The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
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 finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Jefferson County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. At issue in this case is a plan amendment adopted by the County. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns and operates a nursery, orchard and cattle operation on his property on the east side of Highway 19, approximately two miles north of Monticello, Florida. The land, which is approximately 135 acres in size, is presently designated in a land use category known as Agriculture 2. For the last twenty years or so, the Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven acre parcel of land surrounded on three sides by petitioner's property. Here, petitioner challenges a plan amendment which allows nursing homes, including JNC, in the Agriculture 2 category. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus he has standing to bring this action. The nature of the dispute The County adopted its comprehensive plan (plan) on July 19, 1990. Through inadvertence, in the original plan, institutional uses such as churches, schools, nursing homes, parks and recreation areas were not specifically allowed as permitted uses in any residential or agriculture district even though such uses were commonly found in both types of districts. Even so, on an undisclosed date, the plan was determined by the DCA to be in compliance. On April 1, 1994, the County submitted to the DCA various amendments relating to a proposed petroleum pipeline project. During the course of preparing those amendments, the County became concerned for the status of all of the existing churches, nursing homes, schools, and other institutional uses in the County, because of their not being specifically mentioned in the plan. To avoid any question about the status of these uses and their treatment in the Land Development Code, which implements the plan, the County included an amendment to Future Land Use Element (FLUE) Policy 5-9 to provide for the adoption of land development regulations to permit all public land uses. On June 8, 1994, the DCA issued its Objections, Recommendations, and Comments (ORC) Report concerning the proposed public land uses amendment. Among other things, the DCA determined that the language in the amendment was too broad. In response to the ORC, on August 3, 1994, the County adopted revised Ordinance 94-10, which amended the comprehensive plan to add a Public Facilities Land Use District, adopt a Public Facilities Land Use Map, and adopt a List of Public Facilities. Under this amendment, only existing public uses were included within the district, and these were specifically identified on a series of maps and a List of Public Facilities, both of which were included as part of the plan amendment. On September 26, 1994, the DCA issued its Notice of Intent to find Ordinance No. 94-10 not in compliance with Chapter 163, Florida Statutes. This determination was based in part on the fact that the amendment did not sufficiently detail what land use regulations and restrictions would apply in the district. On March 28, 1995, the County submitted to the DCA for its review a proposed ordinance repealing Ordinance 94-10 and amending the County's comprehensive plan to add a Public Facilities Land Use Overlay District, adopt a Public Land Use Map, and adopt a List of Public Facilities. This proposed amendment provided that the current land use district designation, and all applicable regulations for that district, would continue to apply to lands included within the overlay district. It also provided standards for any future additions to the overlay district. On June 2, 1995, the DCA issued its ORC Report concerning the proposed Public Facilities Land Use Overlay District amendment in which it continued to object to the proposed district. In response to the ORC, and after consulting with the DCA, on July 20, 1995, the County adopted Ordinance No. 95-07. That ordinance repealed Ordinance No. 94-10 and amended the comprehensive plan to allow (a) churches in all land use categories except Conservation District and (b) adult care facilities, day care facilities, and nursing homes in any land use district that allows residential use. Ordinance No. 95-07 was not adopted pursuant to a compliance agreement. On September 7, 1995, the DCA issued its Notice of Intent to find Ordinance No. 95-07 in compliance. Petitioner timely filed his appeal of the DCA's determination that Ordinance No. 95-07 was in compliance. As amended, the petition contends that the plan amendment is not supported by adequate data and analysis, lacks standards pertaining to density and intensity of development for nursing homes, and is internally inconsistent with the plan. As such, he contends the amendment is arbitrary and capricious, and not fairly debatable. Although the issues in the case have been framed by petitioner in this manner, in simple terms his primary concern is that nursing homes, and specifically JNC, are incompatible with agricultural uses and do not belong in the Agricultural 2 land use category. The Plan Amendment Identification and adequacy of data and analysis When it forwarded Ordinance No. 95-07 to the DCA for review, the County did not specify in its transmittal letter what data and analyses it was relying on to support the amendment. In an earlier telephone conversation between the County planner and the DCA, however, the County indicated that it was relying on the existing data and analysis originally submitted with its comprehensive plan. The DCA established that this is not unusual and is an acceptable practice for smaller counties. Indeed, there is nothing in Chapter 9J-5, Florida Administrative Code, which requires that the identification of the supporting data and analysis be conveyed to the DCA in writing. Jefferson County is a small, rural county with only one person in its planning department. For counties with limited technical staff, the DCA normally provides technical support, and it customarily reviews the plan and existing data and analysis to identify those portions of the documents which are relevant to, and support, a plan amendment. Thus, in accordance with its practice for smaller counties, the DCA did not require the County to make a complete assessment of the plan and point out various page and reference numbers, but instead it performed that task. There was no showing that petitioner, or any other member of the public, was prejudiced in any respect by the DCA doing this. Besides the existing plan data and analysis, the DCA also had in its files the map and list specifically identifying each public use existing in the County and its location, including all churches, day care facilities, and nursing homes. The map and list were available at the public hearings which culminated in the adoption of Ordinance 95-07, and identified JNC within the Agriculture 2 district. Petitioner, who was a long-time member of the County Planning Commission, attended those hearings. There is no evidence that he, or any other member of the public, was unable to participate in the amendment process in a meaningful way. In determining the text amendments to be in compliance, the DCA relied upon certain data in the plan, including the existing population survey, soil survey and soil suitability data; a table comparing population composition showing the population existing and the need for elderly housing; the silviculture map as a factor in determining site suitability; the land use map showing the general overview of all land use types in the County; an analysis of the uses in the different land use categories; and a map plat showing petitioner's property, the location of the JNC, the proximity of two mixed-use business/residential areas to the north and south, and the residential densities in the area. The DCA also considered policies in the traffic circulation and transportation elements of the plan, a table of existing traffic conditions, existing housing data, an inventory of group homes, and special housing needs within the County, including housing for the elderly. Finally, the DCA considered Housing Element Policy 5-3 and Objective The policy provides that the County shall establish nondiscriminatory standards and criteria addressing the location of group homes and foster care facilities as well as other special needs housing. The objective calls for adequate sites for group homes and facilities in residential areas or other appropriate areas of residential character. Petitioner's expert concedes that nothing prohibits the County from adopting an amendment which allows nursing homes in an agricultural district so long as adequate data and analysis are present, and appropriate nonresidential intensity standards are found in the plan. Given the foregoing data and analysis, it is found that petitioner has failed to prove to the exclusion of fair debate that the plan amendment lacks adequate data and analysis. Compatibility of uses Petitioner has also contended that the plan amendment allows uses (nursing homes) which are incompatible with agricultural uses. In this regard, petitioner offered his lay opinion that nursing homes are incompatible with agriculture uses because in the event of a problem during normal agricultural operations, such as a shift in the wind direction during burning or crop spraying, bedridden nursing home patients cannot be easily transported out of harm's way. With appropriate site planning features, petitioner's expert agreed that nursing homes are not inherently incompatible with agricultural land uses. The Code contains such site design criteria which are designed to eliminate or minimize incompatibilities. For example, it contains provisions regarding setbacks, a site planning process, and screening and buffering requirements. The fact that petitioner's agricultural operation and JNC have coexisted for more than twenty years is some evidence that the uses are or can be compatible. The County's proposed amendment to allow adult care facilities, day care facilities and nursing homes in the Agriculture 2 land use category is not inconsistent with any other objective or policy, is found to be fairly debatable, and is therefore in compliance. Density and intensity standards The law (s.163.3177(6)(a), F.S.) requires that comprehensive plans contain density and intensity standards for each land use. Petitioner contends that, notwithstanding this statutory requirement, there are no standards in the amendment or the comprehensive plan for density or intensity of development of nursing homes in the Agriculture 2 land use category. It is noted that the Agriculture 2 land use district description in Policy 1-3 of the FLUE provides a residential density but does not contain an intensity standard. FLUE Objective 1 provides, however, that "(f)uture growth and development shall continue to be managed using the County Development Code," which was adopted in April 1981. That Code spells out densities and intensities for each area. The objective further directs that the regulations be revised to address issues identified in Section 163.3203, Florida Statutes, compatibility of uses, and incentives to upgrade infrastructure. In addition, FLUE Policy 6-2 provides that the development review and approval process in the Code be the vehicle for limiting densities and intensities of development consistent with the availability of infrastructure. This policy has already been determined to be "in compliance" with Chapter 163, Florida Statutes. Rule 9J-5.005(8)(j), Florida Administrative Code, authorizes a local government to include in its comprehensive plan documents adopted by reference but not incorporated verbatim into the plan. In this case, the County adopted in its Code specific land development regulations governing growth and development, including density and intensity standards. There was no evidence that the Code fails to meet the statutory requirement that densities and intensities be included in the plan. Indeed, as a general rule, comprehensive plans in Florida either specifically describe all of the particular uses allowed in each district, or they generally describe such uses and let the particular uses to be allowed be determined in land development regulations. Here, the County has opted for the second type. This being so, it is found that petitioner has failed to establish to the exclusion of fair debate that the plan and plan amendment lack appropriate standards governing densities and intensities.
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 the County plan amendment adopted by Ordinance No. 95-07 to be in compliance. DONE AND ENTERED this 17th day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER 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 17th day of October, 1996. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Vance W. Kidder, Esquire 149 Carr Lane Tallahassee, Florida 32312-9032 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 David La Croix, Esquire 521 West Olympia Avenue Punta Gorda, Florida 33950-4851
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue The issue is whether that portion of Plan Amendment 98-1ER known as LU-97-02 is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background In this land use dispute, Petitioners, Janet Bollum (Bollum) and Glenn and Mary Brewer (the Brewers), who are property owners within or near the City of Deland, contend that a portion of Plan Amendment 98-1ER adopted by Respondent, City of Deland (City), is not in compliance. The portion of the amendment under challenge, known as Plan Amendment LU-97-02, changes the land use on 39.56 acres of land owned by Intervenor, Marcia Berman, Trustee (Berman), to Highway Commercial. The property is currently under contract to be sold to Intervenor, Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a Wal-Mart super store on a part of the site. Respondent, Department of Community Affairs (Department), is the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments. Until 1997, the Berman property was located in the unincorporated area of Volusia County (County). Prior to 1994, it carried an Urban Medium Intensity land use designation. That year, the County redesignated the property as Industrial. In 1997, the City annexed the Berman property and revised its Future Land Use Map the following year to change the land use to Highway Commercial. This change was accomplished through the plan amendment under challenge. On May 1, 1998, the Department issued its Statement of Intent to Find Portions of Plan Amendment Not in Compliance. More specifically, it found that the new land use designation would "generate traffic which causes the projected operating conditions of roadways to fall below adopted level of service standards and exacerbates projected roadway deficiencies." The Department also found that the amendment was "not supported by or based on, and does not react in an appropriate way to, the best available data and analyses." In making these findings, the Department relied in part upon a traffic study prepared by "TEI" in 1998 which reflected that the City's traffic system did not have sufficient capacity to accommodate the new land use. The Department determination triggered this action. On May 27, 1998, Petitioners, and 82 other property owners, filed a paper styled "Petition for Administrative Hearing and Petition to Intervene" challenging the change of land use on the Berman property in numerous respects. The paper was treated as a petition to intervene and was later granted. After the case was temporarily abated in August 1998 pending efforts to settle the matter, in January 1999, a new traffic study was prepared for the City by Ghyabi, Lassiter & Associates (GLA study), which determined that the existing and planned City transportation network could accommodate the impacts from the development allowed under the amendment. All parties except Petitioners then executed a Stipulated Settlement Agreement in February and March 2000, which resolved all issues originally raised by the Department. Thereafter, the Department issued an Amended Notice of Intent to find the plan amendment in compliance. As required by Section 163.3184(16)(f), Florida Statutes (1999), the parties were realigned consistent with their respective positions. Through an Amended Petition filed by Petitioners on July 19, 2000, all original Petitioners except Bollum and the Brewers have been dismissed, and the factual issues in this case narrowed to two: (a) whether the recent traffic studies "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent." Standing of the Parties Bollum owns property, resides within, and owns and operates a business within the City. She also submitted written and oral comments to the City while the amendment was being adopted. The parties have stipulated that she is an affected person and thus has standing to participate. The Brewers own property and reside in an unincorporated area of the County in the immediate vicinity of the proposed plan amendment. They also reside within what is known as the "Greater Deland Area," as defined by Chapter 73-441, Laws of Florida. However, they do not own property, reside within, or own and operate a business within the corporate limits of the City, and thus they lack standing to participate. The parties have stipulated that Intervenors Berman and Wal-Mart have standing to participate in this proceeding. The Amendment The Berman property lies on the eastern side of U.S. Highway 17 just north of the intersection of U.S. Highways 17 and 92, approximately three miles north of the City's central business district. The land is currently undeveloped. Prior to being annexed by the City, the property was located within the unicorporated area of the County, just north of the City limits. The earliest County land use designation was Urban Medium Intensity, a primarily residential land use classification which also allowed some commercial development, including small neighborhood shopping centers. In 1993, the County began a comprehensive examination of land use and zoning restrictions in the vicinity of the Berman property. In May 1994, it redesignated the Berman property from Urban Medium Intensity to Industrial. This use allowed not only industrial development, but also some commercial development. Before the Berman property was annexed by the City, it was depicted on the City's Urban Reserve Area Map (map). That map established advisory designations for unincorporated County land abutting the City, and was meant to be a guide for City land use decisions when property was annexed. The property was designated on the map as approximately one-half Commercial and one-half Industrial. In 1997, the Berman property was annexed by the City. Because the City was then required to place a land use designation on the property, on May 16, 1998, it adopted Amendment 98-1ER, which redesignated the property from Volusia County Industrial to City Highway Commercial. The new mixed-use designation allows "a wide range of retail and service and office uses," as well as up to twenty percent residential land uses, including multi-family manufactured housing developments. Thus, the Highway Commercial land use designation is meant to accommodate major shopping centers like the one proposed by Wal-Mart. Transportation issue In their Amended Petition, Petitioners allege that accepting as fact the "most recent traffic studies," those studies still "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)." The "most recent traffic studies" are the GLA study, and it shows that the existing and planned City transportation network can accommodate the traffic impacts arising from development allowed under the plan amendment. Some of the transportation impacts from the expected development on the Berman property will affect roadways within an area of the City that was formally designated in May 1992 as a Special Transportation Area (STA) or road segments with specialized level of service (LOS) standards. The STA includes the central business district and certain outlying areas essentially bounded by Minnesota Avenue, Amelia Avenue, the rear property lines of properties along the north side of New York Avenue (State Road 44), South Hill Avenue, Beresford Avenue, Boundary Avenue, and Clara Avenue, which extend to approximately one mile from the Berman property. None of the roadways within the STA are on the Florida Intrastate Highway System. Rule 9J-5.0055(2), Florida Administrative Code, requires that the City adopt LOS standards on roadways within its planning jurisdiction (which are not on the Florida Intrastate Highway System), including the disputed portion of U.S. Highways 17 and 92. The applicable LOS standards and STA provisions are found in Policies 3.1.7 and 3.1.10, respectively, of the Transportation Circulation Element of the plan. They read as follows: 3.1.7 For those roadways listed in Policy 3.1.6 [which include U.S. Highways 17 and 92], the City of Deland may permit development to occur until the peak hour traffic volumes exceed a 20% increase over the peak traffic counts published in the FDOT's 1989 Traffic Data Report. 3.1.10 As a result of FDOT's approval of the STA designation for US 17/92 (Woodland Boulevard), from Beresford Avenue to Michigan Avenue, and SR 44 (New York Avenue), from SR 15A to Hill Avenue, the following maximum LOS and/or traffic volumes shall be permitted. ROADWAY SEGMENT US 17/92, from Beresford to Michigan = 22,028 SR 44, from SR 15A to US 17/92 = LOS E SR 44, from US 17/92 to Hill = LOS E *The proposed maximum traffic volume is compatible with the maximum LOS for this section of roadway, as stated in Policy 3.1.7. These two policies have been found to be in compliance and are not subject to challenge in this proceeding. Although the STA is identified as a specific area, the City's Comprehensive Plan anticipates that development from outside of this area will impact the STA. As noted above, however, the undisputed GLA study demonstrates that the plan amendment will not allow development which would cause these adopted LOS standards to be exceeded. The STA was approved in May 1992, or prior to the enactment of Section 163.3180, Florida Statutes (1993), which allows certain exceptions from the otherwise blanket requirement to adopt and enforce a transportation LOS standard for roadways. Two planning tools made available to local governments by Section 163.3180(5), Florida Statutes (1993), are a Transportation Concurrency Exception Area (TCEA) and a Transportation Concurrency Management Area, both of which allow exceptions to transportation concurrency requirements. The practical effect of a TCEA is to allow development to proceed without having to comply with transportation concurrency. Petitioners essentially contend that the STA created by the City for the central business district and certain outlying areas is "the substantial equivalent of a TCEA," and thus it should be treated as one for purposes of this proceeding. They go on to argue that while the City may grant an exception to concurrency requirements for transportation facilities for projects located within a TCEA, those benefits cannot be extended to any other area, including the Berman property. Based on this premise, Petitioners conclude that without the benefit of the TCEA exception, the anticipated traffic from the new development on the Berman property will cause a "continuation of a [LOS] failure on the constrained segments of US 17/92 and on the unconstrained segment from SR44 to Wisconsin Avenue," in violation of the law. Petitioners' contention is based on an erroneous assumption. The evidence shows that the City has never adopted a TCEA. Neither has the STA "transformed" into a TCEA, as Petitioners suggest. Moreover, as noted above, the undisputed GLA study shows rather clearly that the plan amendment will not allow development which would cause the adopted LOS standards to be exceeded. Petitioners further contend that the plan amendment is somehow inconsistent with the transportation exception requirements in Section 163.3180(5)(b) and (c), Florida Statutes (2000). However, these provisions apply to developments "which pose only special part-time demands on the transportation system[,]" that is, "one that does not have more than 200 scheduled events during the calendar year and does not affect the 100 highest traffic volumes." The evidence shows that the Highway Commercial land use category is not designed for such developments and, in fact, encourages far more intense uses. Is There a Need for Additional Commercial Land? Petitioners next contend that "the plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent and not resolved by the Compliance Agreement." In the immediate vicinity of the Berman property, near the intersection of U.S. Highways 17 and 92 north of the City, "there is an emerging trend of 'regional-type' commercial developments." This area is already partially developed with commercial uses, and it has additional areas depicted for future commercial and industrial use. There are no other parcels in the City, especially in this area, of a sufficient size to accommodate this type of regional commercial development. There are numerous ways to project the raw, numerical need for commercial land in the City. The City's Comprehensive Plan, its Evaluation and Appraisal Report, and the GLA study all contain statements regarding projected population and employment, each portraying a slightly different result. In fact, Petitioners' own expert criticized the numbers used in these documents as being unreliable and suspect. The need calculus basically involves projecting population over a ten-year planning period and then allocating commercial, residential, and other land uses in an amount to match that projection. For the reasons set forth below, this process is imprecise, and it must be tempered by other factors. First, the planner must project population over the ten-year planning timeframe. Any mistake in this projection will skew the numbers. Second, employment ratios used in the calculus can change from year to year, especially in a smaller community. Also, other planning objectives are inherently subject to change year by year. Given this imprecision and changing market demands, it is appropriate for professional planners to overallocate land uses. An excess allocation of twenty-five percent (or an allocation factor of one hundred and twenty-five percent) is recognized by professional planners as being appropriate. The evidence supports a finding that this amount is reasonable under the circumstances present here. There are numerous professionally acceptable ways in which to allocate land uses. The City has not adopted a particular methodology in its Comprehensive Plan. The specifics of the plan amendment and the City's Comprehensive Plan make application of a strict numerical calculus even more difficult. The prior designation of the property was Industrial, which is not a pure industrial category, but actually allowed up to thirty percent of commercial uses. The amendment here simply changes the land use from Industrial, with some commercial uses allowed, to a mixed-use Highway Commercial designation. As noted earlier, the City's Comprehensive Plan anticipates regional commercial uses in the area of the Berman property. Finally, the parcel is relatively small (less than 40 acres) and is embedded within an urban area. Given the uncertainty of a numerical calculation of commercial need in the City, the size and location of the property, the property's inclusion in an urban area, and the surrounding commercial land uses, the evidence supports a finding that either Industrial or Commercial would be an appropriate land use for the property. The evidence further supports a finding that the need question is not a compliance issue here and does not support a finding that the plan amendment is not in compliance.
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 Plan Amendment 98-1ER adopted by the City of Deland by Ordinance Number 98-07 on March 16, 1998, to be in compliance. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2000. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 C. Allen Watts, Esquire Cobb, Cole & Bell Post Office Box 2491 Daytona Beach, Florida 32115 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 F. Alex Ford, Jr., Esquire Landis, Graham, French, Husfeld, Sherman & Ford, P.A. Post Office Box 48 Deland, Florida 32721-0048 Mark A. Zimmerman, Esquire James, Zimmerman, Paul & Huddleston Post Office Drawer 2087 Deland, Florida 32721-2087 David L. Powell, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Margaret E. Bowles, Esquire Margaret E. Bowles, P.A. 205 South Hoover Street Suite 402 Tampa, Florida 33609 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue for determination is whether Seminole Raceway, as proposed in Charles and Linda Wimberlys' Site and Development Plan and approved with conditions by the Leon County Development Review Committee (DRC), is consistent with the requirements of the 2010 Tallahassee-Leon County Comprehensive Plan (Comprehensive Plan) and is a permissible land use under applicable provisions of Chapter 10, Leon County Code (the Code).
The Issue Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
Findings Of Fact The Subject Property. The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida. Lot 111 is currently owned by the Petitioner, Carla Brice. Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993. Early History of the Development of Arredonda Estates. During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1"). Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice. Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein. Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A"). Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres. Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development. The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24. The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4"). The Development of Unit 4. Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns. The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary: In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a 0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40. Brice exhibit 9. Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4. Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County. The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road 24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road). Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only. The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved. Lot 111 was also zoned for agricultural use when acquired. On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service). On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County. On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR." Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111. Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4. The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970. Government Action Relied Upon. Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon. The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet. Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B. The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely. It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates. In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers: No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission. Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970. If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970. Detrimental Reliance. Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54. The total cost of improvements associated with Unit 4 was $121,947.54. Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so. The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice. One method of allocating costs associated with the development of Unit 4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111. The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111. Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50. Subsequent Events. Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111. The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14. No final development plan or plat approving a shopping center on Lot 111 was issued by Alachua County. Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans. It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons: A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A; A dispute also arose concerning the water system in the area of Arredonda Estates; The state of the economy was not conducive to development. The evidence, however, failed to prove why the shopping center was not developed. In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid. During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions. In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet. In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for. In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning. Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time. In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks. The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot 111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels. By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24. By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited. By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26. A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs. Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28. Rights That Will Be Destroyed. Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves: Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards: Development of Commercial Enclaves shall be required to meet all concurrency requirements. Development shall be required to minimize access from arterials and collectors. Whenever possible, driveways shall use common access points to reduce potential turn movements. A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave. Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants. The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions). In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through the County's Development Review Committee process. This policy shall be reviewed by 1993 to determine the effectiveness of the land use category. Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy. Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning. Carla Brice's Reliance and Detriment. The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father. The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111. In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable. Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center. I. Procedural Requirements. On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate. On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied. Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993. The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing. The formal administrative hearing of this matter was conducted on March 14, 1994.
The Issue The issue in these cases is whether amendments to the City of Stuart's comprehensive plan, designated amendments 97-S1, 97-1, 98-R1, and 98-ER1 by the Department of Community Affairs, are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Board of County Commissioners of Martin County (hereinafter referred to as "Martin County"), is a political subdivision of the State of Florida. Petitioner, 1000 Friends of Florida, Inc. (hereinafter referred to as "1000 Friends"), is a Florida not-for-profit corporation. The corporate purpose of 1000 Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. Respondent, City of Stuart (hereinafter referred to as the "City"), is a municipal corporation located within Martin County. Respondent/Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). No evidence concerning Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., was presented. Standing. Martin County owns real property located within the jurisdiction of the City. Although Martin County is also an "adjoining local government," the evidence failed to prove that the amendments at issue in these cases will produce "substantial impacts" on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within Martin County's jurisdiction. There has been a negative impact on Martin County's ad valorem tax base by the annexation of properties formerly under its jurisdiction. Those impacts, however, were caused by the annexation of the properties and not by the amendments at issue in this case. Additionally, those impacts did not cause any need for "publicly funded infrastructure." There may also be some impact as a result in the change in land use designations for some of the annexed property. Martin County's conclusion about the extent of the increase in commercial uses, however, was not supported by the evidence. The evidence also failed to prove that any of the text amendments at issue in these cases will have a negative impact on Martin County's need to provide publicly funded infrastructure. The evidence also failed to prove that the reduction of land subject to Martin County's municipal service taxing district and any resulting decrease in taxable values with the district will cause Martin County to provide additional publicly funded infrastructure. Finally, the evidence failed to prove that Martin County has designated any areas "for protection or special treatment within their jurisdiction" or that there will any "substantial impact" on such areas. Martin County made oral and written comments to the City during the adoption of the amendments at issue in these cases. 1000 Friends, since its formation, has had approximately 6,000 members in Florida. Members from Martin County and the City have totaled approximately 835 and 235 persons, respectively. Martin County and City members constitute a substantial percentage of 1000 Friends' total membership. 1000 Friends' corporate purposes include the representation of its members in legal and administrative proceedings involving the Act. 1000 Friends' litigation committee specifically authorized its participation in these proceedings. The type of relief sought by 1000 Friends in these cases is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made written comments to the City during the adoption of certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Martin County and 1000 Friends are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. 1000 Friends' standing is limited, however, to standing to challenge certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and text amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., failed to prove its has standing to participate in this proceeding. General Information About Martin County and the City. Martin County is a relatively small county located in the central southeast portion of Florida. Martin County is abutted on the north by St. Lucie County, on the west by Lake Okeechobee and a small portion of Okeechobee and Glades Counties, on the south by Palm Beach County, and on the east by the Atlantic Ocean. Martin County has a population of approximately 118,000 permanent residents. The population increases by 32 to 34 percent during the fall and winter. Martin County has the third highest per capita income in Florida. There are four municipalities in Martin County, including the City. The City is located on the Atlantic Ocean at the mouth of the St. Lucie River, which divides the City into two land masses. Most of the City is located south and east of the St. Lucie River. A small part of the City is located just to the north of the St. Lucie River. The north and south portions of the City are connected by the Roosevelt Bridge. The City is connected to Palm City to the west by the Palm City Bridge. The City has a population of approximately 14,000. During the day the population of the City increases significantly to an estimated population of between 25,000 and 30,000. Because of the City's relatively small population and the large influx of persons traveling to the City during the day, the City has a need for a significant amount of ad valorem taxes. More than half of the City's ad valorem property taxes comes from commercial property located in the City. In November 1996 commercial land use in the City accounted for approximately 24 percent of the City's land area. The City is the only full-service incorporated municipality in Martin County. It is the county seat for Martin County and serves as the center of legal, medical, social, commercial, and governmental activities in Martin County. The City has recently characterized itself as follows: For most of its history the character of Stuart was one of low to moderate intensity development in a waterfront community, with a small town feel. A four-story height limit and 10-unit density limit for most residential building were the two main forces that continue this character. In addition, Stuart has long been a hub for Martin County, home to many public and private institutions and businesses. As a result, the percentage of commercial, institutional, and public land in the City was higher than it would be in a city that did not serve as a hub. This role was evident in 1991, and a balance between the residential needs of the citizens of Stuart and the sometimes competing, sometimes complementary needs of those hub-related land uses seemed to drive the 1991 Future Land Use Element. It was recognized at Plan adoption that Stuart was near build-out, and barring further major annexations, would have limited vacant land remaining for new development. City's Evaluation and Appraisal Report, Martin County Exhibit 11 at page 33. Prior to 1997, approximately 2,800 acres of land were located within the jurisdiction of the City. Compared to the rest of Martin County, the City is relatively modest economically. Per capita income in the City is approximately 80 percent of the Martin County-wide average per capita income. Housing in the City consists of approximately 6,300 units. Two-thirds of the City's housing stock is multi-family. Approximately 92 percent of the multi-family housing stock is valued at less than $70,000.00. Approximately 69 percent of the other third of the City's housing stock, which consists of single-family housing, is valued at less than $70,000.00. The median value of owner-occupied housing in the City has been growing at a much slower rate than Martin County, neighboring counties, and the State as a whole. Between 1980 and 1990, the median value of owner-occupied housing in the City increased 56 percent while in Martin County the median value increased 112 percent, in Indian River County 69 percent, in Palm Beach County 77 percent, in St. Lucie County 66 percent, and in the State of Florida 68 percent. Because of the relatively low value of the City's housing stock, ad valorem taxes generated from housing is relatively low. The U.S. 1 Corridor. One of the main thoroughfares in Martin County is United States Highway 1, "Southeast Federal Highway" (hereinafter referred to as "U.S. 1"). U.S. 1 runs north-south through the City. It crosses the St. Lucie River via the Roosevelt Bridge. Land located within unincorporated Martin County along U.S. 1 north of the Roosevelt Bridge almost to the St. Lucie County line is mostly developed or approved for development. Development includes major retail stores such as Target, Sports Authority, Barnes & Noble Bookstore, Office Max, Marshall's, Service Merchandise, PetSmart, Home Depot, Lowe's Home Improvement Center, and grocery stores. There are also many smaller retailers located in strip commercial shopping centers. Most of the development has been permitted during the past five to six years by Martin County. The area to the west and northwest of property annexed by the City north of the Roosevelt Bridge during 1997 and 1998 includes Treasure Coast Mall, strip shopping centers, offices, restaurants, and single-family housing at a density of four to five units per acre. The area to the east and northeast of the property annexed by the City north of the Roosevelt Bridge includes single-family housing at a density of four units per acre, multi- family housing, and commercial and industrial property. The area to the north of the property annexed by the City north of the Roosevelt Bridge includes a development of regional impact known as "West Jensen." West Jensen runs from Jensen Beach Boulevard north to the St. Lucie County line. By 2003, when the project is projected to be fully developed, West Jensen will include 260,000 square feet of limited industrial space, 729,000 square feet of general commercial space, 23,000 square feet of limited commercial space, 235,000 square feet of office space, 200 hotel rooms, 931 residential units, and four golf courses. The area to the immediate south of the City is fully developed. Along U.S. 1 there are large shopping centers, restaurants, car dealerships, strip shopping centers, single-family housing of four to five units per acre, and condominiums. The Martin County Airport abuts U.S. 1 on the east. The area to the west of the City, Palm City, is fully developed. Growth of the City Through Annexation. To the extent that the City grew during the 1970's, it did so through annexation. Subsequent to the 1970's, however, the City turned from annexation and focused on redevelopment of the City's downtown area and the eastern part of the City. Between 1988 and November 1996, the City only annexed 298 acres in 30 annexations. This amounted to an increase of only 18 percent in the geographic size of the City. Subsequent to late 1995, the City shifted its policy back to annexation as a means of growth. Of the 30 annexations the City was involved in between 1988 and November 1996, 19 took place in October 1995. In approximately 1996, the City performed an analysis of its projected revenues and expenditures through the year 2003. The City projected that its revenues would be less than its expenditures. Based upon more recent projections, which take into account recent City annexations, the City has projected that its revenues and expenditures should be about the same for the next eight to nine years. The City has projected that its revenues will increase as a result of ad valorem and sales taxes and other revenues which should be generated from the newly annexed properties. During the Spring of 1997, the City received a number of requests for voluntary annexation pursuant to Chapter 171, Florida Statutes. These requests were accepted by the City and the first 16 parcels were annexed in the Spring of 1997. During 1998, another 27 parcels were annexed through voluntary annexation. Between the spring of 1997, and the end of 1998 the City annexed a total of almost 1,200 acres, increasing the geographic area of the city by 48 percent. The City annexed 254.8 acres in 1997 and 934 acres in 1998. The first requests for voluntary annexations began shortly after Martin County determined that certain roads had no more capacity to sustain further growth. As a consequence of this determination, Martin County imposed a moratorium on new development that would impact U.S. 1 north of the Roosevelt Bridge and the area west of the City on the other side of the Palm City Bridge. Some of the parcels annexed by the City in 1997 and 1998, could not be developed because of the transportation concurrency problem Martin County determined it had. Although there was no direct testimony from owners of parcels annexed by the City during 1997 and 1998, as to the reason they sought voluntary annexation of their property by the City, it is clear that at least some of the voluntary annexations were influenced by Martin County's moratorium and the hope of property owners that the City would take sufficient actions to resolve the transportation concurrency problem on U.S. 1 to allow owners to develop their property. More significantly, the annexations were probably influenced by a perception of property owners that obtaining approval for development from Martin County was a more difficult process generally than obtaining approval through the City. During 1997, the level of service (hereinafter referred to as "LOS") standard selected by Martin County for roads under its jurisdiction was a LOS D. While the City ultimately modified its LOS for roads impacted by development of some of the parcels annexed during 1997 and 1998, the evidence failed to prove that the City's modifications were not based upon reasonable planning principles. The 1997 Small Scale Amendments. The City did not determine specifically how the 16 parcels it annexed during 1997 would impact the City of Stuart's Comprehensive Plan (hereinafter referred to as the "City's Plan") before it accepted the voluntary annexations. Pursuant to Section 171.062(2), Florida Statutes, the 16 parcels the City annexed in 1997 remained subject to the Martin County Comprehensive Plan (hereinafter referred to as the "County Plan") and Martin County's land development regulations until the City amended the City's Plan to incorporate the parcels into the City. In particular, the parcels remained subject to the County Plan until the City amended the City's Plan to assign appropriate land uses to the annexed parcels. Therefore, as the parcels were annexed, the City undertook efforts to amend the City's Plan to assign appropriate land use designations to the parcels. The first nine of the 16 parcels annexed by the City during 1997 took place on September 8, 1997. The parcels were annexed pursuant to the voluntary annexation procedure of Section 171.044, Florida Statutes. Each of the nine parcels consisted of less than ten acres of land. Simultaneously with the annexation of the parcels, the City adopted ten small scale amendments to the Future Land Use Map (hereinafter referred to as the "FLUM") of the City's Plan assigning land use designations under the City's Plan to the parcels. The small scale amendments adopted by the City on September 8, 1997 (hereinafter referred to as "1997 Small Scale Amendments"), were designated Amendments 97S-1 by the Department. The Department did not, however, review the amendments because they constituted small scale amendments exempt from review by the Department pursuant to Section 163.3187, Florida Statutes. On October 8, 1997, Martin County filed a Petition for Formal Administrative Hearing with the Division of Administrative Hearings contending that nine of the 1997 Small Scale Amendments were not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. The Petition was designated Case No. 97-4582GM. 1000 Friends did not challenge the 1997 Small Scale Amendments or intervene in Case No. 97-4582GM. Martin County alleged that the 1997 Small Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with Sections 163.3187(c)(1)(c) [sic] and 163.3187(c)(3)(c) [sic], Florida Statutes; They are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. The land use designations assigned to the parcels to which the 1997 Small Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. In two instances, the Kornbluh and Luce properties, the City's land use designations were virtually the same as Martin County's. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Small Scale Amendments relate and the rationale for the land use designations assigned to the parcels by the City: Kornbluh property (Parcel 1) This parcel consists of 1.4 acres. In the County, approximately half of the parcel was designated commercial/residential (COR), and the other half commercial. The parcel is surrounded by commercial land use to the north, south, east and west, and a portion of the western boundary abuts existing developed low density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1482-97. There is no substantive difference between the County's land use designation for the Kornbluh property and the City's land use designation. The same types of uses are permitted in both, such as gas stations, restaurants, bars, professional offices, veterinary offices, and other retail and commercial uses. 1st Christian Church property This parcel consists of approximately 2.8 acres and has an existing church on the property. In the County, the land use designation was low density residential. The property abuts some commercial property, some vacant property that was low density residential in the County but which has been changed to neighborhood special district in the City, a mobile home park, and some vacant land designated a medium density residential. Because the land has an existing church on the property, the City determined that institutional was a more appropriate land use designation. Thus, the City adopted an ordinance giving the property a land use designation of institutional pursuant to Ordinance No. 1494-97. City Cemetery property (Parcel 7) This parcel consists of 2.06 acres. Part of the property is used as a cemetery and the other part is vacant. In the County, the land use designation was commercial general. The City has given that part of the property that is used as a cemetery a land use designation of institutional pursuant to Ordinance No. 1501.97 and the vacant part a designation of commercial pursuant to Ordinance No. 1502.97. The City Cemetery property is at the intersection of Colorado Avenue and Monterey Road which is one of the most developed intersections in all of Martin County. The property is surrounded by commercial development and also a mobile home park. Luce property (Parcel 8) This parcel consists of approximately 4 acres. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1506-97. There is no difference between the City's and County's land use designation. The City considered a commercial land use designation as appropriate for the Luce property based on the existing use of the property and the surrounding land uses. Specifically, half of the property is currently used as a produce market and the property abuts commercial land use to the north and to the west. To the east, it abuts the old City landfill which is currently closed and to the south it abuts the Martin County jail. Mush property (Parcel 9A) This parcel consists of approximately 3 acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1509-97. The City considered the commercial land use designation as appropriate for the Mush property because it is fully developed as a contractor's showcase office. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. The City's land use designation of commercial is more restrictive than the County's land use designation of industrial. The County's industrial designation allows both industrial types of uses and commercial uses, such as a gas stations, professional offices, retail buildings, etc. The City's land use designation of commercial does not allow industrial uses. Treasure Coast Auction House property (Parcel 9B) This parcel consists of approximately 5½ acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1512-97. The City considered the commercial land use designation as appropriate for the Treasure Coast Auction House property because it is fully developed as a Scotty's store. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. As explained above in the findings of fact regarding the Mush property (9-A), the City's land use designation of commercial is more restrictive than the County's land use designation of industrial. Hospice property (Parcel 10) This parcel consists of approximately 10 acres. In the County, the land use designation was half low density residential and half commercial. The City has given it a land use designation of institutional pursuant to Ordinance No. 1515-97. The Hospice property is developed as a hospice facility and the owners have plans to expand the facility. The property abuts Indian Street, which is an existing two-lane facility which will become a four-lane facility. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Bailey property (Parcel 11) This parcel consists of approximately 10 acres and is currently vacant. In the County, the land use designations was half low density residential and half commercial limited. The City has given it a land use designation of commercial pursuant to Ordinance No. 1519-97. The Bailey property abuts Indian Street, which is an existing two-lane road which will become a four-lane road. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Since it is a commercial corridor, the City considered the commercial designation on the property to be more appropriate than low density residential. Armellini property (Parcel 12) This parcel consists of approximately 1.2 acres. In the County, the land use designation was industrial and the City has given it a land use designation of commercial pursuant to Ordinance No. 1522-97. The Armellini property is on the corner of U.S. 1 and Indian Street and is in close proximity to other commercial development. The types of uses permitted by the City's commercial category is similar to the types of uses allowed by the County's industrial category, such as gas stations, office buildings, restaurants, and bars. The 1997 Large Scale Amendments and the Future Land Use Element Amendment. On December 7, 1997, the City adopted an amendment to the text of the Future Land Use Element (hereinafter referred to as the "FLUE") of the City's Plan. This amendment added a new land use designation to the City's Plan: "Neighborhood/Special District." The amendment also added goals, objectives, and policies concerning the new land use category. The newly created Neighborhood/Special District allows mixed land uses, including neighborhood commercial, office, residential, and recreational. Mixed residential and non- residential uses either in the same building or on the same site are required for a Neighborhood/Special District. A Neighborhood/Special District must have at least 30 percent residential uses and at least ten percent non-residential (excluding recreational) uses. Parking must be clustered in separate pockets rather than located in one expanse, and pedestrian interconnections must be used. On December 8, 1997, the City annexed seven parcels of property by voluntary annexation. On the same date the City adopted nine FLUM amendments assigning land use designations to the annexed property consistent with the City's Plan. Each of the parcels to which the FLUM amendments applied consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The nine large scale amendments to the FLUM and the FLUE amendment adopted by the City in December 1997 (hereinafter referred to as "1997 Large Scale Amendments and the "FLUE Amendment," respectively), were designated Amendment 97-1 by the Department. The Department reviewed the 1997 Large Scale Amendments and the FLUE Amendment. In a Statement of Intent issued February 9, 1998, the Department found the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance." The Department's determination was based upon its conclusion that the new land use category and existing non-residential land use categories applied in the 1997 Large Scale Amendments lacked a density/intensity standard. On February 17, 1998, the Department filed a Petition of the Department of Community Affairs with the Division of Administrative Hearings. The Petition was designated Case No. 98-0794GM. Martin County was granted leave to intervene in Case No. 98-0794GM by Order Granting Intervention entered March 11, 1998. Martin County challenged the FLUE Amendment and the 1997 Large Scale Amendments. Martin County alleged that the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They can not be reasonably implemented; They cannot be accommodated by existing and planned infrastructure; They fail to establish intensities of use; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; and They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. 1000 Friends did not challenge the 1997 Large Scale Amendments or the FLUE Amendment. Nor did 1000 Friends intervene in Case No. 98-0794GM. The land use designations assigned to the parcels to which the 1997 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Hendry property (Parcel 3) This parcel consists of approximately 7½ acres. The property contains an existing fully developed office warehouse, and in the County the land use designation was commercial general. The parcel abuts commercial property to the north, south, and west, and to the east it abuts a mobile home park as well as a conservation easement within a walled, gated residential development. Because the existing use was a warehouse, the City determined that a more appropriate land use designation would be industrial and suggested this land use to the owner. The City adopted the industrial land use designation pursuant to Ordinance No. 1488-97. With regard to the Hendry property, there is no difference between the County's land use designation of commercial and the City's land use designation of industrial. The existing office warehouse on the property is permitted both in the County's commercial designation. Millenium property (Parcel 4) This parcel consists of approximately 24½ acres and is vacant. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1491-97. There is no difference between the County's commercial land use designation and the City's commercial land use designation. Wacha property (Parcel 6) This parcel consists of approximately 47 acres. In the County, the land use designation was part mobile home, part low density, part medium density, and part industrial. The owner of the property approached the City with the idea of building a mixed use village on the property. The City was supportive of this idea and worked with the Treasure Coast Regional Council to develop a new land use category, neighborhood special district, as well as refine the site plan to create the mixed use village concept. The neighborhood special district land use category was adopted pursuant to Ordinance No. 1498-97. Part of the property that was originally designated industrial in the County was designated commercial in the City pursuant to Ordinance No. 1497-97. The neighborhood special district land use category will allow the Wacha property to be developed as a traditional neighborhood development project. The proposed development will include a town square area with shops and restaurants on the ground floor, apartments on the second floor, and parking behind the buildings to create a pedestrian-friendly thoroughfare. The development also includes a home office district where people can live and work in the same building. The development also proposes a single family residential neighborhood clustered around a common green with garages to the rear, and the building set with front porches on the street. The City and County's land use designation for the Wacha property differ significantly. The City's land use designation requires a mix of uses, with not less than 30% residential and not less than 10% commercial or non-residential development within a given property. The County's land use designations are exclusive, so that each specific property can only be used for mobile home park or light industrial or medium density residential or low density residential. The County would not permit a mixed use development on this property. The Wacha property is part of the City's Community Redevelopment Area. The City determined that the neighborhood special district land use designation would further the intent and purpose behind the Community Redevelopment Area which is to encourage redevelopment of blighted areas. Dubner North property (Parcel 13), Republic Industries property (Parcel 14), Dubner South property (Parcel 15) The Dubner North parcel consists of approximately 48 acres, the Republic Industries property consists of approximately 11½ acres, and the Dubner South property consists of approximately 56 acres. In the County, the land use designation for each of the properties was industrial. The City has given the Dubner North property a land use designation of part commercial pursuant to Ordinance No. 1525-97 and part industrial pursuant to Ordinance No. 1526-97, the Republic Industries property a land use designation of commercial pursuant to Ordinance No. 1529-97, and the Dubner South property a land use designation of commercial pursuant to Ordinance No. 1532-97. The Dubner North, Republic Industries, and the Dubner South properties are bound by the railroad tracks to the east. To the north, south, and west, the properties are surrounded by either County industrial or commercial future land uses or City commercial land uses. The Remedial Amendments. Subsequent to the opening of Case No. 98-0794GM, the Department and the City entered into a Stipulated Settlement Agreement pursuant to Section 163.3184(16), Florida Statutes. Martin County declined to enter into the Stipulated Settlement Agreement. The City agreed to adopt remedial amendments which included text descriptions of various land use categories, including the Neighborhood/Special Districts category, and a table setting for residential densities and commercial intensities for land use categories created in the City's Plan. On August 24, 1998, the City adopted remedial amendments consistent with the Stipulated Settlement Agreement (hereinafter referred to as the "Remedial Amendments"). The Remedial Amendments were adopted by Ordinance No. 1646-98. The Remedial Amendments, designated Amendment 98-R1 by the Department, were determined to be "in compliance" by the Department. Upon the adoption of the Remedial Amendments and the determination that the Remedial Amendments were "in compliance," the parties in Case No. 98-0794GM were realigned as required by Section 163.3184(16)(f)1, Florida Statutes, to reflect that Martin County was challenging the Department's conclusion that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments, were "in compliance." Martin County also filed a Petition for Formal Hearing challenging the Department's determination that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments were "in compliance." That Petition was filed with the Division of Administrative Hearings on December 17, 1998. The Petition was designated Case No. 98-5501GM. 1000 Friends did not challenge the Remedial Amendments. Nor did 1000 Friends intervene in Case No. 98-5501GM. I. The 1998 Large Scale Amendments. Between April 13, 1998, and June 22, 1998, the City annexed 16 large parcels through voluntary annexation. On August 24, 1998, the City adopted 33 FLUM amendments assigning land use designations to the newly annexed parcels consistent with the City's Plan. Eleven of the FLUM amendments were small scale amendments pursuant to Section 163.3187, Florida Statutes (hereinafter referred to as the 1998 Small Scale Amendments). The 1998 Small Scale Amendments were not reviewed by the Department even though they were submitted to the Department with the other 22 FLUM amendments. The parcels to which the other 22 FLUM amendments related consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The 22 large scale amendments adopted on August 24, 1998 (hereinafter referred to as "1998 Large Scale Amendments), were designated Amendment 98-1 by the Department. The Department reviewed the 1998 Large Scale Amendments and found them "in compliance." Martin County and 1000 Friends filed separate Petitions for Formal Hearing with the Department challenging the determination that the 1998 Large Scale Amendments were "in compliance." The Petitions filed by Martin County and 1000 Friends were filed with the Division of Administrative Hearings on December 17, 1998. The Petitions were designated Case Nos. 98- 5503GM and 98-5510GM, respectively. Martin County alleged that the 1998 Large Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. 1000 Friends alleged that the 1998 Large Scale Amendments were not "in compliance" because they were adopted without intergovernmental coordination. The land use designations assigned to the parcels to which the 1998 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1998 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Pulte Homes property (Parcel F3), Vista A property (Parcel F5), Gibson property (Parcel F6), and Debartolo property (Parcel F24) The Pulte Homes parcel consists of approximately 312 acres. In the County, the land use designation was low density residential and high density residential. The City has given it a combination of conservation, pursuant to Ordinance No. 1549- 97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97. The Vista A parcel consists of approximately 9 acres and is vacant. In the County, the land use designation was commercial/office/residential (COR) and high density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1546-97. The Vista B parcel consists of approximately 44 acres and is vacant. In the County, the land use designation was low density residential and the City has given it a land use designation of low density residential pursuant to Ordinance No. 1553- 97. The Gibson parcel consists of approximately 100 acres. In the County, the land use designation was low density and commercial general. That part of the property that was designated commercial in the County was given a commercial land use designation in the city pursuant to Ordinance No. 1557-97. That part of the property that was designated low density residential in the County was given a combination of low density residential and conservation (Ordinance No. 1558-97), and multi-family residential (Ordinance No. 1559-97) pursuant to Ordinance No. 1549-97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97 in the City. The Debartolo parcel originally consisted of 205.90 acres. However, a portion of the parcel has been reannexed by the City to cure the defects found by the circuit court. The County's land use designation was a mixture of low, medium and high density residential. The City has given it a combination of part neighborhood special district pursuant to Ordinance No. 1618-97, part low density residential and conservation pursuant to Ordinance No. 1620-97, and part multi-family and conservation pursuant to Ordinance No. 1622-97. These five parcels (Pulte, Vista A, Vista B, Gibson, and Debartolo) contain a series of wetlands that form a slough that drains through Arant's swamp, or Haney Creek, and into the St. Lucie River. In terms of long- range planning, the City believed it best to implement a series of greenways and flow-ways to interconnect those wetlands and preserve areas to help clean up a non-point source pollution problem that was occurring in the St. Lucie River. Thus, recommending an appropriate land use designation for these properties, the City considered the pattern of wetlands in the area that form the slough and proposed a conservation land use designation for parts of some of the properties. In addition, the City received a grant from the Florida Communities Trust to purchase 84 acres of Arant's swamp or Haney Creek. This area is south of the five properties described above. The 84 acres form a flow- way for all of the water flow that comes from north to south and ultimately into the St. Lucie River. The City is proposing to construct a greenway which would connect the wetlands in the five properties described above so that water can flow unimpeded into Arant's swamp and ultimately into the St. Lucie River. Those connections would be accomplished at site planning and connected under roadways with staged culverts so animals can travel along the sides and water can flow through the middle. Comparing the City and County's land use designations for these five parcels, the land use designations adopted by the City are more appropriate than the County's land use designations and will result in a better use of the properties. For instance, by changing some of the land uses from low density residential in the County to conservation in the City, the environmentally sensitive areas will be preserved in perpetuity. In addition, by changing the County's high density residential use for the Pulte Homes property to neighborhood special district in the City, the development will require a mix of uses including some commercial which will be interconnected in a pedestrian fashion to the existing single family home development which lies to the east. This will lessen the need for additional vehicular trips and encourage alternative forms of transportation. Stewart property (Parcel F11), Madyda property (Parcel F12), First Eastern Residential property (Parcel F13), First Eastern property (Parcel F14), and SK Partner's I property (Parcel F15) The Stewart parcel (F11) consists of approximately 15 acres of land and is vacant. In the County, the land use designation was a mix of low and medium density residential, and commercial/office/residential (COR). The City has given it a land use designations of multi-family residential pursuant to Ordinance No. 1576-97. The Madyda parcel (F12) consists of approximately 6½ acres. The County's land use designation was a mix of medium density residential and commercial/office/residential (COR). The City has given it a land use designation of commercial pursuant to Ordinance No. 1579-97. The First Eastern Residential parcel (F13) consists of 50 acres and is a fully developed low income housing project. The County's land use designation was medium density and low density residential. The City has given it a designation of multi-family pursuant to Ordinance No. 1582-97. The First Eastern parcel (F14) consists of 32.20 acres and is vacant. The County's land use designation was a mixture of Commercial pursuant to Ordinance No. 1585-97. The SK Partners I parcel (F15) consists of 18.94 acres and is vacant. The County's land use designations was commercial general. The City has given it a land use designation of commercial pursuant to Ordinance No. 1588-97. There is no difference between the City's and the County's land use designations. Sunbelt Partners/Stetson property (Parcel F17), Sunbelt Partners property (Parcel F18), SK Partners II property (Parcel F190) The Sunbelt/Stetson parcel (F17) consists of approximately 25½ acres, the Sunbelt Partners parcel (F18) consists of approximately 2.5 acres, and the SK Partners II parcel (F19) consists of approximately 38 acres. All three parcels are vacant. The City's original annexation of the Sunbelt Partners/Stetson parcels was invalidated by the circuit court. However, a portion of the parcel has been reannexed. The County's land use designation for the three parcels was primarily commercial, with a small amount of commercial/office/ residential. The City's gave all three parcels a land use designation of commercial pursuant to Ordinance Nos. 1615-97, 1612-97, and 1609-97. There is no real difference between the County's and the City's land use designations. Dubner East property (Parcel F22), Sellian property (Parcel F22), Dubner West property (Parcel F23) The Dubner East parcel consists of approximately 11.5 acres, the Sellian parcel (F22) consists of approximately 4 acres, and the Dubner West (F23) consists of approximately 10 acres. Dubner East is vacant, the Sellian property is developed as an office building and indoor assembly, and the Dubner West property is partially developed as an office building. The County's land use designation for each of the parcels was industrial. The City has given each a land use designation of commercial pursuant to Ordinance Nos. 1600-97, 1603-97, and 1606-97. The three properties abut County industrial land uses, although for the most part, the properties are developed as commercial uses. The properties also abut City commercial land uses. The City's land use designation is more restrictive than the County's because the County industrial allows both industrial and commercial uses while the City's commercial designation allows only commercial uses. The City's Evaluation and Appraisal Report Amendments. Consistent with Section 163.3191, Florida Statutes, the City conducted an Evaluation and Appraisal Report, including suggested amendments to the City's Plan. On August 24, 1998, simultaneously with the adoption of the 1998 Large Scale Amendments and the 1998 Small Scale Amendments, the City adopted amendments to all elements of the City's Plan (hereinafter collectively referred to as the "EAR Amendments") based upon the recommendations of the Evaluation and Appraisal Report. The EAR Amendments include density and intensity standards adopted as part of the Remedial Amendments to the Future Land Use Element of the City's Plan. The EAR Amendments revise the schedule for capital improvements and establish new concurrency requirements as part of the Capital Improvements Element of the City's Plan. The EAR Amendments set out the steps the City will take to coordinate the City's Plan and its implementation with other agencies and entities as part of the Intergovernmental Coordination Element of the City's Plan. The EAR Amendments revise LOS standards for transportation in the Transportation Element of the City's Plan The EAR Amendments were reviewed by the Department simultaneously with the 1998 Large Scale Amendments and found to be "in compliance." The EAR Amendments were designated Amendment 98-ER1 by the Department. The 1998 Small Scale Amendments were also submitted to the Department with the 1998 Large Scale Amendments and the EAR Amendments but were ultimately withdrawn by the City at the request of the Department. Martin County and 1000 Friends also challenged the EAR Amendments in their Petitions challenging the 1998 Large Scale Amendments filed in Case Nos. 98-5503GM and 98-5510GM, respectively. Martin County alleged that the EAR Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent with Chapter 9J-5, Florida Administrative Code. Martin County did not allege which specific elements of the City's Plan amended by the EAR Amendments were being challenged in its Petition. It merely alleged that "Stuart's comprehensive plan amendments" are not in compliance. In the Joint Proposed Order filed by Martin County and 1000 Friends, specific portions of the Intergovernmental Coordination Element (Policies A1.13 through A1.23, Policy A2.4, Policy A7.3, Objective 8, and Policies A8.1 through A8.11), the FLUE (Policies B1.2 through B1.4), and the Capital Improvements Element (the selection of LOS E) are cited. The specific objective and policies cited in the Joint Order are hereby incorporated into this Recommended Order by reference. Additionally, the Future Annexation Map adopted as part of the EAR Amendments by the City is cited in the Joint Proposed Order. The Future Annexation Map includes 8,000 additional acres which are projected to be annexed into the City by the year 2015. 1000 Friends' challenge to the EAR Amendments is limited to a challenge to the City's Intergovernmental Coordination Element. Data and Analysis. At the time that all of the amendments at issue in this proceeding were adopted there was more than adequate data and analysis to support all of the amendments. The data and analysis relied upon by the City in adopting the 1997 Small and Large Scale Amendments, the FLUE Amendment, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments was professionally acceptable. The testimony of Martin County's expert planner concerning data and analysis was not persuasive. That testimony was not based upon a complete review of the data and analysis relied upon by the City and the Department. The evidence presented by Martin County concerning data and analysis focused largely on the fact that the property to which the 1997 Small and Large Scale Amendments and the 1998 Large Scale Amendments related had been annexed before the accumulation of all the data and analysis relied upon in support of the amendments. That evidence was irrelevant because the Act and the rules promulgated thereunder do not govern annexations; they govern plan amendments and require that the data and analysis be available at the time a plan amendment is adopted and not at the time of annexation. Data and analysis were required for the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments, not to support the need for the annexed property, but to support the City's choice of land use classifications assigned to the annexed property. There were ample data and analysis to support the City's choices. Once the properties at issue in this proceeding were annexed consistent with Chapter 171, Florida Statutes, the City began the process of considering the amendments to the City's Plan necessary to accommodate the annexations and bring them under the City's Plan. While the evidence did prove that the City now has approximately 33 years of commercial property to meet the needs of the City during the 20 years of the City's Plan, there is no requirement in the Act or the implementing rules that a need for annexed property be present before annexation occurs. The commercial property located in the City as a result of the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments is not significantly different from the amount of commercial property which existed prior to the amendments. Most of the annexed property was designated commercial or industrial by the County Plan. Industrial uses under the County Plan include many of the same uses of commercial property under the City Plan. Under these circumstances, the City made the most reasonable planning decision by classifying the annexed property consistent with surrounding land uses and Martin County's prior land use designation of land use for the property. The City completed a needs analysis as part of its review and revision of the City's Plan through the EAR Amendments. That analysis was based upon data available at the time of the EAR Amendments. The data was also available at the time the 1997 Small Scale Amendments, the 1997 and 1998 Large Scale Amendments, the FLUE Amendment, and the Remedial Amendments were adopted. The City's needs analysis included an allocation of land uses to the land use categories designated in the City's Plan. Although the allocation of land resulted in an allocation of more commercial land than may be required during the life of the City's Plan, the evidence failed to prove that such a surplus results in any under allocation of land to other classifications. Approximately 150 acres of the property annexed by the City during 1997 and 1998 were re-designated commercial by the City. Eighteen of those acres have already been developed, leaving an additional 132 acres of commercial land in the City. The evidence failed to prove that this increase of acreage is significant. Evidence presented by Martin County as to the increase in commercial property was not persuasive. In actuality, the increase in property designated commercial as a result of City's annexations amounts to approximately 48 acres. There were a total of 35 parcels designated commercial by the City, including the 1998 Small Scale Amendments. Most of those parcels were already developed in whole or in part with commercial, commercial-like, or industrial land uses. The uses of property classified industrial are also substantially similar to the uses allowed for commercial to result in little discernable effect on the supply of commercial property in the City. The only vacant parcels assigned a land use designation of commercial by the City that were not classified commercial or industrial by Martin County were referred to at hearing as parcels 1, 11 F4, F7, F12, and F14. Parcel 1 consisted of 1.4 acres. Approximately half of parcel 1 was designated commercial and the other half was designated commercial/office/residential. At most, this amounts to an increase of .7 acres of commercial. Parcel 11 consists of ten acres, parcel F4 consists of nine acres, parcel F7 consists of 5.06 acres, parcel F12 consists of 6.67 acres, and parcel F14 consists of 32.20 acres. Half of parcel F14 was classified as commercial by Martin County. The evidence also proved that the possible intensity of use for the property annexed by the City during 1997 and 1998, when compared with the possible intensity of use under the County Plan is less under the City's land use classifications. Martin County's expert testimony concerning increases in intensity was not credible. That testimony was based upon small scale parcels 5, 10, and 11, and large scale parcels 6, F6, and F24. Parcel 5 is already developed as 1st Christian. Parcel 10 is partially developed and the testimony concerning Martin County's land use designation for the property was incorrect. For parcel 6, the Wacha property, the testimony by the Martin County expert concerning Martin County's land use designation for part of the property was incorrect. The portion of the property designated commercial by the City was classified as industrial by Martin County. For parcel F6, the Gibson property, only a fourth of the property was designated multi-family. The rest of the property was given a land use designation that is the same or less intense then that allowed by the County. For parcel F24, the Debartolo property, Martin County's land use designation was a combination of low, medium, and high density residential and not just low density residential as testified by Martin County's expert witness. Most of the property was low density residential under the County's Plan and remained low density residential under the City's Plan. The calculations concerning the increase in intensity of use made by Martin County's expert witness were flawed and not credible, as explained in findings of fact 123 through 125. Martin County's assertion that the Remedial Amendments are not supported by data and analysis because of the increase in intensity of commercial property is rejected. In addition to the question of data and analysis to support the land use classifications assigned to the annexed property by the City, Martin County has suggested that there is insufficient data and analysis concerning how public facilities will be provided to the annexed property. The evidence failed to support this assertion. At the time of the 1997 and 1998 Small and Large Scale Amendments the City did not perform a concurrency analysis. Concurrency analyses are required at the time of site plan review or other application for another development permit. Therefore, neither the Act nor the City's Plan required a concurrency analysis. A transportation analysis involves transportation planning for an extended period of time and not planning for individual parcels. Capital facilities and available capacity for a five-year period are looked at in a transportation analysis. Concurrency analyses, on the other hand, are performed on individual parcels of property at the time of proposed development of those parcels. Neither a transportation analysis nor a concurrency analysis is required when a local government designates a general land use classification for a parcel of property. Martin County has asserted that the City's decision to adopt a LOS E and to "maintain" the actual existing LOS for two segments of U.S. 1 and State Roads 707 and 714, both of which are projected to have LOS F within the next five years in light of the moratorium it has imposed on development along U.S. 1 supports its argument that the FLUM amendments are not supported by data and analysis. They assert that evidence presented by the City's expert transportation engineer cannot be considered data and analysis because it was prepared after the FLUM amendments. This assertion is rejected. While the analysis may not have been available, the data was. More importantly, the testimony of the City's expert engineer may be relied upon to refute Martin County's assertion that there existed a transportation concurrency problem at the time the FLUM amendments were adopted. Martin County based its conclusion on an outdated Florida Department of Transportation table adopted as part of the County's Plan. That table lacked a footnote that cautioned against anything other than very general reliance on the table. Martin County's assertions concerning transportation concurrency were also refuted by the more accurate analysis performed by the City's expert engineer. Based upon his analysis, which was unrefuted by credible evidence, there is in fact no LOS deficiency not addressed by the City's Plan. The difference between the LOS adopted by the City and Martin County's LOS is not significant. The reports of the City's expert transportation engineer were sufficient data and analysis to support the EAR Amendments to the Capital Improvements and Transportation Elements. The LOS selected by the City, LOS E, is the most efficient use of the City's arterial roadways under current conditions. The evidence failed to prove that there were inadequate data and analysis to support Policy A1.1 of the FLUE. The evidence failed to prove that there were inadequate data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms. Intergovernmental Coordination. In May 1997, the City notified Martin County that it was considering a series of voluntary annexation requests it had received. The City and Martin County have entered into formal and informal agreements dealing with the provision of a number of services, including water and sewer, emergency rescue, solid waste, and law enforcement. Impact fees are dealt with by interlocal agreement pursuant to which the City collects impact fees for library services, regional parks, and county roads on behalf of the Martin County. Following the City's notification to Martin County of the voluntary annexation requests it had received, City staff and the Director of Public Works for Martin County met to discuss the provision of water and sewer service to the annexed areas. An agreement was reached between the City and Martin County as to which entity would be responsible for water and sewer services to each parcel to be annexed. Discussions between City and Martin County staff concerning responsibility for maintenance of roads were also held, including discussions at meetings of the Metropolitan Planning Organization Technical Advisory Committee. The Metropolitan Technical Advisory Committee was established to provide for intergovernmental coordination in Martin County. Issues concerning road maintenance were resolved. Beginning essentially at the time of the notice to Martin County of the voluntary annexation requests the City had received, Martin County attempted to prevent the annexations. Although Martin County cooperated to resolve some of the problems that resulted from the annexations, Martin County prepared an emergency agenda item directing staff to evaluate the annexations and seek ways of preventing the annexations. Martin County staff reports concerning the proposed annexations indicated few problems that would result from the annexations. The reports were submitted to the City by Martin County. Martin County indicated, however, that it would be conducting further analysis on potential traffic impacts. Martin subsequently reported to the City that it had further concerns and would be attending a City scheduled workshop to be held in July 1997. No one from Martin County attended the workshop held in July or the workshop held by the City in September 1997. City staff reviewed all of Martin County's comments, notified the City Commission of the comments, and took the comments into consideration in making recommendations concerning the annexations and amendments to the City's Plan to the City. On September 16, 1997, the City notified Martin County of further requests for voluntary annexation. City staff thereafter attempted to schedule meetings with Martin County staff to discuss these annexations. Additional discussions were held with Martin County concerning utilities. These discussions resulted in agreements concerning the provision of utilities to the annexed parcels. Discussions concerning stormwater were also held between the City and Martin County. Transportation issues were discussed at Metropolitan Planning Organization Technical Advisory Committee meetings. Martin County wrote letters to the City and made oral comments concerning the FLUM Amendments. Martin County raised concerns over urban sprawl, concurrency, and intergovernmental coordination. Martin County also filed challenges to the City's annexations resulting in a number of civil actions between the City and Martin County. As a result of these actions and Martin County's attempts to prevent the annexations, relations between City and Martin County staff became strained. It became increasingly difficult for staff to work together to resolve common issues. In November 1997 Martin County sent a letter to the City expressing concerns over the late 1997 annexations involving urban sprawl and transportation concurrency. These comments were considered by the City. Martin County staff attended an August 1998 meeting at which the City adopted the FLUM Amendments relating to the late 1997 annexations. These comments were considered by the City. While the City and Martin County did not come to a consensus over all issues relating to the FLUM amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the diametrically opposing positions of the two governments concerning the annexations which gave rise to the amendments at issue in these cases, it is doubtful that any further coordination between the City and Martin County could have resolved the issues between the City and Martin County. Prior to adopting the EAR Amendments and the 1998 Large Scale Amendments, the City's planning consultant reviewed the FLUM amendments that had already been adopted, the EAR Amendments, and the additional FLUM amendments the City was considering. The consult obtained data from Martin County concerning population and traffic. Efforts to obtain information from Martin County, however, were by this time difficult. The City even had to result to a public records request from Martin County to obtain some information. Again, while the City and Martin County did not come to a consensus over all issues relating to the EAR Amendments and the 1998 Large Scale Amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the state of deterioration of the relationship between the City and Martin County by the time these amendments were considered and adopted by the City, it is doubtful that any further coordination between the City and Martin County would have resulted in any improvement in the EAR Amendments or the 1998 Large Scale Amendments. In addition to the fact that the intergovernmental coordination between the City and Martin County under the circumstances of this matter was adequate, any lack of coordination did not result in any substantial issues concerning the amendments to the City's Plan not being resolved. The evidence in these cases has not supported Martin County's or 1000 Friends' alleged deficiencies with the amendments. Evidence concerning intergovernmental coordination or the lack thereof before and during annexation of the parcels to which the FLUM amendments in these case relate was irrelevant. Nothing in the Act or the rules promulgated thereunder requires intergovernmental coordination on annexations. The City adopted an Intergovernmental Coordination Element as part of the EAR Amendments. The Element includes policies which relate to procedures for dealing with coordination concerning the development of the annexed areas. Those policies are quoted in the City's Proposed Order at finding of fact 149 and are incorporated herein by reference. The Intergovernmental Coordination Element adopted by the City does not meet the requirements of Section 163.3177(6)(h), Florida Statutes. It does, however, meet the requirements of Sections 163.3177(4)(a) and (10)(b), Florida Statutes, and Rule 9J-5.015, Florida Administrative Code. The requirements of Section 163.3177(6)(h), Florida Statutes, must be met by local governments no later than December 31, 1999. Pursuant to Section 163.3177(6)(h)4., Florida Statutes, the Department adopted Rule 9J-40, Florida Administrative Code, providing, in part, that the City submit an intergovernmental coordination element in compliance with Section 163.3177(6)(h), Florida Statutes, no later than June 1, 1997, and that the element be adopted no later than December 31, 1997. In a publication of the Department called the Summer 1998 Community Planning publication, the Department informed the City to ignore Rule 9J-40, Florida Administrative Code, and submit its intergovernmental coordination element no later than December 31, 1999. The City complied with this direction from the Department. The Department did not repeal Rule 9J-40, Florida Administrative Code. Although Section 163.3177(6)(h)4., Florida Statutes, authorizes local governments to comply with Section 163.3177(6)(h), Florida Statutes, earlier than December 31, 1999, the City has not opted to do so. Internal Inconsistency. Goal A of the FLUE provides that the City will "[m]aintain and enhance its small town waterfront character." Although the City has increased its size by 48 percent, it has not increased its "waterfront." None of the amendments to the FLUM at issue in these cases involve property located on the City's waterfront. The evidence also failed to prove that a 48 percent increase in the size of the City in and of itself is contrary to the City's small town character. Finally, the impact on the City's character is a result, not of the designation of land use categories for the annexed property, but from the annexation itself. Although annexation is the catalyst for the amendments being challenged in this proceeding, the fact of the annexation cannot be the issue. Policy A.3.2 of the FLUE provides that the City should "direct development to areas already served by adequate government utilities, services and schools . . . ." While some of the roads serving many of the annexed parcels were determined to be over-utilized, that over-utilization was based upon Martin County's LOS. Based upon the City's newly established LOS E, there are adequate road services for the annexed properties. The delivery of other utilities, services, and schools to the annexed properties has been coordinated between the City and Martin County or those services are already being provided. Objective B.3 of the FLUE provides that the City will discourage urban sprawl and continuous linear development along major roadways in order to achieve a compact urban form. While the annexed parcels are located along U.S. 1, their designated land uses pursuant to the amendments at issue are essentially consistent with their present uses or designated land uses. Little change in the form of development of the annexed parcels will occur as a result of the amendments. Therefore, the FLUM amendments do not increase linear development. Rather, they recognize it. As discussed, infra, the annexed properties do not constitute urban sprawl. As amended by the EAR Amendments, Objective B.1 of the FLUE provides that the City will "[d]iscourage urban sprawl by planning for urban infill and redevelopment of lands located within Stuart." The FLUM amendments constitute urban infill and are consistent with Objective B.1 as amended by the EAR Amendments. Objective B.3 of the FLUE requires a commitment of the City to the promotion of patterns of land use that are compatible and convenient to residents, businesses, and visitors, and the avoidance of the wasteful use of land. The evidence failed to prove that the FLUM amendments are inconsistent with this objective. Again, there is little difference in the uses of the property which is the subject of the FLUM amendments before and after their annexation. Policy A.8 of the Infrastructure Element of the City's Plan requires that the City will maximize the use of existing facilities and discourage urban sprawl through its annexation policy. Policy A.3.3, Objectives A.5, A.6, A.7, and A.9, and Policy A8.1 also provide similar guidance to the City. As discussed, infra, the FLUM amendments do not fail to discourage urban sprawl. The FLUM amendments also are not inconsistent with these provisions to the extent that they require the City to maximize the use of existing services. Policy A1.1 of the Housing Element of the City's Plan provides that the City must designate adequate residential land to accommodate projected need for housing. The most up to date analysis of existing population data suggests that there is adequate housing to meet the City's need for housing through the year 2015. The evidence failed to prove that anything about the amendments at issue in these cases are inconsistent with this policy. The evidence failed to prove that the amendments at issue in these cases are inconsistent with any provision of the City's Plan. The consistency of the foregoing goals, objectives, and policies with the City's Plan were the only ones specifically addressed in the Joint Proposed Order. The City also addressed the consistency of a number of other goals, objectives, and policies with the City's Plan. Those findings of fact (182-190, 193-195, 197, and 200-204) are hereby accepted and incorporated into this Recommended Order by reference. Urban Sprawl. The areas annexed by the City, while including some vacant land, are not located in a rural or predominately rural area. Instead, the annexed parcels are all located in an area designated in the County's Plan as the "Primary Urban Service Area." An independent evaluation of the properties confirms their urban location. The indicators of urban sprawl listed in Rule 9J- 5.006(5), Florida Administrative Code, do not apply to the annexed parcels when considered "within the context of features and characteristics unique to each locality." The testimony of Martin County's witnesses concerning the "linear pattern" of development evidenced by the annexed parcels failed to take into account the character of surrounding and abutting, unincorporated properties and the location of all the parcels within the "Primary Urban Service Area" established in the County's Plan. Testimony offered by Martin County concerning urban sprawl was also not credible because Martin County's expert witness did not complete the land use analysis of Rule 9J-5.006(5)(h) through (j), Florida Administrative Code, because she failed to evaluate local conditions and development controls. Natural Resources. The evidence did not prove that any of the amendments at issue in these case fail to adequately protect natural resources. Availability of Infrastructure. As explained, supra, the City and Martin County coordinated the continued provision of most public utilities and services to the annexed parcels. Continued water, sewer, emergency rescue, law enforcement, and solid waste disposal services for the annexed parcels were all coordinated between the City and Martin County. Water and sewer services and recreational facility needs were analyzed by the City and found to be adequate. The evidence failed to prove that any necessary infrastructure is not available or will not be provided by the City. The Future Annexation Map. The City's Evaluation and Appraisal Report included a Map of Future Annexation. The Map of Future Annexation identified a small area south of the City for future annexation over the next ten years. The areas actually annexed by the City during 1997 and 1998 involve a more extensive area than that identified on the Map of Future Annexation. The areas identified on the Map of Future Annexation were areas which the City believed it would likely desire to annex and did not take into account voluntary annexation. The Map of Future Annexation was not intended to exclude such voluntary annexations. The EAR Amendments also include a Future Annexation Area Map (hereinafter referred to as the "FAA Map"). The FAA Map identifies approximately 8,000 additional acres of land which the City may consider annexing through the year 2015. The FAA Map is not, however, intended to represent an area which the City intends to pursue for annexation. It simply identifies the maximum area within which the City intends to consider annexation. It is, in effect, intended as a limitation on annexations that the City would pursue. The evidence failed to prove that the FAA Map is not a reasonable boundary for the possible expansion of the City through the year 2015 by annexation. The State and Regional Plans. The evidence failed to prove that any of the challenged amendments are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes. The evidence failed to prove that any of the challenged amendments are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. The Strategic Regional Policy Plan for the Treasure Coast was not offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order dismissing Hospice Foundation of Martin & St. Lucie, Inc., as a party. IT IS FURTHER RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the 1997 Small and Large Scale Amendments, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of October, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1999. COPIES FURNISHED: Paul R. Bradshaw, Esquire Paul R. Bradshaw, P.A. 1345 Dupont Road Havana, Florida 32333 Gary K. Oldehoff, Esquire Martin County Attorney 2401 South East Monterey Road Stuart, Florida 34996 Terrell Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Post Office Box 5948 Tallahassee, Florida 32301 Robert C. Apgar, Esquire Yeline Goin, Esquire 902-A North Gadsden Street Tallahassee, Florida 32303 Carl Coffin, Esquire City of Stuart 121 South West Flagler Avenue Stuart, Florida 34994 Shaw Stiller, Assistant General Counsel Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Tim B. Wright, Esquire Louis E. Lozeau, Jr., Esquire Warner, Fox, Seeley, Dungey and Sweet, L.L.P. Post Office Drawer 6 Stuart, Florida 34995 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether plan amendments 00-1, 97-4, and 01-7 adopted by Ordinance No. 598 on September 25, 2001, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, Sally O'Connell (O'Connell), Donna Melzer (Melzer), and Martin County Conservation Alliance, Inc. (MCCA), contend that three amendments (Amendments 00-01, 01-7, and 97-4) to the Martin County Comprehensive Plan (Plan) adopted by Respondent, Martin County (County), are not in compliance. Amendment 00-01 makes certain textual changes to the Economic Element and Future Land Use Element (FLUE) of the Plan. Amendments 01-7 (also known as the Blydenstein amendment) and 97-4 (also known as the Seven J amendment) amend the Future Land Use Map (FLUM) by changing the land use designation on property owned by Intervenor, Dick Blydenstein (Blydenstein), and Seven J's Investments, Inc., from Mobile Home Residential and Medium Density Residential, respectively, to General Commercial. The parties agree that the validity of Amendments 01-7 and 97-4 is contingent on whether Amendment 00-01 is in compliance. On September 25, 2001, the County approved Ordinance No. 598, which adopted the foregoing amendments and three other FLUM amendments not relevant to this dispute. On November 16, 2001, Respondent, Department of Community Affairs (Department), the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments, issued its Notice of Intent to find the amendments in compliance. In addition, an external review of the amendments was conducted by the Department of Transportation (DOT), the Treasure Coast Regional Planning Council, the Department of State, and the Department of Environmental Protection. Except for minor objections by DOT, which were satisfactorily resolved, no objections were filed by any reviewing agency. On December 7, 2001, as later amended on December 20, 2001, Petitioners filed their Petition for Formal Administrative Hearing challenging the plan amendments. As reflected in their unilateral Pre-Hearing Statement, Petitioners contend that: The data and analysis for the amendments was not available to the public throughout the review and adoption process. The conclusions about supply and demand for commercial land uses that underlie the adoption of the amendments to the Economic and Future Land Use Elements, and the "Blydenstein" and "7J" [FLUM] Amendments are not supported by the best available and professionally acceptable data and analysis. Instead of a deficit of, and need for, land available for commercial uses, there is a surplus of land available for such uses. The "Blydenstein" and "7J" [FLUM] Amendments are not supported by data and analysis concerning the availability of infrastructure, the character of the land and the need for redevelopment. The approval of these FLUM amendments is inconsistent with several provisions of Ch. 163, Fla. Stat., Rule 9J-5, F.A.C., and the Martin County Comprehensive Plan. These allegations may be grouped into three broad categories: that the data and analysis was not available for public inspection throughout the adoption process; (2) that the plan amendments are not based on the best available, professionally acceptable data and analysis; and (3) that the Blydenstein and Seven J amendments are not supported by data and analysis as they relate to infrastructure, character of land, and need for redevelopment and thus are inconsistent with relevant statutes, Department rules, and Comprehensive Plan provisions. Although Petitioners have not addressed the first allegation in their Proposed Recommended Order, and have apparently abandoned that issue, in an abundance of caution, a brief discussion of that matter is presented below. The parties The Department is the state land planning agency responsible for reviewing and approving comprehensive plan amendments by local governments. The County is a political subdivision of the State and is the local government which enacted the three plan amendments under review. The overall size of the County is approximately 538 square miles, with agricultural uses on 72 percent of the land, residential uses on 16 percent of the land, public conservation uses on 6.5 percent of the land, and other uses (such as commercial, industrial, and institutional) on the remaining 5.5 percent of the land. The current population is around 125,300 residents. Blydenstein is the owner of the property that is the subject of Amendment 01-7. He submitted oral and written comments concerning Amendment 01-7 to the County during its adoption. Melzer is a former County Commissioner who resides and owns property within the County. She is also the chairperson and member of the board of directors for MCCA. Melzer presented comments in opposition to all three amendments during the time period beginning with the transmittal hearing for the plan amendments and ending with the adoption of those amendments. O'Connell has resided and owned property in the County since 1984. She presented comments to the County in opposition to Amendments 00-01 and 97-4 (but not to Amendment 01-07) during the time period beginning with the transmittal hearing for the plan amendments and ending with the adoption of those amendments. MCCA is a not-for-profit corporation first organized in 1965 and later incorporated in 1997 to advocate and promote the protection of the natural environment and quality of life in the County. The specific purpose of the corporation is to "conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, to maintain and improve the quality of life for all of the residents of Martin County, and to work to these ends." The corporation holds monthly meetings and annual forums to educate its members and others about issues related to the County's growth management. In prior years, it has actively participated in the development of the County's Comprehensive Plan and actively advocated for a public land acquisition program in the County. Presently, there are 104 individual members (of whom 99 reside in the County), 9 delegates at large, and 20 corporate and non-profit corporate members. The latter group includes such organizations as 1000 Friends of Florida, the Marine Resources Council, and the Citizens Stormwater Protection Group, who also have individual members residing within the County. The parties have stipulated that MCCA made comments to the County in opposition to the three amendments and that a substantial number of MCCA members own businesses within the County. The record also shows that MCCA's Board of Directors passed an appropriate resolution authorizing MCCA to file this action. Intervenor, the Economic Council of Martin County (ECMC), is a non-profit corporation whose mission is to dedicated to building a quality community which provides a healthy economy and protects the quality of life and to encourage the planned growth of the County. Like the MCCA, the ECMA has actively participated in the development of the Comprehensive Plan. Its members are individuals and businesses who reside, own property, and operate businesses within the County. The ECMC made comments to the County in support of the three amendments during the adoption of those amendments. The Amendments Amendment 00-01 represents a policy change by the County and amends the text of the Economic Element and FLUE to change the methodology for determining the need for commercial land within the County. Prior to the amendment, the County used a supply-demand equation based upon an "acreage per population" methodology to determine the amount of commercial land use necessary to serve the County. Under the old methodology, relevant portions of the FLUE, in conjunction with various provisions in the Economic Element, were used to establish a supply-demand equation that would determine whether the projected need for commercial lands by a future population of the County could be met by the current amount of designated lands. If the result of the equation was a surplus of commercial lands, that factor alone would require the denial of any request to redesignate land for commercial use, regardless of any other factor or circumstance. According to the repealed text of the Plan, this methodology produced a 1,131-acre surplus of commercial lands for the year 2010. The County proposes to use a more flexible policy and guideline type of review to make this need determination. Rather than projecting future demand for commercial land based solely on a numerical calculation, the County will make that determination based on a number of factors which must be weighed together, such as suitability, location, compatibility, community desire, and numerical need. It also proposes to change the manner in which numerical need is determined. Under the new methodology, the County will now use jobs and the amount of land needed to support those jobs. Put another way, commercial demand will be based on the projected number of jobs in the future. Using the new methodology, and after adding a 25 percent market factor, the County projects that in the year 2015 there will be a commercial land deficit of 112 acres. To accomplish this change in policy, the amendment alters the text of the Economic Element and FLUE by moving some language from the goals, objectives, or policies sections of the elements to preliminary sections that contained summaries of the data and analysis relied upon for each element. It also eliminates certain language from the goals, objectives, and policies of the elements, or from the preceding sections containing summaries of data and analysis, where such language was redundant and already appeared elsewhere in the Plan. In contrast to the former provision, the new amendment makes a finding that "the raw data appears to show that there is a significant deficit of commercial land necessary to accommodate economic needs if Martin County's ten year trend toward retail/service jobs continues." Amendment 01-07 pertains to a 27.8-acre triangular- shaped tract of land located less than a mile south of the center of the urban area of Indiantown, a small community in the southwestern part of the County. The property, which lies within the County's Primary Urban Service District, is bounded on the north by State Road 76, a major arterial roadway which connects Indiantown with Stuart, on the west by State Road 710, another major arterial roadway which connects Indiantown with Okeechobee and Palm Beach Counties, and on the east by Southwest Indiantown Avenue, which connects State Roads 76 and 710. The site is surrounded by vacant property, including Agriculture-designated land on three sides, and Estate Density Residential on the other. Immediately north of State Road 76 lies the C-44 Canal, a major waterway that connects Lake Okechobeee with the South Fork of the St. Lucie River and ultimately the Atlantic Ocean. A two-lane bridge (with no pedestrian walkway) provides automobile access from Indiantown to the Blydenstein property. The amendment changes the land use designation on the property from Mobile Home Residential (8 dwelling units per acre) to General Commercial. Even though the property is designated for use as a mobile home park, the property has been vacant and undeveloped for more than 20 years and is used principally for cattle grazing. The Seven J property consists of 2.99 acres located just west of Jensen Beach in the northern part of the County at the intersection of U.S. Highway 1 and Westmoreland Boulevard, both major arterial roadways. The property is adjacent to a partially built Development of Regional Impact (DRI) known as the West Jensen DRI and is virtually surrounded by other commercial uses. The amendment changes the land use designation on the property from Medium Density Residential (8 dwelling units per acre) to General Commercial. Presently, a nursery, older residential homes, rental property, and wetlands are found on the property; the nearby property is primarily made up of both developed and undeveloped commercial land. Availability of Data and Analysis Rule 9J-5.005(1), Florida Administrative Code, requires in part that "[a]ll background data, studies, surveys, analyses, and inventory maps not adopted as part of the comprehensive plan shall be available for public inspection while the comprehensive plan is being considered for adoption and while it is in effect." Relying upon this provision, Petitioners have contended in their Unilateral Prehearing Stipulation that the County failed to make such data and analysis "available to the public throughout the review and adoption process." At least one general source of data that was used by County experts was not physically present in the County offices for inspection by the public during the adoption process. That derivative data source was entitled "CEDDS 2000: the Complete Economic and Demographic Data Source" and was prepared by Woods and Poole Economics, a Washington, D.C. consulting firm. The data source was used by one of the County's experts (Dr. Nelson) "to generate [the] demand numbers" in his technical report. In order to inspect and review this data, Petitioners, like the County or any other interested person, would have had to purchase a copy from the authors. However, all of the data and analyses accumulated or generated by the County staff were available for public inspection during the time between the transmittal and adoption of the amendments under review. Further, Petitioners did not show how they were prejudiced by the failure of the County to maintain the Woods and Poole data in their offices. The Department does not construe the foregoing rule as narrowly as Petitioners, that is, that every piece of data relied upon by a local government must be physically present in the jurisdiction of the local government. Indeed, the Department has never found a plan amendment out of compliance solely on the basis that data was not physically located at a local government's offices. Rather, it construes the rule more broadly and considers the rule to have been satisfied so long as data and analyses are "available for public inspection," even if this means that derivative source data such as the Woods and Poole report must be purchased from out- of-state sources. Were the plan amendments based on the best available, professionally acceptable data and analysis? Petitioners contend that the plan amendments "are not supported by the best available and professionally acceptable data and analysis." As to this contention, Rule 9J-5.005(2)(a), Florida Administrative Code, sets forth a general directive that all plan provisions "be based upon relevant and appropriate data and analyses applicable to each element." In addition, the same rule requires that the data must be "collected and applied in a professionally acceptable manner." Petitioners contend that the County's collection of data to support the amendments, and its analysis of that data, was not professionally acceptable, as required by the rule. More specifically, Petitioners contend that the County undercounted the commercial land inventory used in projecting future need by omitting between 80 and 100 acres of undeveloped commercial land from the West Jensen DRI, by failing to count commercial development allowed in industrial- designated lands, and by failing to include 30 acres of land at the Witham Field airport which remains available for commercial development. They also contend that the County inadvertently failed to include more than 60 acres that were placed in the Commercial category by amendments to the FLUM in 1995 and 1996 and which remain undeveloped and available for new commercial development. In support of the amendments, the County submitted to the Department more than 1,000 pages of supporting materials and maps, including 384 pages related to the FLUM amendments, 642 pages of revised supporting data for the text amendments, and 89 pages of public comments. In choosing the sources of data to support the plan, the County used generally accepted, nationally available data as the basis for its review and revision of the Plan. After reviewing the foregoing material, the Department found such data and analysis to be relevant and appropriate. The County also generated extensive data from locally available information that is unique to the County, such as an inventory of the lands within the County that are designated for Commercial uses on the FLUM, but do not yet have any developed commercial uses on them. As to one of Petitioners' contentions, the County agrees that its staff inadvertently omitted 60.4 acres of commercial property which was changed to that designation by certain 1995-96 FLUM amendments. However, the greater weight of evidence shows that this omission was not significant in terms of the overall collection of data, and it did not render the gathering of the other data as professionally unacceptable. Petitioners go on to contend that the analysis of the data (in determining the supply inventory) was flawed for a number of reasons. First, they argue that the undeveloped portions (around 70 acres or so) of the West Jensen DRI that are commercially-designated land should have been included in the commercial land inventory. The West Jensen DRI is an approximately 180-acre residential/commercial development with a large commercial component. Even though specific site plans have not been issued for some of the undeveloped property, the County excluded all of the undeveloped acreage because the property is dedicated under a master plan of development, and therefore it would be inappropriate to include it as vacant inventory. On this issue, the more persuasive evidence shows that the treatment of undeveloped land in a DRI (subject to a master plan of development) is a "close call" in the words of witness van Vonno, and that it is just as professionally acceptable to exclude this type of undeveloped land from vacant commercial inventory as it is to include it. Therefore, by excluding the West Jensen DRI land from its inventory count, the County's analysis of the data was not flawed, as alleged by Petitioners. The Plan itself does not allow commercial uses within the Industrial land category. However, the County's Land Development Regulations (LDRs) permit certain commercial uses on Industrial lands when done pursuant to specific overlay zoning. While the County (at the urging of the Department) intends to review (and perhaps repeal) these regulations in 2003, and possibly create a new mixed-use category, there are now instances where commercial uses are located on Industrial lands by virtue of the LDRs. Because of this anomaly, Petitioners contend that the County's analysis of the data was flawed because it failed to count vacant, surplus lands in the Industrial land use category that are available for commercial development. Except for arbitrarily allocating all undeveloped industrial land to the commercial category, as Petitioners have proposed here, the evidence does not establish any reasonable basis for making an industrial/commercial division of industrial-designated lands for inventory purposes. Indeed, no witness cited to a similar allocation being made in any other local government's comprehensive plan as precedent for doing so here. In those rare instances where the Plan itself permits multiple uses in a single land category, such as Commercial Office/Residential (an office and multi-family land use designation), the County used a supply figure that was derived from estimating how much land in this category was developed commercially as opposed to residential and allocating acreage from the category based on that percentage. No party has suggested that such a methodology be used here, particularly since the mixed use categories are distinguishable from single land use categories, such as Industrial and Commercial. Moreover, the County has demonstrated a conscious effort to separate these two types of land uses (industrial and commercial) into separate and distinct categories, they are depicted separately on the County's FLUM, and the Plan has separate locational criteria for the siting of these lands. Based on the foregoing, it is found that the County's analysis of the data was not flawed (or professionally unacceptable) because it failed to include undeveloped industrial lands in the commercial inventory. Petitioners next contend that the County erred in its commercial inventory count by failing to include around 30 acres of vacant land located at Witham Field, a local airport. Under the present zoning scheme at the airport, only aviation- related commercial uses are allowed, and thus the vacant land cannot be used for any other commercial purpose. Further, the airport is designated Institutional on the land use map, rather than Industrial, and it would be inappropriate to count vacant institutional lands in the commercial land inventory. Therefore, the exclusion of the Witham Field land from the commercial inventory did not render the County's analysis of the data professionally unacceptable. Finally, the remaining contentions by Petitioners that the County understated its supply inventory for both commercial and industrial property have been considered and rejected. In summary, it is found that the amendments are based on relevant and appropriate data and analyses, and that the data was collected and applied in a professionally acceptable manner. The Blydenstein FLUM Amendment Petitioners generally contend that there is no demonstrated need for the Blydenstein parcel to be redesignated as General Commercial, that the amendment is not based upon data and analysis, that the County failed to coordinate the land use with the availability of facilities and services, that the amendment is inconsistent with redevelopment and infill policies, and that the amendment encourages urban sprawl. The Blydenstein amendment reclassifies 28 acres to commercial use and will amount to 36 percent of the existing commercial development in downtown Indiantown. In terms of need, the County projects that only 17 acres of commercial development will be needed in Indiantown through the year 2015, and there presently exist around 186 acres of undeveloped commercial acreage in that community. At the same time, Amendment 00-01 reflects a deficit of 112 acres of commercial land in the County during the same time period. Although the local and countywide demand calculations are seemingly at odds, at least in the Indiantown area, there will be a surplus of unused commercial lands through the end of the current planning horizon, and thus there from that perspective there is no need for an additional 28 acres of commercial property in that locale. Notwithstanding a lack of numerical need, that consideration is not the sole factor in determining whether the amendment should be approved. As noted earlier, in addition to need, the County considers such factors as the suitability of the property for change, locational criteria, and community desires in making this determination. Here, the subject property is suitable for commercial development because of its location on two major arterial roadways and its ready access to a railroad and major waterway. Further, the property is located within the Primary Urban Services District, which is an area specifically designated for more intense, urban development. In addition, the current land use designation allows 8 residential units per acre, which is an "urban" type of designation. Finally, because there is vacant, undeveloped property surrounding the subject property, the redesignation of the property to General Commercial will not pose a compatibility problem with any residential areas. When these considerations are weighed with the need factor, it is found that the proposed land use change is appropriate. The existing land use designation of Mobile Home Residential is a carryover land use designation which recognized the mobile home use that occurred on the property when the future land use maps were originally created. At the present time, all mobile home use has ceased and the property is vacant. The nearest residential neighborhood is located to the north across State Road 76 beyond the Canal and is at least 600 feet away. Because of the property's configuration and immediate proximity to major arterial roads, railroad tracks, and a canal, the greater weight of evidence shows that it is not suitable for residential development. These considerations support the County's determination that the property has been inappropriately designated as residential for more than a decade. Although the County did not conduct formal studies to determine whether the public facilities and services will be capable of serving the proposed change in land use, a general analysis of the availability and adequacy of public facilities was performed by its staff. That analysis reflects that the property lies within the service area of a local water and sewer utility and has access to two major roadways. Based on its proximity to major roadways and local public utilities, the County does not anticipate that the change in land use will adversely impact public facilities and services. To ensure that this does not occur, the County will require a traffic impact analysis at the time the parcel is submitted for development review. Rule 9J-5.006(3)(b)8., Florida Administrative Code, requires that a plan "[d]iscourage the proliferation of urban sprawl." Leapfrog development is a form of urban sprawl and typically means leaping over a lower density development and placing higher density development just beyond the lower density development. Given the location of the Blydenstein property within the Primary Urban Services District, and the adjacent major arterial roads, railroad, and canal, the greater weight of evidence supports a finding that the proposed land use change will not constitute leapfrog development. The change in land use will not promote, allow, or designate urban development in radial, strip, isolated, or ribbon patterns; it will not result in the premature or poorly planned conversion of rural land; it will not discourage or inhibit infill or redevelopment of existing neighborhoods; it will not result in poor accessibility among linked or related land uses; and it will not result in a loss of significant amounts of functional open space. In the absence of these indicators, it is found that the amendment will not contribute to urban sprawl. The Seven J FLUM Amendment Like the Blydenstein amendment, Petitioners likewise contend that there is a lack of demonstrated need for the Seven J amendment; that the amendment lacks data and analysis; that the County failed to coordinate with the availability of services; that the amendment will promote urban sprawl; and that the amendment is internally inconsistent. The Seven J property is surrounded by the partially built-out West Jensen DRI, is located within the County's Primary Urban Services District, and is considered to be in a "regional hub" of activity, that is, within the core of major commercial development in the northern part of the County. Further, it is located on an eight-lane road at a major intersection (U.S. Highway 1 and Westmoreland Boulevard). Therefore, the change is compatible with surrounding existing and planned commercial uses, and the County's redesignation of the property from Medium Density Residential (8 units per acre) to General Commercial is appropriate. Further, the greater weight of evidence shows that because the property is located within the Primary Urban Services District, is near existing commercial and residential development, and urban services are already provided, the Amendment will not contribute to urban sprawl. Finally, the greater weight of evidence supports a finding that the amendment is internally consistent and based on adequate data and analysis, contrary to Petitioners' assertions.
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 Martin County Plan Amendments 00-01, 01-07, and 97-4 are in compliance. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Environmental and Land Use Center, Inc. 3305 College Avenue Shepard Broad Law Center Fort Lauderdale, Florida 33314-7721 Joan P. Wilcox, Esquire 2336 Southeast Ocean Boulevard, PMP 110 Stuart, Florida 34986 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 David A. Acton, Esquire Office of County Attorney 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Johnathan A. Ferguson, Esquire Ruden, McClosky, Smith, Shuster & Russell, P.A. 145 Northwest Central Park Plaza, Suite 200 Port St. Lucie, Florida 34986-2482 Linda R. McCann, Esquire Royal Palm Financial Center 789 South Federal Highway, Suite 310 Stuart, Florida 34994-2962
