the Spine Transportation System, walkways and bike paths. XIII. The FLP preserves significant areas of functional open space. It provides for passive recreation open space in RBOS areas. It provides expanses of functional open space areas for wildlife habitat. The Farmton Site, currently private property used primarily for silviculture that can be developed with more than 4,600 homes, under the FLP will place at least 36,000 acres in functional open space in perpetuity. It will conserve the site's most environmentally-sensitive lands and establish a network of wildlife corridors. Development Patterns and Urban Forms Section 163.3177(6)(a)9.b declares that a future land use element or plan amendment "shall be determined" to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that incorporates four or more factors listed in the statute. The development patterns or urban forms are listed by roman numerals, I through VIII. I. The FLP promotes conservation and avoids adverse impacts to the most significant natural resources on site. It does so by placing the most significant natural resources in GreenKey and MRBOS, locating development in the SDAs so as to keep it out of the most ecologically significant areas on the Farmton Site, providing protections to the Southwest Wildlife Corridor, and deeding the Deep Creek Conservation area for permanent preservation. Any development within an SDA will be subject to development controls that first require impacts to wetlands to be avoided. If impacts cannot be avoided, only wetlands of lower ecological significance may be impacted, and the impacts must be mitigated to achieve no net loss in function and value. Policy FG 2.19 includes several buffer requirements. Other natural resource protection mechanisms include Policy FG 2.7 which promotes habitat connectivity and requires RBOS to minimize habitat fragmentation. Policies FG 2.10 and 2.11 require a conservation management plan. Policy FG 2.5 and 2.5b. require a forestry management plan and a bear management plan. II. The FLP promotes the efficient and cost-effective provision or extension of public infrastructure and services based upon findings above. III. The third development pattern is present. The FLP includes several provisions that promote walk-ability and connected communities, including Policies FG 3.1; 3.4g; 3.6e; 3.7a-d, h, and j; 5.1;, 5.3; 5.5; 5.6; and 5.7; and, the Spine Network Map. The SDA district policies provide for compact development and a mix of uses at densities and intensities that support a range of housing options and transit options. The FLP requires park-and-ride lots for bus stops, which supports a form of mass transit, and requires multimodal options, such as sidewalks, bike paths and multi-use paths that accommodate different transportation options such as golf carts and bicycles. Policies FG 3.1e (applicable to all SDA districts), 3.4 (Gateway) and 3.7k (Villages) require housing diversity and choice through a mixture of housing types and price points. IV. The fourth development pattern is present as the FLP promotes water and energy conservation. Policy FG 4.2c requires various conservation measures and water neutrality. The multimodal components and employment centers required by the FLP will reduce vehicles miles and promote energy conservation. V. The fifth development pattern is present if the word "preserve" is interpreted to allow agricultural and silviculture activities to continue, rather than mandate that they continue. Policy FG 2.2 allows agriculture activities to continue, but does not require or guarantee that they will continue in perpetuity. Id. Policies 2.2, 2.5a, 2.11g, 2.12f, 2.23, and 3.13 ensure that agriculture may continue. The timberland soils in GreenKey and MRBOS will be preserved. VI. The sixth development pattern is present. Policies 1.3, 1.7, 2.10, 2.11, 2.15, 2.4, 2.6, 2.8, 2.8, 2.5, and 2.16 preserve open space and natural lands. The conservation easements for GreenKey will preserve open space in natural lands. MRBOS and RBOS will provide open space areas in natural lands. Parks in RBOS will provide public open space and passive recreational areas. The SDA parks also will provide active recreational areas. VII. The seventh development pattern is present. The residential and non-residential allocations are balanced and are comparable to those in other master-planned communities. The jobs-to-housing ratio requirement in Policy FG 3.10 ensures a 1:1 balance at build-out and provides a mechanism to ensure that the balance does not drop below 0.65 during development. Gateway Policy FG 3.4d appropriately targets interstate commerce given its proximity to the I-95 and State Road 442 Interchange. VIII. The eighth development pattern is present. The FLP remediates the ranchette pattern allowed under the current Plan over the site. It also provides an innovative urban village development pattern, as well as transit oriented development. Internal Inconsistency Future Land Use Element Future Land Use Objective 1.1.3 in the Current Plan states: "Volusia County shall limit urban sprawl by directing urban growth to those areas where public facilities and services are available inside designated service areas and within urban areas." Joint Ex. 1, page 29 of 109. Future Land Use Policy 1.1.3.5 in the current Plan provides that: New urban development shall be located inside an urban designated area where a full range of urban services exist or are planned and with direct access to arterials and mass transit routes sufficient to handle existing and future development. Joint Ex. 1, page 30 of 109. Policy 1.1.3.6 provides: Id. Requests for land use map amendments will be reviewed using the urban sprawl indicators contained in Rule 9J-5.006(5)(g). Requests that exhibit a presence of a majority of the indicators shall be concluded as to encourage urban sprawl. Mr. Pelham concluded the FLP was inconsistent with these two policies because the Farmton Site is in a remote, rural area outside of urban areas and away from existing or planned urban services. The basis of the opinion is contradicted by the Farmton amendments to the Brevard County Comprehensive Plan now in effect. While rule 9J-5.006(5)(g) no longer exists, Mr. Pelham testified as to why the FLP constitutes urban sprawl. When evaluating whether a plan amendment is consistent with a provision in the plan, including a policy, the plan should be considered "as a whole." Tr. 222. As Mr. Pelham testified, "a common mistake in interpreting comprehensive plans is that policies are lifted out of context, considered in a vacuum without regard to the plan as a whole . . . ." Id. Mr. Pelham's approach is sanctioned by the Current Plan's provision that governs "Plan Interpretation" found in Chapter 21 of the Current Plan entitled "Administration and Interpretation." In particular, it is consistent with a statement that appears in the Introduction of the Current Plan as one of three guidelines or "statements which represent the underlying assumptions which support the Plan preparation." Joint Ex. 1, Introduction, page 3 of 5. That statement is "Guideline Three: The Comprehensive Plan will be construed as a complete document and no specific goal, objective, policy or recommendation shall be used independently." Joint Ex. 1, Introduction, page 4 of 5. Guideline Three is emphasized by its restatement in a quote from the Current Plan's Introduction in the provision governing "Plan Interpretation." See Joint Ex. 1, Chapter 21, page 2 of 7. The Current Plan does not prohibit urban development activities within NRMA. To the contrary, the Current Plan allows "Low Impact Urban," as defined in Policy 12.2.2.1c on lands within NRMA. See Joint Ex. 1, Chapter 12, page 8 of 16. The FLP directs development to certain areas within NRMA and away from the most environmentally sensitive lands in NRMA. There is a fair argument advanced by Miami Corporation, the County and VGMC that the FLP is coordinated with NRMA, is consistent with its objectives as to the bulk of the site and does not conflict with the Current Plan's Objective 12.2.1: "To provide for the protection of areas determined to be environmentally sensitive, and to direct growth away from such areas." Policy 12.2.1.2 requires the County to promote land use activities compatible with NRMA. The policy discusses the land use categories of ESC, FR and Low Impact Urban, among others. The County's planning and development services director for the County construes the uses under ESC, FR, and Low Urban Impact as not the only land uses allowed within NRMA. The critical determination is whether a land use is NRMA-compatible. Consistent with the Current Plan, Policy FG 2.1 states that the whole site is located within NRMA and the NRMA policies apply if they are more protective or stringent than the FLP's policies. The FLP provides more protection for the most environmentally sensitive areas on the Farmton Site than is provided under NRMA. Examples are the FLP requirement for a wider buffer and a minimum of 75 percent open space. Policy 1.3.1.28 forbids amendment of the FLUM not adopted in conjunction with the required Evaluation and Appraisal Report ("EAR") except under five conditions expressed in the policy. The FLUM amendment by the FLP was not in conjunction with an EAR. The five conditions, all of which must be met, therefore, are: Population projections have been revised, and accepted by the County and FDCA; Justification is provided for the expansion of the urban boundary; Compatibility with the character of the area; Availability of the full range of all urban services, including adequate potable water supply and facilities, to accommodate inclusion in an urban area; and, Documentation is provided that urban expansion will not be in conflict with the intent of the Natural Resource Management Area and Environmental Core Overlay. Joint Ex. 1, Chapter 1, page 41 of 109. Testimony at the 2010 Hearing established that the County's population projections were rejected by DCA because they were not based on a professional methodology. The projections were not accepted by the Department in the interim between the 2010 and 2011 Hearing. Mr. Pelham testified that "[t]he Department has never accepted them." 2011 Hearing, tr. 242. The Department's planning function, including review of comprehensive plan amendments and compliance determinations, was transferred by the 2011 Legislature to the Department of Economic Opportunity. The Current Plan does not establish an urban service boundary. Mr. Ivey opined that the FLP is compatible with the character of the area because of the 200-foot wide buffers that exist between the SDA and GreenKey areas. The FLP provides for the City of Edgewater and Farmton Water Resources to provide central water and sewer, and there is adequate water supply. The FLP is consistent with NRMA and ECO because it achieves permanent protection of the key ecological resources on-site. The 11,000 acres of land on the Farmton Site under the ECO are entirely preserved. Conservation Element Policies Petitioners allege that the FLP is inconsistent with Conservation Element Policies 12.2.1.1, 12.2.1.2, 12.2.2.5, 12.2.2.7 and 12.2.3.2. The "Overview" section of the Conservation Element opens with the following paragraph: The Conservation Element provides the framework for the preservation, protection, and enhancement, of the County's natural resources. As such, the goals, objectives and policies outlined in this Element are strongly intertwined with other elements in the Comprehensive Plan relating to land use, utilities, recreation and open space, transportation and coastal management. It is the intent of this Element to provide a basis for responsible decision making for the appropriate use of natural resources when confronted by growth and corresponding development, as well as the identification and preservation of ecologically irreplaceable resources. Joint Ex. 1, Chapter 12, at page 2 of 16. Objective 12.2.1 is: "To provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Id. at page 7 of 16. Policy 12.2.1.1, in pertinent part, provides that "existing, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning. These lands shall comprise the NRMA established in the Future Land Use Element. Mr. Pelham views the FLP as not managing the natural resources on the Farmton Site as a unit because it allows development to occur in eight different nodes of development spread out across the property. The development that is allowed, therefore, is fragmented. Mr. Pelham, moreover, sees the FLP as far less protective than the Current Plan because it does not retain protection of the NRMA. By eliminating low-density land use classifications in the SDAs, and replacing it with a large city, the effect on the more protective NRMA designation in his view, is that the FLP "retains the shell and takes out the meat." Tr. 271. In contrast, experts for the County and Miami Corporation see just the opposite. By confining development in the SDAs, which have additional internal protections provided by RBOS and MRBOS designations, and preserving in perpetuity up to 80 percent of the Farmton Site with special protections for wildlife corridors, the FLP provides permanent protection for the most environmentally-sensitive land on site. Policy 12.2.1.2 establishes the three low-density categories that currently apply in the NRMA area: ESC, FR and Low Impact Urban. Replacing the low density use classifications with the FLP has the benefit of protecting the Farmton Site from ranchette-type development with the urban village development pattern that provides the conservation benefit of permanent protection of the most environmentally sensitive lands on site. Objective 12.2.2 is "[t]o minimize, and eliminate where reasonably achievable, impacts to ecological communities which degrade their natural physical and biological functions as a result of land development activities." Id. at page 8 of 16. Policy 12.2.2.5 provides, "The County shall require clustering of dwelling units and/or open space for land development projects which contain environmentally sensitive lands and critical habitats within its project boundaries, in order to preserve these resources." Id. The policy is the most detailed rural clustering plan in Florida. The FLP is viewed by Mr. Pelham as inconsistent with the policy because of the allocation of multiple development nodes spread out over the Farmton Site. Ms. McGee sees a distinction in the language of the policy when compared to the FLP. "The important distinction is that this policy specifically refers to land development projects versus land planning projects." (emphasis added). Tr. 445. Petitioners contend there is no inconsistency because the aim of the policy is achieved since the most environmentally sensitive land is preserved in perpetuity by the FLP, functional and natural open space is set aside, and wetland buffers are provided in the FLP. Policy 12.2.2.7 requires the County to coordinate with appropriate governmental entities to protect environmentally sensitive lands that extend into adjacent counties and municipalities. Michael McDaniel testified at the 2010 hearing that the FLP allows the Gateway development to be adjacent to a 3,500 acre conservation area designated by the City of Edgewater as part of the Restoration DRI. Development allowed by the FLP in the Gateway SDA was determined by DCA initially to be not compatible with the resources in the conservation area and the designation of the area by the City of Edgewater. The Original Amendment, therefore, failed to reflect the intergovernmental coordination required by the policy in his view. At his deposition conducted prior to the 2011 Hearing, Mr. McDaniel testified that after the Remedial Amendments the Gateway Project would still be just south of the conservation land designated by the City and that nothing specific had been done in the Remedial Amendments to address the inconsistency with the policy. Policy FG 3.4 in the FLP includes several provisions relating to coordination with adjacent jurisdictions, two of which specifically refer to the Restoration DRI. Policy FG 2.11q requires the Farmton conservation management plan to be coordinated with the natural resource protection measures within the RBOS and Conservation Areas of Restoration. This requirement will ensure maximum open space connectivity between the Restoration development and any development in the northern portions of the Farmton site. On the southern end of the Restoration site (just to the north of the Farmton Site) is an area designated to be used for utilities. That area directly adjoins one of the three Gateway SDAs. The Restoration site includes a significant amount of degraded areas in need of restoration. East and west of the Gateway SDAs, there will be broad corridors that connect with the Restoration site. The Restoration DRI is subject to a conservation management plan requirement that can be coordinated with the FLP's CMP. During the Original Amendment process, the County coordinated with the City of Edgewater. As a result of discussions between the County and the City, the FLP incorporates policies to address common water supply issues and future coordination. The City has no objection to the FLP. The Amendment is internally consistent with Conservation Policy 12.2.2.7. Objective 12.2.3 is "[t]o eliminate any net loss of wetlands and prevent the functional values of such wetlands to be degraded as a result of land development decisions." Policy 12.2.3.2, in pertinent part, provides that "[p]roposed activities within the NRMA . . . shall avoid adverse impacts to wetlands and their associated natural, physical and biological functions, except in cases where it can be demonstrated to be in the overriding public interest." The policy also calls for mitigation in cases of overriding public interest. Wetland features are present in abundance and interspersed throughout the Farmton Site. Respondents contend that a reasonable interpretation of the policy is that it applies to projects at the time of decisions on applications for development orders rather than planning decisions such as adoption of the FLP. Since the policy, under the interpretation, does not apply to the FLP, the policy cannot be inconsistent with it. Public School Facilities Public School Facilities Element Policy 3.1.4.3 requires a finding by the School Board that adequate school capacity will either be timely planned or constructed if there is inadequate capacity at the time of a land use change. Petitioners contend that FLP Policies FG 6.1 and 6.2 are inconsistent with Public School Facilities Element 3.1.4.3. The FLP was coordinated with the Volusia County School District ("School Board"). The School Board reviewed the proposed FLP and revised its school provisions. At the time of the Original Amendment, the School Board, based on its independent data and analysis, determined that there is adequate school capacity for a maximum of 2,287 residential units through 2025. Based on school capacity, Policy FG 1.4 limits residential development through 2025 to 2,287 units in the Gateway district. The policy further restricts residential density in the Gateway district to a maximum of 4,692 units. "[A]ny increase in the density of the Gateway district above the 2,287 units [for which there is adequate school capacity now] and up to 4,692 units [the number of units allowed] shall not be effective until such time as the school district has issued a finding of school adequacy." Joint Ex. 7, Tab D-2, at page 7 of 49. Policies FG 6.1 and 6.2 reiterate the 2,287 unit cap and do not allow additional residential units until the School Board finds adequate capacity to provide for additional units. Other FLP Policies "Fiscal neutrality means the costs of additional school district and local government services and infrastructure that are built or provided for the SDA districts shall be funded by properties within the approved SDA districts." Joint Ex. 7, Policy FG 7.1, page 42 of 49. Policy FG 7.1 requires each development within an SDA to provide adequate infrastructure that meets or improves level of service standards or will result in a fiscal benefit to the County and its municipalities. Policy FG 5.13 authorizes mitigation for offsite transportation impacts through proportionate fair-share or proportionate share payments. The policy requires proportionate fair-share or proportionate share payments to mitigate the offsite transportation impacts. State law authorizes proportionate-share contributions or construction to satisfy transportation concurrency requirements of a local comprehensive plan under certain circumstances. See § 163.3180(5)(h)3. There is no definition in chapter 163 of "fiscal neutrality." Nor is there a requirement that a developer pay for more than its pro rata share of impacts. Capital Improvements Element/Public Facilities With regard to "capital improvements and public facilities," Petitioners make three allegations that the FLP is not in compliance. First, Petitioners allege the FLP fails to demonstrate the availability of public facilities and services, as required by sections 163.3177(3)(a), 163.3177(6)(a)2.d., and 163.3177(6)(a)8.a. Second, pointing to sections 163.3177(6)(a)2.d. and 163.3177(6)(a)3.e., they allege that the FLP improperly defers data and analysis on which to base the adequacy of public facilities and services. Third, they allege the revised water supply data and analysis used to support the Remedial Amendments do not demonstrate the availability of sufficient water supplies. The term "public facilities" is defined in section 163.3164(38). It "means major capital improvements, including transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational facilities." Section 163.3177(1)(f), requires all mandatory and optional elements of the comprehensive plan and plan amendments to be based on relevant and appropriate data and analysis. Section 163.3177(6)(a)2.d. requires the future land use element and plan amendments to be based on surveys, studies and data regarding the area as applicable including the availability of water supplies, public facilities and services. FLUM amendments are required by section 163.317(6)(a)8.a. to be based on an analysis of the availability of facilities and services. The FLP is supported by adequate public facility data and analysis. The data and analysis supporting the Original Amendment includes transportation network maps that generally depict and project external roadways and transportation improvements that will need to be built to serve development under the Amendment through 2025 and through 2060. It also includes an evaluation of current and future roadway level of service standards. The Original Amendment includes data and analysis that evaluate potable water and sanitary sewer demand. The water and sewer analysis includes separate charts for build-out in 2025 and in 2060 which assume maximum residential potential and expected nonresidential development types. The data and analysis evaluate impacts of development under the FLP in the short term and in the long term. A transportation analysis was submitted as part of the proposed Amendment package that evaluates impacts on the level of service standards of roadways through 2014 (5 years from the submission of the original Amendment) and 2025. Tables 12 and 13 of the analysis identify roadway improvements needed to maintain level of service standards in 2014 and 2025, respectively, assuming maximum development under the existing land uses and under the Amendment. The transportation analysis assumes full maximum development potential under the Amendment, not realistic growth projections. The analysis therefore evaluates 4,692 residential units and 820,217 square feet of nonresidential development, the maximum development potential under the current land uses. The original water demand analysis applies the Amendment's water conservation policies, as encouraged by the SJRWMD. That analysis estimates a water demand of 1.36 million GPD in 2025 and 6.714 million GPD in 2060. Another water demand analysis compares onsite development scenarios for ranchettes, a commercial nursery, and development under the FLP. The analysis demonstrates development under the FLP would use substantially less water than would development of ranchettes and a commercial nursery. The Remedial Amendments include revised water supply data and analysis that was requested by, and coordinated with, the SJRWD to more closely reflect the water conservation policies in the FLP. The Original Amendment's water supply analysis assumes usage of 250 GPD per residential unit, whereas the Remedial Amendments' revised water supply data and analysis assume a reduced usage of 175 GPD per residential unit. The SJRWMD accepted the revised data and analysis. Petitioners dispute the data and analysis' use of 175 GPD as underestimating demand, but they do not dispute the data and analysis' nonresidential usage rates. The use of 175 GPD is professionally accepted and the data and analysis demonstrate the availability of adequate potable water supplies. The estimated usage of 175 GPD is achievable under the FLP's conservation measures and is a conservative rate based on the FLP's provision for many multi- family units which have a lower GPD than single family units. Applying either 250 GPD or 175 GPD, the site's groundwater source of potable water, estimated to be 9.6 million GPD, will be adequate to provide potable water for maximum residential and nonresidential development under the Amendment while meeting the contractual obligation to provide 2.75 million GPD to the city of Titusville. Petitioners also dispute the reclaimed water analysis assumption in the revised water supply data and analysis that 20 percent of the SDAs will be covered with stormwater facilities. "Twenty percent of the developed landscaped is a lot of land devoted to stormwater treatment." Tr. 142. Mr. Diamond, Petitioners' expert, suggested an assumption of seven to eight percent of the SDAs devoted to stormwater treatment is more appropriate. Civil engineer Mark Dowst, however, demonstrated the 20 percent assumption is based on his experience designing hundreds of stormwater systems and is professionally acceptable. The general range, in his opinion, is 12 to 15 percent. In areas with flood plains or a high water table, such as the Farmton Site, the amount of land devoted to stormwater treatment must be more than the general range. The School District determined there was adequate school capacity through 2025 for a maximum of 2,287 residential units authorized under the current land uses. The School District also found the Amendment addresses and protects the School District's interests. Based on the School District's finding, Policy FG 1.4 limits residential development through 2025 to 2,287 units within the Gateway district until the School District issues a finding there is additional capacity. Policy FG 6.2 recognizes the School Board has not determined there is capacity for more than 2,287 units and therefore "no finding of school adequacy can be issued until and unless the Interlocal Agreement is amended to allow school capacity to be provided within the concurrency service area in which the Farmton Local Plan is located." Joint Ex. 7, Tab D-2, page 40 of 49. The Amendment reacts appropriately to relevant school capacity data and analysis. Petitioners did not demonstrate how the FLP is inconsistent with applicable public facility requirements. They did not demonstrate that the FLP triggers a need under the New Act to amend the Capital Improvements Element. In order to encourage the efficient use of public facilities, section 163.3177(3)(a) mandates that the comprehensive plan contain a capital improvements element designed to consider the location of public facilities that covers at least a 5-year period and that sets forth: "A schedule of capital improvements [the "CIS"] which includes any publicly funded projects of federal, state or local government, and which may include privately funded projects for which the local government has no fiscal responsibility. Projects necessary to ensure that any adopted level-of-service standards are achieved and maintained for the 5-year period must be identified as either funded or unfunded and given a level of priority for funding." § 163.3177(3)(a)4. Policy FG 8.1 prohibits the issuance of any building permit within five years of the Amendment's effective date. This provision clarifies that the Capital Improvement Schedule ("CIS") need not be amended yet. There is no requirement the CIS include public facilities that are privately owned or operated, or are owned or operated by a different local government. None of the infrastructure to be provided by Farmton Water Resources LLC or the City of Edgewater under the numerous policies under Objective 4 need be included in the CIS. The evidence shows it is not realistic to expect development impacts to occur within five years from the adoption of the Remedial Amendments on February 18, 2011. Section 163.3177(3)(b) requires that the capital improvements element be reviewed annually. The CIS will be amended in the future as needed based on projected public facility impacts of future development proposals. Section 163.3177(3)(a) requires less detail for long-range public facility planning than for the five year CIS. The Amendment includes an adequate amount of detail for long range planning for public facilities. Policy FG 4.14 authorizes Farmton Water Resources, LLC, and the City of Edgewater to provide water to the site. Policy FG 4.19 identifies the City of Edgewater as the provider of potable water and wastewater for Gateway. The data and analysis include a utility service area map showing the service area. Policy FG 4.18 requires Farmton Water Resources, LLC, to provide off-site and on-site potable water, nonpotable water, and wastewater. That policy and Policy FG 4.21j list various infrastructure improvements that will be needed to provide those services. At this time, it is not possible to identify where public facilities will be located or their costs. Policy FG 8.3 requires all SDA development to undergo master development-of-regional impact review process, which will ensure infrastructure, including transportation, schools, stormwater, and water supply, to be a condition of the master DRI development order. Policy FG 8.7 includes a requirement that each increment of development address the adequacy of public facilities and services such that they are available to accommodate development and maintain or improve level of service standards. The master DRI requirement is a reasonable strategy to ensure infrastructure will keep pace with development. Water Supply Petitioners contend that the increased development allowed under the FLP was not anticipated by the water supply plan of the SJRWMD, or of any local government, and that a concurrent water supply plan amendment is required. They further argue this omission demonstrates the FLP is not based on the availability of water supplies. Petitioners also allege the Amendment is inconsistent with the Plan’s Potable Water Sub- Element Policies 7.1.3.1 and 7.1.3.3. Those issues were raised by the Department and SJRWMD, but were resolved to their satisfaction in the Remedial Amendments. SJRWMD proposed Remedial Policies FG 4.14, 4.15, 4.18, and 4.21. The Remedial Amendments also included additional data and analysis, which was accepted by SJRWMD. The Original Amendment is supported by data and analysis demonstrating there is a new source of potable water located on the site. The new water source is groundwater contained within the Upper Floridan aquifer and is of potable water quality. The potable water supply analysis demonstrates the new source of potable water is adequate to supply more than enough potable water to supply development under the FLP. The supply is conservatively estimated to be able to produce a sustainable 9.6 million GPD, while the projected demand for development under the FLP is estimated to be 6.76 million GPD. Future land use plan amendments must be based on data regarding the area including "[t]he availability of water supplies . . . ." see § 163.3177(6)(a)2.d. Adequate potable water supply must be shown to be available but need not yet be a permitted source. Regardless of whether the new groundwater source is identified in a regional or local water supply plan, the FLP is supported by a demonstration of an adequate water supply, as required by section 163.3177(6)(a)2.d. Non-inclusion in a water supply plan does not negate the fact that a new source of potable water has been discovered and demonstrated to be available. Section 163.3177(6)(c) requires each water management district to adopt a regional water supply plan every five years and for each local government to incorporate relevant facilities contained in the regional plan into its comprehensive plan by adopting a local water supply plan within eighteen months after the regional water supply is adopted. The FLP was adopted between updates of the SJRWMD regional water supply plan and local water supply plan updates. The SJRWMD plan was required to be adopted in 2005, but was not adopted until February 2006. The mandatory five-year update for the SJRWMD was due in the fall of 2010, but has been delayed. The County’s required water supply facilities work plan was adopted on June 8, 2009. There is no requirement for the county to amend its Water Supply Facilities Work Plan before the SJRWMD amends its regional water supply plan. Potable Water Sub-Element Policy 7.1.3.3 requires the County to review its Water Supply Facilities Work Plan annually and update it as necessary. The FLP recognizes the County’s obligation to later amend its Water Supply Facilities Work Plan and is consistent with it. Policy FG 4.15 requires Farmton Water Resources, LLC, to coordinate with the County, municipalities and the SJRWMD to propose additions to their applicable water supply work plans. The unchanged portion of revised Policy FG 4.18 expressly requires projects to be included in the annual updates as those projects are identified and approved. There is no statutory requirement that such availability be included in a water supply project list until the county and regional water supply plans are updated. Nonetheless, the report prepared by Dr. Seereeram demonstrated through data and analysis that sufficient on-site water will be available. Potable Water Sub-Element Policy 7.1.3.1 requires the County to maintain a Water Supply Facilities Work Plan that is coordinated with the SJRWMD water supply plan. The FLP is consistent with this policy because Policy 7.1.3.1 does not address the situation posed in this case by the delay of the update to the SJRWMD water supply plan. Policy FG 4.18, moreover, requires coordination after that update is made. Section 163.3177(6)(c) is silent as to the need to identify potable water projects between water supply amendment cycles, and as to the format a local government must use to identify water supply projects. Petitioners did not demonstrate the FLP is required to include amendments to the water supply plan, as opposed to a later update of the water supply plan, as required by Policy FG 4.18. They also did not demonstrate what legal requirement necessitates additional information, beyond the identity of the water source and its demonstrated adequacy, in order for the Amendment to be based on relevant and appropriate data and analysis to demonstrate the availability of a water supply. Public Schools The County is required by section 163.3177(6)(a)7 to identify the land use categories in which public schools are an allowable use. The School District is responsible for identifying sites for future schools. In keeping with its responsibility, the School District has mapped future school sites needed through 2025. It has not planned, however, for new school sites needed through 2060. Objective 3.2.2 governs and requires establishment of "School Concurrency Service Areas," Joint Ex. 1, ch. 3, page 6 of 12. They are areas "within which an evaluation is made of whether adequate school capacity is available based on the adopted level of service standard." Id. Policy 3.2.2.8 requires "[r]equests to develop properties within the central school concurrency service areas at residential densities and intensities greater than the current land use or zoning designations . . . . [to] be done via a comprehensive plan amendment consistent with the Volusia County Charter provision 206 regarding school planning." Id. at page 7 of 12. Section 206 required the county council not later than September 30, 2007, to adopt an ordinance to the effect that any plan amendment allowing increased residential density "may be effective only if adequate public schools can be timely planned and constructed to serve the projected increase in school population." DCA Ex. 10. The policy further requires the amendment to demonstrate how school capacity will be met consistent with the terms of the First Amendment to the Interlocal Agreement for Public School Facility Planning, effective July 2007, and Section 206 of the Volusia County Charter. The FLP is consistent with Public Schools Policy 3.2.2.8 because it limits residential development to 2,287 units until there is a School District finding of additional capacity. Policy FG 8.3g. requires each increment of development in the master development order to include provision for schools, thus further ensuring adequate public schools will be timely built and available to serve all future development. The use of a plan amendment to include limitations on development based upon the availability of public facilities has been accepted by the Department. Policy FG 6.2 requires an amendment to the Interlocal Agreement before the School District can find there is additional capacity. This policy is coordinated and consistent with Policy FG 3.2.2.8's requirement that plan amendments be consistent with the Interlocal Agreement. A plan amendment creates an internal inconsistency when it has the effect of conflicting with an existing provision of the comprehensive plan, but if an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency. Related school concurrency Public Schools Objective 3.2.1 requires the County to "ensure that the capacity of schools is sufficient to support residential subdivisions and site plans at the adopted level of service standard within the period covered by the five-year schedule of capital improvements." Joint Ex. 1, ch. 3, page 5 of 12. Since school concurrency is a five-year planning concern and no development should occur within the next five years, there is no inconsistency between the FLP and Policy FG 3.2.2.8. Policy FG 3.1.4.1 requires the County to "take into consideration" School District comments and findings on the availability of adequate school capacity in its evaluation of plan amendments. The FLP is consistent with this policy. The County not only took the School District's comments and findings into consideration, but the FLP limits development to current and future findings of adequate school capacity made by the School District through Policy FG 1.4. Objective FG 6 in the FLP governs "School Planning and Concurrency." It states: "The Sustainable Development Area districts shall be designed and planned to ensure that the educational facilities are integral components within the community and that adequate school capacity can be timely planned and constructed to serve the anticipated population." Joint Ex. 7, Tab D-2, page 39 of 49. The school policies that implement Objective FG 6, Policies FG 6.1 through 6.8, were drafted by the School District and are based on the best available data and analysis about future school sites, which currently is available from the School District only through 2025. Meaningful and Predictable Standards Petitioners contend that Policies FG 2.16 and FG 3.10 (untouched after the Original Amendment), and Policies FG 2.4, 2.5, and 2.18 (as revised by the Remedial Amendments) fail to establish the meaningful and predictable standards required by section 163.3177 (1). The statute, in pertinent part, provides: The plan shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. Policy FG 2.16 requires a Community Stewardship Organization ("CSO") to be established and governed by seven directors. The policy provides the CSO's governance board of directors is to be composed of seven members, four of whom must be representative of statewide or national non-profit environmental/conservation organizations in existence at the time of the adoption of the FLP such as the Nature Conservancy, Florida Audubon Society, Trust for Public Lands, and the Florida Wildlife Federation. The owner shall be represented on the board, and the other two members may include representatives of public agencies, stakeholders and public citizens who participated in the development of the FLP. The policy also lists various functions the CSO may or must perform, including taking title to the GreenKey and RBOS areas or co-holding a conservation easement. The CSO is mandated to participate in development of the CMP. The policy also requires all current and future deeds of the Deep Creek Conservation Area, which is within the West Mitigation Bank, to be conveyed to the CSO. Policy FG 2.16 identifies specific activities for the CSO to undertake, and contains meaningful and predictable standards to guide the CSO's composition and actions. Policy FG 3.10 requires a jobs-to-housing ratio of one job per one residential unit. The policy also states Gateway development shall be Phase One and is exempt from the ratio requirement. Development orders for subsequent phases must include milestones for achieving the ratio. The ratio must be monitored at least annually. If the ratio falls below 0.65 (0.65 job for each housing unit), the policy requires development approvals to cease until a remedial plan is developed and approved. Policies FG 8.3j and Policy FG 8.4j require any development orders to include provisions to implement the jobs to housing ratio. Policy FG 3.10 does not allow the remedial plan to achieve any other ratio. A plain reading of Policy FG 3.10 as a whole, including the requirement to monitor compliance with the ratio, reveals it to be a remedial plan that must achieve the 1:1 ratio referred to in the policy. Policy FG 3.10 identifies specific strategies to achieve a balance of housing and employment opportunities, and contains meaningful and predictable standards to guide its implementation. There is no requirement for a CSO and there are no compliance criteria to guide the composition and roles of entities such as the CSO, nor does the law require or provide criteria for jobs to housing ratio. Policy FG 2.4 was revised by the Remedial Amendment to create MRBOS areas and depict them on Map Figure 1-12N so as to provide certainty as to where certain portions of RBOS lands will be located. MRBOS lands have the effect of expanding the GreenKey designated areas for the Cow Creek Corridor and the Southwest Wildlife Corridor. The Policy states MRBOS lands will not be subject to the RBOS public access plan, but will be subject to the Black Bear management plan. The Remedial Amendment's details for the new MRBOS areas are predictable and meaningful. The changes to Policy FG 2.5 clarify that the Southwest Wildlife Corridor must be "consistent with a forestry management plan designed to provide prescribed fire, promote dense understory vegetation such as palmetto and [be] consistent with the Black Bear Management Plan" as required in original Policy 2.5b. Petitioners did not present any competent substantial evidence that this guidance for the forestry management plan does not provide adequate meaningful and predictable standards. Policy FG 2.18, "Transportations Policies and Natural Resource Protection," addresses the arterial roads that traverse the GreenKey lands and provides design guidance to avoid and minimize conflicts between motor vehicles and the movement of wildlife. Section "a" of the policy, which was unchanged by the Remedial Amendment, includes the following non-exhaustive list of tools to minimize this conflict: landscaping techniques, fencing, speed limits, wildlife overpasses or underpasses, bridges, and elevating roadways. This section applies to the three arterial roads shown on the Spine Network Map; Williamson Boulevard, Maytown Road, and Arterial A. The proposed general alignment of Williamson Boulevard does not intrude into the boundaries of the Deep Creek Conservation Area, the Cow Creek Corridor, the Power Line corridor, or the Southwest Wildlife Corridor. Williamson Boulevard runs through, and connects, the largest Gateway SDA and the Work Place, Town Center, and the easternmost village. The Remedial Amendment revises Policy FG 2.18 by creating Sections "b" and "c." Section "b" provides mandatory guidelines that apply only to Maytown Road and Arterial A and requires their design to be based on "best available science" as determined by the FFWCC. Section "c" encourages additional guidelines for Maytown Road and Arterial A subject to the discretion of the roadway designers. As a whole, Policy FG 2.18 provides meaningful and predictable guidance for the designers of the roadways. There are no minimum standards in the New Law for the design of roadways to minimize conflicts with wildlife. With proper implementation, the guidelines in Policy FG 2.18 are reasonably expected to produce the defined outcome of a roadway network that will minimize conflict with wildlife. Audubon’s Charles Lee testified the policies were based on the model policies in the Wekiva Parkway Plan. Mr. Telesco of the FFWCC testified the policies were in line with FDOT policies. Further, the phrase "to the extent practicable" is a known conservation standard taken from the Endangered Species Act. Policies FG 2.4, 2.5, 2.16, 2.18, and 3.10 provide an adequate amount detail for a comprehensive plan amendment, as required by section 163.3177(1).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order that determines the Farmton Local Plan incorporated into the Volusia County Comprehensive Plan through amendments adopted by Volusia County Council Ordinance Nos. 2009-34 and 2011-10 is "in compliance." DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2012.
The Issue The issue is whether an amendment to the comprehensive plan of the City of Cocoa Beach is in compliance with Chapter 163, Part II, Florida Statutes.
Findings Of Fact On February 15, 1996, Respondent City of Cocoa (City) adopted Ordinance 1100 to amend the future land use map (FLUM) of the City’s comprehensive plan (Plan). The amendment affects about three-quarters of an acre designated as Parcels 2 and 5 in the subdivision recorded at plat book 21, page 9, public records of Brevard County, Florida. Parcel 2 is 0.18 acres of privately owned submerged bottom. Parcel 5 is 0.57 acres of uplands, of which 0.48 acres is road right-of-way. The affected area is adjacent to and in the Banana River and adjacent to the Banana River Aquatic Preserve. The amendment changes the future land use designation of each parcel to Moderate Density Residential. The amendment as to Parcel 5 is unconditional and took effect upon the adoption of the ordinance. The amendment as to Parcel 2 is conditional. The ordinance provides that the designation of Parcel 2 changes “only upon issuance of a dredge and fill permit by the City.” Prior to the amendment, the future land use designation of part of the land within Parcel 5 was General and the remainder was undesignated. Prior to the amendment, the future land use designation of the submerged bottom of Parcel 2 was Conservation. There is some dispute as to the designation of Parcel prior to the amendment. Petitioner contends it was Conservation; Respondents contend it was undesignated. The submerged bottom is white on the FLUM, and white designates Conservation. Although the FLUM also depicts roads in white, they are obviously not Conservation uses. The plan states that the Conservation designation is intended “primarily”--though not exclusively--for islands in the Banana River. There is nothing unusual in designating as Conservation submerged bottom in the Banana River and adjacent to the Banana River Aquatic Preserve. Respondents have not presented sufficient evidence to overturn the evident and logical designation of Parcel 2 as Conservation, prior to the present amendment. The area in question is bordered on the west and south by the Banana River and the east and south by roadways. To the north lies a 90-foot wide vacant lot. Surrounding land-use designations are Moderate Density Residential and Single Family Residential. To the north and east of the vacant lot is a three-story, 18-unit condominium. To the south of the road adjoining the south border of the subject area are numerous single family residences on lots ranging from 90-125 feet wide. Across the road intersection due east of the subject area is another condominium development. The area south of the subject area is general single family residential. The City’s analysis accompanying the redesignation of Parcels 2 and 5 explains that Parcel 2 “used to be dry land but has eroded away. At present, no use can be made of the property.” The analysis notes that the maximum allowable use under the Medium Density Residential designation would be 3/4 of an acre times 12 units per acre, for a total of 9 units. Without any explanation, the independent planning consultant employed by the City asserted that “[t]here are no environmental concerns on the upland, nor wetlands.” The consultant noted that the State of Florida was responsible for issuing dredge and fill permits. At the invitation of all the parties, the administrative law judge visited the site in the presence of all the parties. Consistent with all of the documentary and testimonial evidence, he found Parcel 2 under 1-2 feet of the water of the Banana River. The Conservation Element of the Plan contains data and analysis stating that seagrasses and algae in the lagoon provide nursery and breeding grounds for shellfish and finfish, and the “entire Banana River Lagoon has been designated as a critical habitat necessary for [the] survival [of the West Indian manatee].” The Plan notes that the lagoon is a feeding area for manatees, a source of detrital food, vital nursing habitat for larval and juvenile stages of marine life, and a contributor to water quality. The Plan notes that [u]rban development activities associated with the use of coastal lands are primary problems to the maintenance of [the] City’s natural resources. Many functions of vital estuarine areas have been impaired or threatened by encroaching development. These losses, in most cases, cannot be reversed and have contributed to declining fishery productivity as well as to other coastal resource related problems. The western edge of Cocoa Beach lies on the Banana River Lagoon. The Lagoon is a low flow system with negligible tidal exchange and little fresh water input other than runoff, discharge, and precipitation. Its naturally poor water circulation has been compounded by man- made alterations and the Lagoon has little capacity to handle pollutants. State Road 520 and the Minuteman Causeway have slowed the flow of water in the Lagoon, as have the numerous finder canals. Urban runoff, storm drain discharge, and discharge from various treatment plants near Cocoa Beach, in the surrounding municipalities and County areas, are the primary sources of pollution and are a cause of the Lagoon’s “poor” water quality, primarily in the form of high nitrogen and chlorophyll readings. Future Land Use Element (FLUE) Objective 1 is to adopt and modify land development regulations to manage future growth in the City. FLUE Objective 16 is to encourage the use of innovative land use regulations as to areas in need of redevelopment. Conservation Objective 1 is to require “positive siting and land management techniques . . . to maintain or improve estuarine environmental quality.” Conservation Objective 2 is for the City to provide, by the end of 1990, criteria for setting priorities for shoreline uses so as to give priority to water-dependent uses. Conservation Objective is to “protect species that are listed as threatened or endangered by state or federal agencies.” As set forth in Section 187.201(16)(b)3 and 6, the third and sixth policies of the land-use section of the State comprehensive plan are to Enhance the livability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. Petitioner has failed to show to the exclusion of fair debate that the designation of Parcel 5 is unsupported by the data and analysis, including land use suitability analysis; is internally inconsistent with any provision of the Plan or the FLUM; or inconsistent with any provision of the State comprehensive plan. The designation of the uplands is consistent with the surrounding land uses and is not contraindicated by any data and analysis, especially given the small area involved. Petitioner has shown to the exclusion of fair debate that the designation of Parcel 2 is unsupported by the data and analysis, is internally inconsistent with the cited objectives of the Conservation Element, and is inconsistent with the sixth policy of the land use portion of the State comprehensive plan. These findings are independent of the current designation of Parcel 2. If Parcel 2 is designated Conservation, as has been found, its redesignation as Medium Density Residential is also inconsistent with the FLUM, which more sensibly designates the submerged bottom as Conservation. Designation of submerged bottom for Medium Density Residential is unsupported by the data and analysis concerning the values of the Banana River in providing water quality and habitat values. Designation of submerged bottom for Medium Density Residential conflicts with the cited Conservation objectives and the sixth policy of the land-use section of the State comprehensive plan. This is not a case in which the designation of submerged bottom serves some rational purpose, such as facilitating water-dependent or public-facility uses. The only apparent purpose of designated the 0.18 acres of submerged bottom as Medium Density Residential is to allow greater density on the adjoining uplands. Under the facts of this case, designating 0.18 acres of submerged bottom--even though privately owned--as Medium Density Residential makes no sense.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment as to Parcel 5 is in compliance and submit this recommended order to the Administration Commission for a final order determining that the amendment as to Parcel 2 is not in compliance. DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997. COPIES FURNISHED: Charles F. Moehle 65 Country Club Road Cocoa Beach, Florida 32931 William Weller Rose & Weller Post Office Box 321255 Cocoa Beach, Florida 32932-1255 Shaw P. Stiller Assistant General Counsel Stephanie Crossman Eligible Law Student Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Bram D. E. Canter 103 North Meridian Street Tallahassee, Florida 32301 Stephanie Gehres Kruer General Counsel 2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 James F. Murley, Secretary 2555 Shummard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
